Response to Comments

For the Notice of Proposed Rulemaking:

Protection of the Stratospheric Ozone: 

Adjustments to the Allowance System 

for Controlling HCFC Production, 

Import, and Export

Docket: EPA-HQ-OAR-2011-0354

April 2013

U.S. Environmental Protection Agency

Office of Air and Radiation

Stratospheric Protection Division

1200 Pennsylvania Avenue, NW

Washington, DC 20460
i

Table of Contents

GENERAL SUMMARY OF COMMENTS...........................................................................................................1

1. BASELINES FOR HCFC-22 AND HCFC-142B ALLOWANCES ........................................................................7

1.1. Establishing baselines for 2012–2014 that reflect past inter-pollutant baseline transfers.................7

1.2. Using more recent production and import data to establish baselines for 2015–2019, and whether 

there would be an environmental benefit to doing so........................................................................9

1.3. Whether EPA should approve future inter-pollutant baseline transfers...........................................11

2. FACTORS CONSIDERED IN ALLOCATING AMOUNTS FOR HCFC-22 AND HCFC-142B..............................11

2.1 Surplus inventory of HCFC-22 ............................................................................................................13

2.2 Adjustments for recovery, reclamation, and reuse ...........................................................................14

2.2.1 Projections of reclaim capabilities in the Adjustment Memo ..........................................14

2.2.2 Comments from or about large end users of refrigerant, including supermarkets.........18

2.3 Estimated servicing need for HCFC-22 as presented in the Adjustment Memo................................19

2.4 Effects of dry-shipped HCFC-22 equipment on the HCFC phaseout..................................................21

3. ISSUES RELATED TO THE ARKEMA V. EPA DECISION ..............................................................................27

3.1 Whether EPA should provide recoupment........................................................................................28

3.1.1 Whether the Arkema v. EPA decision should be interpreted as applying to the 2010 

allocation (i.e., recoupment) ............................................................................................28

3.1.2 Whether EPA should provide recoupment for HCFC–22 and HCFC–142b, or just HCFC–22 

allowances ........................................................................................................................33

3.1.3 Whether EPA should provide recoupment for production and consumption, or just 

consumption allowances..................................................................................................33

3.2 Whether EPA should finalize option 1, 2, 3 or 4 to adjust allowances in future control periods to 

reflect the Arkema v. EPA decision (i.e., recoupment) ......................................................................33

3.2.1 Providing recoupment allowances in 2013 in addition to the aggregate level of 

production and consumption specified in the Final Rule (i.e., option 1) .........................34

3.2.2. Allocating recoupment allowances over two years (2013–2014) in addition to the 

aggregate level of production and consumption specified in the Final Rule (i.e., option 2)

..........................................................................................................................................35

3.2.3 Allocating recoupment allowances from the aggregate level of production and 

consumption specified in the Final Rule over two years (2013–2014) (i.e., option 3).....36

3.2.4 Treating missed allowances from 2010 as impossible to recoup (i.e., option 4) .............37

4. HCFC-22 AND HCFC-142B ALLOCATIONS IN 2012-2014 .........................................................................38

4.1 Decreasing HCFC-22 consumption allowances relative to the 2009 Final Rule.................................40

4.2 Amount of HCFC-22 production allowances relative to the 2009 Final Rule.....................................50

4.2.1 Whether EPA can decouple the percentage of baseline allocated for production and 

consumption.....................................................................................................................50

4.2.2 Whether EPA should increase the percentage of baseline allocated for production .....51
ii

4.2.3 Whether an increase in the number of HCFC–22 production allowances would result in 

an increase in HCFC consumption and production...........................................................53

4.3 HCFC-142b consumption and production allowance allocations......................................................54

5. OTHER ISSUES .........................................................................................................................................55

5.1 HCFC supply, price, and economic conditions...................................................................................57

5.2 Providing allowances to reclaimers....................................................................................................63

5.3 Providing allowances to manufacturers of HCFC blends...................................................................66

5.4 Potential impacts of the proposed rule on small entities and consumers ........................................67

5.5 Timely completion of the rule............................................................................................................71

5.6 Compliance and enforcement issues.................................................................................................73
1

GENERAL SUMMARY OF COMMENTS

This document summarizes comments on the proposed rule, Protection of the Stratospheric Ozone: Adjustments 

to the Allowance System for Controlling HCFC Production, Import, and Export, which are found in EPA’s docket,

EPA-HQ-OAR-2011-0354. A total of 124 comments were submitted and are listed in Table 1 by document ID and 

organization. Thirteen of these comments were submitted after the close of the comment period on February 3, 

2012. Another 14 are comments that EPA received following publication of the August 5, 2011 Interim Final 

Rule, which has the same name as the proposed rule and covers related issues.

The docket also contains comments with multiple signatories. These signatories are listed individually in the 

table below. In the comments sections, two comments are listed by their group name, “Group of EPA Certified 

ODS Reclaimers,” and “Rapid Recovery Franchise Partners,” and contain 20 and 21 signatories, respectively. In 

addition, the docket contains multiple comments that were submitted by individuals associated with Johnstone 

Supply.

Table 1. Public Comments Received by EPA on the Adjustments to the Allowance System for Controlling HCFC 

Production, Import, and Export

Count Document ID Organization

1 A & M Heating, Air Conditioning & Refrigeration, Inc. EPA-HQ-OAR-2011-0354-0077

2 Able Distributors EPA-HQ-OAR-2011-0354-0147

3 Air Conditioning Contractors of America (ACCA) EPA-HQ-OAR-2011-0354-0081

4 Air-Conditioning, Heating, and Refrigeration Institute (AHRI) EPA-HQ-OAR-2011-0354-0072

5

Airgas, Inc.

EPA-HQ-OAR-2010-1040-0022a

6 EPA-HQ-OAR-2011-0354-0079

7 APR Supply Co. EPA-HQ-OAR-2011-0354-0148

8

Arkema Inc.

EPA-HQ-OAR-2010-1040-0028a

9 EPA-HQ-OAR-2011-0354-0073

10 AZ Refrigerant Abatement, Inc EPA-HQ-OAR-2011-0354-0053

11 Bay Area Refrigerant Recovery, Inc EPA-HQ-OAR-2011-0354-0080

12 Bettcher Enterprises, Inc EPA-HQ-OAR-2011-0354-0056

13 BRYANS UNITED AIR CONDITIONING EPA-HQ-OAR-2011-0354-0118

14 Bryson Insurance EPA-HQ-OAR-2011-0354-0135

15 Carroll Area Development Corporation EPA-HQ-OAR-2011-0354-0159b

16 Center for Energy Efficiency and Sustainability, Ingersoll Rand EPA-HQ-OAR-2011-0354-0063

17 Certified Refrigerant Services Inc. EPA-HQ-OAR-2011-0354-0057

18 Coburn Supply Company, Inc. EPA-HQ-OAR-2011-0354-0149

19 Consolidated Refrigerant Reclaim EPA-HQ-OAR-2011-0354-0083

20 Coolgas, Inc. EPA-HQ-OAR-2011-0354-0088b

21 Cottongim Heating & Cooling EPA-HQ-OAR-2011-0354-0154

22 DALHOUSIE UNIVERSITY EPA-HQ-OAR-2011-0354-0091

23 Delta Ice Air & Heat, Inc. EPA-HQ-OAR-2011-0354-0138
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

Page 2

Count Document ID Organization

24 Dermid Enterprises, LLC EPA-HQ-OAR-2011-0354-0113

25 Doug's Refrigeration EPA-HQ-OAR-2011-0354-0116

26

DuPont

EPA-HQ-OAR-2010-1040-0020a

27 EPA-HQ-OAR-2011-0354-0070

28 E.A.S.E. LLC EPA-HQ-OAR-2011-0354-0107

29 Energy Specialists Air Conditioning Co. EPA-HQ-OAR-2011-0354-0109

30 Express Heating and Air Conditioning Services LLC EPA-HQ-OAR-2011-0354-0137

31

Express Recovery, Inc

EPA-HQ-OAR-2011-0354-0050c

32 EPA-HQ-OAR-2011-0354-0075

33

Food Marketing Institute (FMI)

EPA-HQ-OAR-2011-0354-0157b

34 EPA-HQ-OAR-2011-0354-0158b

35 Fountainbleau Management Services, LLC EPA-HQ-OAR-2011-0354-0139

36

Golden Refrigerant

EPA-HQ-OAR-2011-0354-0054

37 EPA-HQ-OAR-2010-1040-0025a

38 Goodman Global, Inc. EPA-HQ-OAR-2011-0354-0084

39 Greens Services Inc. EPA-HQ-OAR-2011-0354-0090

40 Greer Holdings, LLC EPA-HQ-OAR-2011-0354-0052

41

Group of EPA Certified ODS Reclaimers

EPA-HQ-OAR-2011-0354-0085d

Aerosys Inc.

Airgas Refrigerants, Inc.

AllCool Refrigerant Reclaim

American Refrigerants, Inc.

Certified Refrigerant Services, Inc.

Consolidated Refrigerant Reclaim

Coolgas, Inc.

ICOR International

J.R.’s Appliance Disposal

Novent Refrigerant Services

Refrigerant Exchange Corp.

Refrigerants Inc.

REMTEC International

Perfect Cycle CFC Group

Pure Chem Separation LP

RMS of Georgia

Safe Disposal Systems, Inc. 

SpecGas Inc.
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

Page 3

Count Document ID Organization

Summit Refrigerants

Total Reclaim, Inc.

42 Harrell's A/C & Heating Services EPA-HQ-OAR-2011-0354-0104

43 Heating, Air-Conditioning and Refrigeration Distributors International EPA-HQ-OAR-2011-0354-0069

44 Highland Electric Heat & Air LLC EPA-HQ-OAR-2011-0354-0096

45 Hinton A/C Services EPA-HQ-OAR-2011-0354-0106

46

Honeywell

EPA-HQ-OAR-2011-0354-0082

47 EPA-HQ-OAR-2010-1040-0029a

48 Houston Refrigerant Recovery, LLC EPA-HQ-OAR-2011-0354-0060

49

Hudson Technologies Company

EPA-HQ-OAR-2010-1040-0027a

50 EPA-HQ-OAR-2011-0354-0071

51 HVAC Service Solutions EPA-HQ-OAR-2011-0354-0115

52 ICOR International Inc. EPA-HQ-OAR-2010-1040-0031a

53

Johnstone Supply

EPA-HQ-OAR-2011-0354-0095

54 EPA-HQ-OAR-2011-0354-0097

55 EPA-HQ-OAR-2011-0354-0098

56 EPA-HQ-OAR-2011-0354-0099

57 EPA-HQ-OAR-2011-0354-0101

58 EPA-HQ-OAR-2011-0354-0120b

59 EPA-HQ-OAR-2011-0354-0124

60 EPA-HQ-OAR-2011-0354-0132

61 EPA-HQ-OAR-2011-0354-0133

62 EPA-HQ-OAR-2011-0354-0136

63 EPA-HQ-OAR-2011-0354-0140

64 EPA-HQ-OAR-2011-0354-0145

65 EPA-HQ-OAR-2011-0354-0153

66 LA Refrigerant Recovery, Inc EPA-HQ-OAR-2011-0354-0051

67 Lemoine Marine Refrigeration, Inc EPA-HQ-OAR-2011-0354-0127

68 Lennox International Inc. EPA-HQ-OAR-2011-0354-0061

69

Mayeux's A/C & Heating, Inc.

EPA-HQ-OAR-2011-0354-0093

70 EPA-HQ-OAR-2011-0354-0094

71 MDA Manufacturing, Inc. EPA-HQ-OAR-2010-1040-0030a

72 Mexichem Fluor Inc. EPA-HQ-OAR-2011-0354-0066

73 Mondy Global, Inc. EPA-HQ-OAR-2011-0354-0055

74 National Multi Housing Council (NMHC)

EPA-HQ-OAR-2011-0354-0156b,e

National Apartment Association (NAA)
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

Page 4

Count Document ID Organization

75 National Refrigerants, Inc. (NRI) EPA-HQ-OAR-2011-0354-0068

76

Natural Resources Defense Council (NRDC)

EPA-HQ-OAR-2011-0354-0067f Institute for Governance & Sustainable Development (IGSD)

Environmental Investigation Agency (EIA)

77 Natural Resources Defense Council (NRDC) EPA-HQ-OAR-2010-1040-0033a

78 NORDYNE EPA-HQ-OAR-2011-0354-0089

79 Perfect Score Technologies, LLC EPA-HQ-OAR-2011-0354-0150b

80 Perry’s Electric, Inc. EPA-HQ-OAR-2011-0354-0131

81 Polar Technology EPA-HQ-OAR-2011-0354-0076

82

Private Citizen Comment

EPA-HQ-OAR-2011-0354-0100

83 EPA-HQ-OAR-2011-0354-0102

84 EPA-HQ-OAR-2011-0354-0103

85 EPA-HQ-OAR-2011-0354-0110

86 EPA-HQ-OAR-2011-0354-0111

87 EPA-HQ-OAR-2011-0354-0112

88 EPA-HQ-OAR-2011-0354-0119b

89 EPA-HQ-OAR-2011-0354-0121b

90 EPA-HQ-OAR-2011-0354-0123b

91 EPA-HQ-OAR-2011-0354-0125

92 EPA-HQ-OAR-2011-0354-0126

93 EPA-HQ-OAR-2011-0354-0128

94 EPA-HQ-OAR-2011-0354-0129

95 EPA-HQ-OAR-2011-0354-0130

96 EPA-HQ-OAR-2011-0354-0134

97 EPA-HQ-OAR-2011-0354-0142

98 EPA-HQ-OAR-2011-0354-0143b

99 EPA-HQ-OAR-2011-0354-0144b

100 EPA-HQ-OAR-2011-0354-0146

101 EPA-HQ-OAR-2011-0354-0151

102 EPA-HQ-OAR-2011-0354-0152

103 EPA-HQ-OAR-2011-0354-0155

104

Rapid Recovery Franchise Partners

EPA-HQ-OAR-2011-0354-0086g

Georgia Carolina Refrigerant Recovery, Inc.

AZ Refrigerant Abatement, Inc.

SLC Abatement, Inc.

Abatement and Recovery Services of WA, Inc.
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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Count Document ID Organization

Southeast Refrigerant Recovery, Inc.

Bay Area Refrigerant Recovery, Inc.

Mid-South Refrigerant Abatement, LLC

Sacramento Refrigerant Recovery, Inc

Houston Refrigerant Recovery, LLC

Greer Holdings, LLC

Express Recovery, Inc.

Bettcher Enterprises, Inc.

KC Refrigerant Recovery Services, Inc

SAMCOM, Inc.

Rocky Mountain Refrigerant Abatement, LLC

Refrigerant Recovery, Inc.

Landco Industrial Services, LLC

Rhynard and White Enterprises, Inc.

LA Refrigerant Recovery, Inc.

RR Operations, LLC

John Thompson

105 Regional Mechanical EPA-HQ-OAR-2011-0354-0117

106 RemTec International EPA-HQ-OAR-2010-1040-0024a

107 Rheem Manufacturing Company EPA-HQ-OAR-2011-0354-0087

108 Rhynard and White Enterprises, Inc. EPA-HQ-OAR-2011-0354-0058

109 RMS of Georgia, LLC EPA-HQ-OAR-2011-0354-0078

110 Rocky Mountain Refrigerant Abatement, LLC EPA-HQ-OAR-2011-0354-0059

111 RSS Realtors EPA-HQ-OAR-2011-0354-0105

112

Solvay Fluorides, LLC

EPA-HQ-OAR-2010-1040-0026a,h

113 EPA-HQ-OAR-2011-0354-0064a,h

114 Southeast Refrigerant Recovery, Inc. EPA-HQ-OAR-2011-0354-0074

115 Summit Refrigerants EPA-HQ-OAR-2011-0354-0062

116 Surgi's Heating and Air Conditioning EPA-HQ-OAR-2011-0354-0114

117 Sustainable Energy Solutions LLC EPA-HQ-OAR-2011-0354-0141

118 T.L. Maintenance HVAC EPA-HQ-OAR-2011-0354-0092

119 Thermal Solutions LLC EPA-HQ-OAR-2011-0354-0108

120 Tri-Parish A/C & Refrigeration, L.L.C. EPA-HQ-OAR-2011-0354-0122b

121

USA Refrigerants 

EPA-HQ-OAR-2010-1040-0021a

122 EPA-HQ-OAR-2010-1040-0023a

123 UTC Climate EPA-HQ-OAR-2011-0354-0065
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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Count Document ID Organization

124 Williams & Associates EPA-HQ-OAR-2010-1040-0032a

a. Comment on 2011 Interim Final Rule. b. Comment was submitted after the close of the comment period on February 3, 2012. c. Duplicate copy of EPA-HQ-OAR-2011-0354-0075. All Express Recovery, Inc. comments are listed under EPA-HQ-OAR2011-0354-0075 in the following sections. d. For the remainder of the document, the collective group of 20 reclaimer signatories will be referred to as “Group of 

EPA Certified ODS Reclaimers.” e. EPA-HQ-OAR-2011-0354-0156 was collectively submitted by the National Multi Housing Council (NMHC) and National 

Apartment Association (NAA). f. EPA-HQ-OAR-2011-0354-0067 was collectively submitted by the Natural Resources Defense Council (NRDC), the 

Institute for Governance & Sustainable Development (IGSD), and the Environmental Investigation Agency (EIA). g. For the remainder of the document, the collective group of 21 reclaimer signatories will be referred to as “Rapid 

Recovery Franchise Partners.” h. This comment was submitted on behalf of Solvay Fluorides, LLC and Solvay Solexis.

All comments have been reviewed, summarized, and organized by main topics within the remainder of this 

document to highlight major issues and clarify requests pertinent to the rule. Summaries are organized by the 

following main topics of stakeholder concern:

• Section 1 – Baselines for HCFC-22 and HCFC-142b Allowances

• Section 2 – Factors Considered in Allocating Amounts for HCFC-22 and HCFC-142b

• Section 3 – Issues Related to the Arkema v. EPA Decision

• Section 4 – HCFC-22 and HCFC-142b Allocations in 2012-2014

• Section 5 – Other Issues

For the purpose of this comment summary, section organization does not exactly follow the outline established 

in the proposed rule, but follows a logical order of discussion; the selection and organization of these section 

topics are based on topic frequency and whether EPA sought specific comments on the issue. 

At the beginning of each section, an outline of topics is provided followed by a table detailing commenters that 

contributed comments, which is organized by document ID. Below each individual topic heading of a section, a 

bulleted list of comments is provided. Special attention was paid to ensure that comments were properly 

addressed with sufficient and relevant detail extracted from their submittal. Commenters are listed at the 

beginning and Docket ID numbers are provided in parentheses at the end of each comment. 

The majority of comments submitted to EPA express support for EPA in its commitment to the Montreal 

Protocol and reduction of ozone-depleting substances for public and environmental health interests. Comments 

deal primarily with EPA’s request for comments regarding HCFC allocations in 2012-2014. Commenters were 

split between supporting a reduction and opposing a reduction. However, a slight majority of the organizations 

commenting supported the reduction of HCFC-22 consumption allowances relative to the 2009 Final Rule, with 

many of those commenters supporting at least a 20 percent or greater reduction. Commenters also generally 

supported the decoupling of production and consumption allowances. In addition, of the nine entities 

commenting on recoupment, seven were in opposition. Comments regarding the Adjustment Memo generally 

supported the concept that the reclamation industry is able to increase its current capacity, and many 

commenters also noted concerns about an oversupply and low price for HCFC-22. Several commenters 

expressed concern regarding the timing of the proposed and final rules’ release and effect on the HVACR 

industry and consumers. Commenters requested swift and clear direction from EPA. Commenters further 

expressed the need for enforcement to ensure a smooth phaseout.
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

Page 7

1. BASELINES FOR HCFC-22 AND HCFC-142B ALLOWANCES 

1.1 Establishing baselines for 2012–2014 that reflect past inter-pollutant baseline transfers

1.2 Using more recent production and import data to establish baselines for 2015–2019, and 

whether there would be an environmental benefit to doing so

1.3 Whether EPA should approve future inter-pollutant baseline transfers

Count Commenter Organization Document ID No

1 Diran Yegparian Mondy Global, Inc. EPA-HQ-OAR-2011-0354-0055

2 Don Magid Solvay Fluorides, LLC EPA-HQ-OAR-2011-0354-0064

3 Steven H. Bernhardt Honeywell EPA-HQ-OAR-2011-0354-0082

4 Mack McFarland DuPont EPA-HQ-OAR-2011-0354-0070

5 William J. Hamel Arkema Inc. EPA-HQ-OAR-2011-0354-0073

6 Mack McFarland DuPont EPA-HQ-OAR-2010-1040-0020

7 Steven H. Bernhardt Honeywell EPA-HQ-OAR-2010-1040-0029

8 Don Magid Solvay Fluorides, LLC EPA-HQ-OAR-2010-1040-0026

1.1. Establishing baselines for 2012–2014 that reflect past inter-pollutant 

baseline transfers

EPA received comments from two companies that support the baselines used in the proposal for 2012-2014. 

Two other companies do not support the proposed baselines.

Arkema and Solvay support EPA’s inclusion of past inter-pollutant transfers of baseline allowances. 

 Arkema and Solvay support EPA’s interpretation of the D.C. Circuit’s decision in Arkema v. EPA with regard 

to baseline allowances. Arkema states that the question of baseline allowances was a straightforward 

problem and was correctly settled in the Interim Final Rule providing 2011 HCFC-22 and HCFC-142b baseline 

allowances, published on August 5, 2011.[0073, 0064]

EPA Response: EPA agrees with the commenters that the baselines used in the proposed rule are consistent with 

the U.S. Court of Appeals for the D.C. Circuit’s decision in Arkema v. EPA. A more complete discussion of the 

baselines used in the final rule is available in section IV.A.1. of the preamble and in the 2011 Interim Final Rule 

(76 FR 47451).

DuPont and Honeywell expressed concern and opposition regarding EPA’s proposed method for establishing 

baselines. 

 DuPont is concerned with the proposed readjustments in baselines and the economic harm it will cause 

DuPont. DuPont asserts that the U.S. Court of Appeals for the District of Columbia Circuit decision in Arkema 

v. EPA did not address the validity of Arkema's and Solvay's 2008 transfers, but rather simply assumed they 

were valid for purposes of the challenge to the 2009 Final Rule. Thus, DuPont comments that the Arkema 

decision does not mandate that EPA simply assume the validity of those transfers. The commenter believes 

that amending Arkema’s and Solvay’s baselines to account for their 2008 inter-pollutant transfers violates 

the CAA and DuPont’s due process rights. DuPont believes a more prudent course would be for EPA to grant 

the pending joint petition for reconsideration of the approval of those 2008 transfers filed by DuPont and 

Honeywell. DuPont comments that granting this petition would not prevent the agency from adopting its 

proposed decoupling and reductions in consumption allowances, and would result only in the proper 

readjustment of individual company baselines. [0070, 0020]
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

Page 8

Honeywell objects to the Proposed Rule’s method for establishing baselines. According to the commenter, 

EPA’s underlying assumption in the Proposed Rule is that the D.C. Circuit’s decision in Arkema mandates the 

establishment of baselines that recognize the 2008 transfers by Arkema and Solvay of HCFC-142b into HCFC22 on a permanent basis. Honeywell believes both the Clean Air Act and EPA policy prohibit such permanent 

transfers. Furthermore, Honeywell believes that the method and allocation EPA now proposes violates the 

Arkema decision and fundamental concepts of due process. Honeywell also incorporated its previous 

comments on this issue (a petition to EPA submitted Oct. 6, 2010, and the petitioners’ briefs in Honeywell 

International Inc. v. EPA) by reference. [0082]

Honeywell believes the D.C. Circuit decision in Arkema did not address the validity of the 2008 interpollutant transfers by Arkema and Solvay, but rather assumed they were valid for purposes of the challenge 

to the 2009 Final Rule. Thus, Honeywell does not believe that EPA is mandated by that decision simply to 

recognize the validity of those transfers. Instead, Honeywell believes EPA should grant the pending petition 

for reconsideration of these transfers filed jointly by Honeywell and DuPont. Honeywell states that if EPA 

determines that the transfers are void ab initio, EPA’s justification for the Interim Rule’s allocation of 

baseline would be moot. The commenter states that very issue is the subject of pending litigation involving 

Honeywell and EPA before the D.C. Circuit. Honeywell notes that were the Court to vacate the four 2008 

transfers, EPA would have no choice but to begin another rulemaking, as the Proposed Rule is erroneously 

premised on the legitimacy of those transfers. [0082, 0029]

Honeywell comments that EPA’s decision to approve inter-pollutant transfers in 2008 was not consistent 

with the CAA or EPA’s own regulations. Honeywell notes that inter-pollutant transfers and inter-company 

transfers are treated quite differently under the terms of the CAA statute. Under §607(b) of the CAA, interpollutant transfers of allowances may occur only on a current year basis. The provision governing intercompany transfers – § 607(c) – contains no such temporal restriction. Honeywell states that EPA’s 

regulations are consistent with this view of § 607(b). Honeywell notes the subsection dealing with interpollutant transfers refers repeatedly to the “control period,” which is defined in EPA regulations as a 

calendar year. 

Honeywell further comments that in the Proposed Rule, EPA has departed from the clear language of 

the statute and the provisions of its own regulations that distinguish inter-pollutant transfers from intercompany intra-pollutant transfers on the grounds that inter-pollutant transfers are available only for the 

current “control period” (i.e., year). Honeywell urges EPA to change its approach and act consistently 

with the statute and EPA’s regulations. [0082]

Honeywell comments that EPA’s approach fails to follow the agency’s original interpretation of its transfer 

regulations that the “phase-down follows the allowance” – in other words, that any inter-pollutant transfer 

is subject to the phase-down of the transferred chemical. Honeywell states that EPA may not change this 

interpretation without notice-and-comment rulemaking. Honeywell believes that to the extent that EPA 

intends to grant Arkema and Solvay additional allowances in 2012-2014 to reflect the 2008 transfers, it must 

reduce those allowances by the same percent that the agency is phasing out HCFC-142b. Honeywell 

comments that only in that way will the transferred allowances fairly reflect EPA’s ongoing effort to meet 

the Clean Air Act’s mandate to accelerate the phaseout of HCFCs. [0082]

Honeywell further notes that EPA’s authority to promulgate regulations is limited to those which are 

reasonable and not arbitrary and capricious, citing Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 

837, 842-844 (1984). Under the Court decision, HCFC-22 baseline transferred from HCFC-142b is considered 

“vested.” The Proposed Rule responds to the Arkema ruling by increasing the share of the baseline awarded 

to Arkema and Solvay. The share of the baseline awarded to Honeywell and other holders of baseline is 

accordingly reduced. Honeywell believes this result is arbitrary and capricious: Honeywell and others' share 
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

Page 9

of the baseline is vested and therefore Honeywell does not think it may be invaded by EPA to award to other 

participants. Honeywell comments that they are injured by the Proposed Rule, which increases the annual 

allocation of HCFC-22 allowances to Arkema and Solvay. As a consequence of these transfers, Honeywell 

notes that they suffer a decrease in the total number of HCFC-22 annual production and/or consumption 

allowances allocated to them, a dilution in the value of those HCFC-22 production and consumption 

allowances, a decrease in their share of the demand market, and other potential injuries. Honeywell urges 

EPA to adopt an allocation scheme that does not take from the vested rights of Honeywell and other 

baseline holders to give to Arkema and Solvay to protect their vested rights. [0082]

EPA Response: As discussed in this final rule and the 2011 Interim Final Rule (76 FR 47451), the decision in 

Arkema v. EPA required EPA to consider the 2008 inter-pollutant transfers in setting the baselines for future 

allocations, at least to the extent EPA continues to use the historical production and consumption baselines. The 

D.C. Circuit recently held that Arkema v. EPA forecloses challenges to the 2008 transfers. Honeywell

International, Inc. v. EPA, D.C. Cir. No. 10-1347 (January 22nd, 2013). A more complete discussion of the baselines 

used in the final rule is available in section IV.A.1. of the preamble and in the 2011 Interim Final Rule (76 FR 

47451). The full response to this comment is in section IV.A.1. of the preamble.

1.2. Using more recent production and import data to establish baselines for 

2015–2019, and whether there would be an environmental benefit to 

doing so

EPA received two comments supporting the use of 2005-2007 production and import data to establish baselines

for 2015-2019 and two other comments stating that EPA should not revise company baselines.

Honeywell and DuPont believe that 2005-2007 data should be used to establish baselines. 

 Honeywell and DuPont support the idea that the 2015-2019 allocation period should use the highest 

production and import levels for HCFC-22 between 2005-2007 rather than the 1994-1997 baseline.

Honeywell believes baselines should be updated to more accurately reflect current market conditions.

Honeywell suggests that EPA should revise each producer’s and importer’s production and consumption 

baselines by allowing each entity to select its highest year of actual production and consumption from 

among the calendar years 2005, 2006, and 2007. Honeywell states that EPA has set a precedent for using 

the period 2005-2007 since it chose to use that same period as the baseline for newly-controlled HCFCs. (74 

Fed. Reg. 66412 (Dec. 15, 2009)). Honeywell believes those three years are best suited to be the baseline 

here, too, because they are the three years nearest in time to the present that both represent relatively 

stable market conditions and were not influenced by the 2009 Final Rule. Honeywell believes using more 

recent years would be inappropriate: 2008 and 2009 production and consumption were negatively impacted 

by the economic downturn and are not fairly representative years; 2010 and 2011 are inappropriate as they 

fell under the 2009 Final Rule and thus already reflect the initial 2010-2014 step-down period reductions.

Honeywell notes that allowing each baseline allowance holder to select the highest year of the three years 

allows for the smoothing of year-to-year variability. [0070, 0082]

DuPont notes that to assign company baselines for the HCFCs for which no baselines had been established in 

the 2003 Final Rule, EPA utilized 2005-2007 data to "ensure that the baseline reflects the current market as 

closely as possible...” in the 2009 Final Rule. This methodology followed past practice with respect to 

establishing baselines for HCFC-141b, HCFC-22 and HCFC-142b. DuPont notes that EPA has also chosen to 

implement a "worst first" policy for HCFCs, integral to which is a limited lifespan for HCFC allowances and 

allowances derived from an HCFC subject to 100 percent phase-out. HCFC allowances, even if transferred 

from one HCFC to another every calendar year do not live on in perpetuity; instead, when the underlying 

HCFC source of an allowance is completely phased out, so too are all allowances derived from the HCFC.
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

Page 10

DuPont believes the agency should continue to follow these past practices and take further action to revise 

all HCFC baselines through consideration of a company's highest reported consumption and production of 

such HCFCs during the years 2005-2007. DuPont notes that this action would reset baselines to reflect the 

current market as closely as possible and avoid rewarding companies for attempting to manipulate their 

baselines by converting allowances from HCFCs that they knew would have no future value to HCFC 

allowances they knew would retain value in the current step down period and beyond. [0070]

DuPont notes that in discussion of Arkema, the Court stated that "the Agency is certainly entitled to ... 

institute a program that forbids baseline inter-pollutant transfers in the future.” The Court in Arkema also 

agreed that EPA "may interpret what constraints, if any, Congress placed on the establishment of baselines 

for each step-down period.” DuPont notes that EPA thus has ample discretion under the CAA to update 

HCFC-22 baselines and encourages the agency to undertake this action utilizing the 2005-2007 production 

and consumption period. Given that EPA has considered different baseline allocation methodologies since 

2001 and reconsidered updating baselines in 2008-2009 as part of the 2009 Final Rule, DuPont sees no 

reason why EPA cannot act in a more expeditious manner. DuPont urges EPA to take action on this matter at 

the earliest possible time and not to consider reallocation of HCFC allowances as inextricably tied to the next 

regulatory step down period of 2015-2019. [0070]

EPA Response: EPA is not updating the baselines for 2012-14. In the notice of proposed rulemaking, the agency 

did not take comment on changing baselines in 2012-2014. This was because the agency did not believe there 

would be adequate time to make a significant change to baselines or to adopt other allocation options in the 

current regulatory period. In addition, evaluating and implementing such a change could have injected

additional uncertainty into the market in the short term. For these reasons, EPA did not propose, and is not 

finalizing, changed baselines for 2012-14.

EPA remains open to revising the allowance system and baselines in the future. Several options EPA could use 

were discussed in the 2009 Final Rule (74 FR 66412) and could be explored in more detail. However, EPA would 

want to weigh whether updating baselines or changing the allocation system five years before the complete 

phaseout of HCFC-22 would provide sufficient benefit (particularly environmental benefit) to justify the time and 

potential burden. In addition, if EPA were to consider updating baselines, EPA would want to assess whether and 

how the 2008 inter-pollutant transfers should be taken into account. EPA agrees that it has made past 

statements indicating that once an HCFC is phased out (not phased down), all baseline allowances associated 

with that HCFC are also phased out (as discussed further in section V.A. of the preamble to the final rule). EPA 

will continue to review these issues as it develops the proposed 2015-2019 HCFC allocation.

Solvay and Mondy Global Inc. state that EPA should continue to use existing baselines.

 Mondy Global Inc. comments that EPA should not revise company baselines for the 2015-2019 allocation 

period. They believe that EPA’s current allocation method is the fairest way to allocate allowances because 

it is transparent and clear. Market participants know what their baselines are and thus can anticipate their 

share of the allocation in relation to other companies, which is critical for business planning. Therefore, 

continuing to use existing baselines would be the least disruptive to the market. [0055]

Solvay believes there is no benefit to using more recent data to establish baselines for 2015-2019, and no 

benefit to a lengthy process to potentially distribute the same number of allowances. However, Solvay 

believes that further reductions in the number of allowances that EPA issues in future calendar years will 

benefit the environment by promoting reclamation. [0064]

EPA Response: See previous response. Additionally, no comments were received indicating there is an 

environmental benefit to revising baselines in the future. However, the agency will continue to evaluate all 

options before establishing allowances for the 2015-2019 regulatory period.
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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1.3. Whether EPA should approve future inter-pollutant baseline transfers

EPA received two comments on EPA’s proposed changes to the regulatory text covering future allowance 

transfers. Mondy Global Inc. supports EPA’s proposed changes, while Solvay does not.

 Mondy Global Inc. supports EPA’s proposed changes to the regulatory text prohibiting permanent transfers 

of baseline allowances because it will prevent future manipulation of the allowance program. According to 

the commenter, the CAA plainly prohibits permanent inter-pollutant transfers. [0055]

EPA Response: As discussed in the proposed rule and in the 2011 Interim Final Rule, EPA is concerned that 

allowing inter-pollutant baseline transfers could undermine the HCFC phaseout program and is therefore 

finalizing the changes to the regulatory text. EPA believes the CAA language is ambiguous but is best read as 

prohibiting permanent inter-pollutant transfers. A more complete response is available in section V. of the 

preamble to the final rule.

 Solvay comments that EPA should revisit its thinking on future inter-pollutant baseline transfers. Solvay 

disagrees with EPA’s statement in the preamble that EPA will not recognize inter-pollutant transfers when it 

updates the baseline in preparation for the 2015-2019 step-down period. Solvay disagrees with EPA’s 

concern that by recognizing permanent inter-pollutant transfers in future baseline calculations, companies 

could ‘game’ the system by making transfers from substances that are being phased out into allowances for 

substances that may still be used. Solvay notes that in 2008 and 2009 it converted the vast majority of its

HCFC-142b allowances into HCFC-22 allowances for sale to US customers, continuing a practice it began in 

2006 and which EPA acknowledged in 2009. Solvay comments that they made these inter-pollutant transfers 

because it was in Solvay and its customers’ interest to engage in those transactions. Solvay notes these were 

market-driven transactions, which EPA seeks to promote. [0064]

Solvay suggests that for 2015-2019, EPA could permit permanent inter-pollutant transfers to be converted 

from one control period to another only if substantial allowance conversions and market activity has taken 

place before the last year of a control period. Solvay believes that mere paper transactions should be 

disallowed, but transactions that have actually taken place in the market should be recognized. Solvay notes 

that it has considered the precedent such a blanket rule [i.e. not recognizing inter-pollutant transfers] might 

have on any future cap-and-trade policy administered by EPA. Solvay envisions a scenario where an 

allowance holder could change the focus of its business to produce and sell a substance that is relatively less 

harmful to the environment. However, Solvay believes that if a company cannot be guaranteed allowances 

in future years, the company may decide that the cost is too great to justify production of that substance for 

just a limited time. The result would be greater production and sale of a substance that is more harmful to 

the environment and a lack of competition and innovation. [0064]

EPA Response: EPA is not considering in this action whether permanent inter-pollutant transfers should be 

allowed in other current or future cap-and-trade programs. EPA’s policy and legal interpretation regarding interpollutant transfers in the stratospheric ozone program are specific to the structure of the program and the 

language of section 607 of the CAA. A response to the remainder of this comment is available in section V. of the 

preamble to the final rule.

2. FACTORS CONSIDERED IN ALLOCATING AMOUNTS FOR HCFC-22 

AND HCFC-142B

EPA received 43 comments (signed by multiple commenters) on factors considered in allocating HCFC 

allowances. Comments were in reference to four main topics:
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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2.1 Surplus inventory of HCFC-22

2.2 Adjustments for recovery, reclamation, and reuse

2.2.1 Projections of reclaim capabilities in the Adjustment Memo

2.2.2 Comments from or about large end users of refrigerant, including supermarkets

2.3 Estimated servicing need for HCFC-22 as presented in the Adjustment Memo

2.4 Effects of dry-shipped HCFC-22 equipment on the HCFC phaseout

Count Commenter Organization Document ID No

1 David Doniger Natural Resources Defense Council (NRDC) EPA-HQ-OAR-2011-0354-0067

2 William J. Hamel Arkema Inc. EPA-HQ-OAR-2011-0354-0073

3 Rick Roland Certified Refrigerant Services Inc. EPA-HQ-OAR-2011-0354-0057

4 Karim Amrane AHRI EPA-HQ-OAR-2011-0354-0072

5 Rich Dykstra Consolidated Refrigerant Reclaim EPA-HQ-OAR-2011-0354-0083

6 Gary L. Clark Goodman Global, Inc. EPA-HQ-OAR-2011-0354-0084

7 RemTec International Group of EPA Certified ODS Reclaimers EPA-HQ-OAR-2011-0354-0085

8 Steven H. Bernhardt Honeywell EPA-HQ-OAR-2011-0354-0082

9 Stephen P. Mandracchia Hudson Technologies Company EPA-HQ-OAR-2011-0354-0071

10 Jerry Dykstra Rapid Recovery Franchise Partners EPA-HQ-OAR-2011-0354-0086

11 A. Stephen Trevino Summit Refrigerants EPA-HQ-OAR-2011-0354-0062

12 Mack McFarland DuPont EPA-HQ-OAR-2011-0354-0070

13 Don Magid Solvay Fluorides, LLC EPA-HQ-OAR-2011-0354-0064

14 Walt Baker Polar Technology EPA-HQ-OAR-2011-0354-0076

15 Michael Bleier Able Distributors EPA-HQ-OAR-2011-0354-0147

16 Charles McCrudden ACCA EPA-HQ-OAR-2011-0354-0081

17 John Tice APR Supply Co. EPA-HQ-OAR-2011-0354-0148

18 Jeff Moe Center for Energy Efficiency and Sustainability, 

Ingersoll Rand EPA-HQ-OAR-2011-0354-0063

19 Don Maloney Coburn Supply Company, Inc. EPA-HQ-OAR-2011-0354-0149

20 Colt Anderson Cottongim Heating & Cooling EPA-HQ-OAR-2011-0354-0154

21 Jonathan Melchi Heating, Air-Conditioning and Refrigeration 

Distributors International EPA-HQ-OAR-2011-0354-0069

22 Kyle E. Gilley Lennox International Inc. EPA-HQ-OAR-2011-0354-0061

23 David Lambert NA EPA-HQ-OAR-2011-0354-0126

24 Maureen Beatty National Refrigerants, Inc. (NRI) EPA-HQ-OAR-2011-0354-0068

25 Michael Seabaugh NORDYNE EPA-HQ-OAR-2011-0354-0089

26 Karen B. Meyers Rheem Manufacturing Company EPA-HQ-OAR-2011-0354-0087

27 John Mandyck UTC Climate EPA-HQ-OAR-2011-0354-0065

28 M. J. Dermid Dermid Enterprises, LLC EPA-HQ-OAR-2011-0354-0113

29 John M. Batt Airgas, Inc. EPA-HQ-OAR-2011-0354-0079

30 Joel K. French Coolgas, Inc. EPA-HQ-OAR-2011-0354-0088

31 Erik R. Lieberman Food Marketing Institute (FMI) EPA-HQ-OAR-2011-0354-0157

32 Mack McFarland DuPont EPA-HQ-OAR-2010-1040-0020

33 Theodore Broudy; James 

Burke USA Refrigerants EPA-HQ-OAR-2010-1040-0023

34 Richard Marcus RemTec International EPA-HQ-OAR-2010-1040-0024

35 Carl Grolle Golden Refrigerant EPA-HQ-OAR-2010-1040-0025

36 Stephen Mandracchia Hudson Technologies EPA-HQ-OAR-2010-1040-0027

37 Pete Williams Williams & Associates EPA-HQ-OAR-2010-1040-0032

38 Don Magid Solvay Fluorides, LLC EPA-HQ-OAR-2010-1040-0026
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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Count Commenter Organization Document ID No

39 Erik R. Lieberman Food Market Institute EPA-HQ-OAR-2010-1040-0158

40 Kenneth M. Ponder RMS of Georgia, LLC EPA-HQ-OAR-2011-0354-0078

41 David P. Huet Johnstone Supply EPA-HQ-OAR-2011-0354-0101

42 Terry Deppe Johnstone Supply EPA-HQ-OAR-2011-0354-0140

43 Peter M. Geosits Mexichem Fluor Inc. EPA-HQ-OAR-2011-0354-0066

2.1 Surplus inventory of HCFC-22

EPA received ten comments on its estimate of surplus HCFC-22 production from past years that is in existing 

inventory.

 NRDC, IGSD, and EIA comment that the 45,400 MT stockpile and the 6,000 MT annual drawdown should 

reasonably be regarded as minimum, not maximum, estimates. They state that the Adjustment Memo 

indicates that the stockpile may be an underestimate due to greater stockpiling during an unexpectedly cool 

summer in 2009 and “in anticipation of higher prices” during the 2010-2014 period. [0067]

 Hudson believes that there are significant volumes of HCFC-22 stockpiled and available to meet demand. 

Hudson comments that EPA’s assessment of stockpiled inventory in the Adjustment Memo, and its effect on 

the aftermarket, is essential for supporting recovery and reclamation. [0071, 0027]

 Coolgas strongly supports EPA’s consideration of HCFC-22 stockpiles. However, based on the amount of 

stockpiled HCFC-22 Coolgas holds and based upon its own independent estimates of industry stockpiles, the 

company believes that the quantity of inventory surplus used in the Vintaging Model may be 

underestimated. [0088]

 Solvay urges EPA to reduce allowances in 2013 and 2014. Solvay notes that the amount of HCFC-22 in 

inventory is likely greater than one year's supply of virgin material based on the "Adjustment Memo" 

included in the Docket, which estimates current inventory of HCFC-22 as high as 45,400 MT. Reducing future 

allowances should reduce this inventory overhang, supporting the sustainable reclamation industry while 

ensuring that sufficient supply is available for all consumers. Solvay also notes that they have no first-hand 

knowledge of any company having a problem sourcing virgin material. [0064, 0026]

 Williams & Associates comments that all indicators suggest that there is too much HCFC-22 available in the 

U.S. market. Williams & Associates commends EPA’s aggressive approach to phase-down HCFCS and 

believes that EPA must consider and adjust for the effects that oversupply is having throughout the industry.

[0032]

EPA Response: All comments on the amount of existing inventory, as well as confidential comments, indicate 

EPA’s estimate of surplus inventory is reasonable. While some comments suggested a larger annual adjustment, 

EPA did not receive enough data to support a larger change. EPA is finalizing the rule with the 6,000 MT 

adjustment for surplus inventory. More information and further response is provided in section IV.B.2. of the 

preamble to the final rule.

 USA Refrigerants comments that it is well known that HCFC-22 is being stockpiled and relates the stockpiles 

back to an over-supply of HCFC-22 and low prices. It offers the following three suggestions to fix the 

problem:

• EPA has an auction option in which HCFC allocation would be purchased, thus increasing the virgin 

gas price.

• Give the allocation to whomever EPA chooses, charging a per pound fee ($3-$7 per pound). USA 

Refrigerants is aware that EPA has a dilemma with receiving monies. They also respectfully disagree 

with EPA that it is difficult to collect fees. They believe that the allocation holders are well known 
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

Page 14

and could be put on the honor system. USA Refrigerants believes that this will ensure that if there is 

a glut, they will not produce, and if there is a shortage, they will produce. 

• Do nothing (i.e. do not allocate allowances) until the market price of R-22 is stable above $8 per 

pound. [0023]

EPA Response: As discussed in the response to NRDC, Hudson, Coolgas and Solvay, comments indicate EPA’s 

estimate of surplus inventory is reasonable. However, the three options presented are not within the scope of 

the proposed rule for 2012-2014. EPA will consider whether to propose these options as it develops the 2015-

2019 rule.

 Golden Refrigerants asks that EPA review the current state of the HCFC market before issuing allocations for 

2012 and future years. The amount of HCFC’s available in the marketplace is in excess of what is required for 

servicing existing units. The oversupply is causing the price of HCFC-22 to fall and leading to a lack of 

concern for recovery and reclamation. [0025]

EPA Response: EPA agrees with the commenter that the 2009 Final Rule, which originally governed 2012-2014,

provided more allowances than were needed to meet servicing need. The proposed rule considered issuing 

fewer allowances for this very reason. However, EPA does not believe it is in the best interest of the industry to 

issue annual rulemakings, nor would it promote a smooth transition out of HCFC-22. As evidenced by the timing 

of the 2011 Interim Final Rule and this rule, providing allowances for the reminder of the regulatory period 

provides more certainty to industry than an annual approach. Additionally, EPA has previously addressed this 

issue in past rulemakings and reiterates its support for providing the annual allocations as far in advance as 

possible.

 Ingersoll Rand notes that from discussions with their dealers, parts centers, contractors, and other industry 

stakeholders, there is currently an oversupply of HCFC-22 in the marketplace relative to demand. [0063]

EPA Response: See previous response to NRDC and others.

 AHRI comments that there is an excess supply of virgin HCFC-22. [0072]

EPA Response: See previous response in this section to NRDC others.

2.2 Adjustments for recovery, reclamation, and reuse

2.2.1 Projections of reclaim capabilities in the Adjustment Memo

Out of the 15 comments EPA received on reclaim capabilities, 14 comments (some signed by multiple 

organizations) stated that the reclamation industry is able to increase its current capacity, although some 

commenters noted that sufficient supply of recovered HCFC-22 would be the limiting factor. One comment 

(from Goodman) stated that the infrastructure to effectively and efficiently recover, recycle, redistribute, and 

reuse HCFC-22 likely will take several years to develop into a viable source for the market. In addition, Polar 

Technology agreed that the industry has the capacity to meet reclaim needs, but disagreed with the base 

assumption that this activity will automatically take place.

 NRDC, IGSD, and EIA state that the 19,700 MT figure should be a minimum, rather than a maximum because 

established companies that reclaim refrigerants have the technical capacity to recover between 12,500 and 

19,700 MT per year in 2012 and could easily expand capacity to meet demand. NRDC, IGSD, and EIA note 

their support of EPA’s analysis of the impact on reclamation of the HCFC-22 over-supply and support the 

agency’s proposal to reduce the over-supply and restore the conditions needed to build the necessary 

reclamation and reuse capacity.

NRDC and IGSD support the reclamation and reuse of HCFC-22 for two reasons: 1) every ton of 

reclaimed and reused HCFC-22 avoids the need to produce a ton of new HCFC-22, thus reducing the 
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

Page 15

total amount of HCFC-22 that will ultimately be leaked into the atmosphere; and 2) a robust reclamation 

industry will be needed post-2015 to meet the demand for HCFC-22 to service existing equipment. 

[0067]

EPA Response: The agency is finalizing the proposed 19,700 MT adjustment to foster increased HCFC-22 

recovery and reclamation. EPA agrees with NRDC’s reasons for supporting the adjustment. In addition, 

comments from the reclamation industry confirm that many reclaimers could quickly increase capacity, and that 

the 19,700 MT adjustment is a reasonable change. While the reclamation industry may be able to increase 

capacity to even more than 19,700 MT, EPA did not receive sufficient data to warrant making an adjustment 

higher than the maximum 19,700 MT that was proposed. EPA’s estimates of recovered refrigerant also support 

finalizing this adjustment for recovery and reclamation (see the Recovery Memo included in the docket).

Additionally, the commenter did not provide data supporting an upward adjustment. A complete response is 

available in section IV.B.2. of the preamble to the final rule.

 Based on discussions with its members, AHRI believes that the industry is capable of reclaiming HCFC-22 in 

excess of 12,500 MT. [0072]

EPA Response: The agency is finalizing the proposed 19,700 MT adjustment to foster increased HCFC-22 

recovery and reclamation. A complete response is available in section IV.B.2. of the preamble to the final rule.

 Certified Refrigerant Services, Inc. comments that as the demand for capacity grows, reclaim companies will

be able to expand to cover the need that will ultimately be driven by higher prices and a decrease in supply. 

The commenter notes that they reclaimed 135,000 lbs of HCFC-22 in 2011 with only a 35% utilization of 

their current equipment. Full utilization could yield 400,000 lbs of reclaim in one year, and could easily 

double production volumes if recovery becomes aggressive. However, companies will not expand until there 

is a need. Further, the commenter states that of all refrigerant reclaiming businesses, none are operating at 

greater than 60% of their capacity. The solution would be to reduce availability, forcing the price to go up, 

and therefore forcing contractors to participate in recycle and reuse programs. [0057]

EPA Response: EPA agrees with the commenter that as the allowances for virgin HCFC-22 decrease, there will be

an increased incentive to recover and reclaim the gas. A more complete response is available in section IV.B.2. of 

the preamble to the final rule.

 Hudson believes that the reclamation industry will easily support the maximum proposed reduction levels, 

as calculated in the Adjustment Memo. Hudson agrees that 25% to 80% of servicing need could be met, 

noting that Hudson can easily triple its current capacity and believes that this is typical amongst most 

reclaimers. Hudson believes that the issue is not whether the industry can supply but whether the market 

will recover and return sufficient product for reclamation. According to the commenter, with emphasis on 

responsible use and handling and a limitation on virgin supply, reclamation and recycling could serve 80% or 

more of the aftermarket. The commenter believes that a vibrant reclamation industry is a key component 

for the HCFC phaseout. Hudson states that unless the supply of new refrigerant is reduced and the value of 

the refrigerant increases, the volume of reclamation simply will not increase. The commenter believes this 

can be achieved by limiting the production of HCFC-22. [0071, 0027]

Airgas believes that U.S. reclaimers have sufficient capacity to achieve and exceed the target of 12,500 MT. 

The commenter notes that having reclamation capacity, however, does not equate to having reclaimed 

product to supply the market. Current market pricing and economics do not support profitable reclamation. 

Airgas notes that instead of increasing, nationally reclaimed volumes of HCFC-22 have remained relatively 

flat for the last two years. [0079]

Summit Refrigerants notes that capacity exists in the reclamation industry to handle increased reclamation 

volume. The commenter has made a significant investment in equipment, facilities, personnel, and training 

to handle a much greater volume of reclamation, including the packaging and sale of reclaimed refrigerant 
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

Page 16

to the HVAC service industry. The commenter notes that they are willing to make additional capital 

investments. Summit Refrigerants has been informed that other refrigerant reclaimers throughout the 

country also have capacity to handle a greater volume of reclamation activity. [0062]

EPA Response: The agency is finalizing the proposed 19,700 MT adjustment to foster increased HCFC-22 

recovery and reclamation. A more complete response is available in section IV.B.2. of the preamble to the final 

rule.

 A group of 20 EPA Certified ODS Reclaimers comment that they believe reclaimers can meet the projected 

demands of the industry if allocations are reduced to the maximum extent in 2012-2014. They agree that 

the amount of HCFC-22 that they reclaimed was well below their capacity mainly due to the price and ample 

supply of virgin manufactured and imported HCFC-22. [0085]

EPA Response: The agency is finalizing the proposed 19,700 MT adjustment to foster increased HCFC-22 

recovery and reclamation. A more complete response is available in section IV.B.2. of the preamble to the final 

rule.

 Honeywell believes it is important to make clear to EPA that there is sufficient recovery and reclamation 

capability today. The supply chain from equipment-in-use to reclamation facilities is highly fragmented and 

complex, however, so it will continue to take time to get this supply chain up-to-speed. [0082]

EPA Response: While EPA agrees that reclamation will not increase overnight, the agency is finalizing the 

proposed 19,700 MT adjustment to foster increased HCFC-22 recovery and reclamation. A more complete 

response is available in section IV.B.2. of the preamble to the final rule.

 Rapid Recovery Franchise Partners comment that it will be necessary to increase the quantity of high quality 

reclaimed R-22. The commenter believes that existing reclaimers have the capacity to process more than 

enough R-22 to meet the industry needs, but are not convinced that given the present situation, there will 

be enough used R-22 recovered to meet the raw material needs of the reclaimers. The commenter states 

that HVAC contractors are currently not recovering enough R-22 to meet the level necessary to sustain the 

industry for the long term. [0086]

EPA Response: The agency is finalizing the proposed 19,700 MT adjustment to foster increased HCFC-22 

recovery and reclamation. A more complete response is available in section IV.B.2. of the preamble to the final 

rule.

 Consolidated comments that it has been well documented that the reclaim industry has both the capacity 

and the willingness to significantly increase the amount of R-22 it processes. Consolidated notes they could 

easily double their capacity immediately and if necessary add to their equipment and staffing to triple or 

quadruple the amount of refrigerants they reclaim each year. Consolidated believes the ability to increase 

processing capacity is not the real issue. If the industry expects to significantly increase the amount of R-22 

and other refrigerants available for reclamation, the concern will need to shift away from those who reclaim 

refrigerants to those involved in the recovery process. Consolidated notes that additional reclaimed R-22 is, 

and will continue to be, directly proportional to the quantity of refrigerant that is captured and made 

available to the reclaimers. [0083]

EPA Response: The agency is finalizing the proposed 19,700 MT adjustment to foster increased HCFC-22 

recovery and reclamation. A more complete response is available in section IV.B.2. of the preamble to the final 

rule.

 Polar Technology agrees that the industry has the capacity to meet whatever increases in reclamation 

activity that may occur. However, they disagree with the base assumption that this activity will 

automatically take place. They believe history indicates that system owners/technicians/contractors do not 

become actively engaged in reclaiming R-22 as a result of reduced allocations. The commenter believes the 
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

Page 17

industry does not have concern for the environment, doing the right thing, or over the diminishing supply 

and rising prices. Polar Technology states that allocation reductions actually may not significantly impact 

existing reclamation activities and economics is one of the strongest factors. They believe the anticipated 

increase in reclamation volume of R-22 will not occur for the following four reasons:

• Enforcement or lack thereof. Technicians, contractors, and system owners do not fear that the 

failure to properly recover will be met with punishment. There are too many systems and 

technicians to monitor and hold accountable. Polar Technology cites California’s AB32 that 

according to them was created based on the failure of the CAA. AB32 holds the system owner 

accountable for refrigerants in their control. Without enforcement, there is no motivating reason for 

anyone to adhere to regulations.

• New revenue opportunities. Small R-22 system owners are forced to buy new and costly systems 

before their current system has naturally worn out because they are at the mercy of technicians and 

contractors. In this case, the manufacturers and contractors profit and the consumers (system 

owners) lose.

• Reclamation rates. The commenter states that according to EPA, reclaimed refrigerant activity has 

remained the same since the CAA was implemented. The commenter states that reclamation 

capacity has increased, just not the amount of used refrigerants to reclaim. They believe it is easier 

to manufacture and buy new gas than it is to reclaim. Because they are at the mercy of the market, 

system owners will pay for poor recovery practices. 

• History. The commenter points to the phaseout of CFC-12 and states that price and volume do not 

correlate. The applications are different and more widespread than was the case with CFC-12. Polar 

Technology believes that as the price increases, technicians will hoard more refrigerant, which will 

lead to dirty refrigerants going into existing systems, creating inefficient cooling and other 

compromises. [0076]

EPA Response: The agency recognizes that assuming 19,700 MT of annual servicing need can be met by 

recovered and reclaimed material—instead of 12,500 MT—does not mean that amount will actually be 

reclaimed each year. EPA’s adjustment to encourage recovery and reclamation could also encourage transition 

to HCFC-22 alternatives and more recovery and reuse of HCFC-22 in systems that require a large refrigerant 

charge. EPA believes adjusting allowances to encourage reclamation will still send the desired market signal to 

incentivize recovery and reclamation. As the supply of virgin HCFC-22 decreases, the value of the gas and the 

incentive to recover and reclaim it will likely increase.

In response to the commenter’s statement about enforcement, EPA encourages anyone to report potential 

Clean Air Act violations and to send EPA concrete evidence when possible to help in enforcement. EPA reminds 

the industry that intentional venting is illegal under EPA regulations. In addition to the current venting 

prohibition, EPA is incentivizing the proper handling and recovery of all existing HCFC-22 by reducing allowances. 

Fewer allowances results in each allowance, and therefore each pound of HCFC-22, having higher value. 

Reclaimers can use this increase in value to provide a financial incentive for contractors and system owners to 

recover more used HCFC-22.

In response to the comment on decisions system owners are making with their contractors, EPA does not have 

data or evidence to verify or rebut the commenters’ assertion. EPA encourages system owners to find a 

contractor that they trust using ENERGY STAR tips on How to Find a Good Heating and Cooling Contractor and to 

work with their contractor to determine the best path forward when deciding to repair or replace systems.

In response to the commenter’s assertion that reclamation has remained the same since the CAA was 

implemented, EPA disagrees. The average reclamation amount for HCFC-22 in 2000-2003 was about 5.2 million 
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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lbs per year compared to about 8.5 million lbs per year in 2008-2011 (source: Summary of Refrigerant 

Reclamation 2000-2011, available at http://www.epa.gov/ozone/title6/608/reclamation/recsum.pdf).

Additionally, EPA does not have data on the price of CFC-12 to verify the statements made about the CFC-12 

phaseout’s effect on reclamation. EPA is aware that CFC-12 equipment is still in use even though the production 

and import of CFC-12 stopped in 1996.

 RMS Georgia commented that it had the capacity and resources to increase the quantity of reclamation if 

the demand for reclaimed material increases. RMS Georgia has invested resources into increasing the 

infrastructure to prepare for the need for higher reclamation. [0078]

EPA Response: The agency is finalizing the proposed 19,700 MT adjustment to foster increased HCFC-22 

recovery and reclamation. A more complete response is available in section IV.B.2. of the preamble to the final 

rule.

 Goodman believes that EPA relies far too much on the potential for recovery and reuse as a means of 

servicing existing HCFC-22 during the time period 2012-2014. Due to the comparatively small amount of 

HCFC-22 typically used in a residential air conditioning system (approximately 6 to 8 pounds), Goodman 

believes the infrastructure to effectively and efficiently recover, recycle, redistribute, and reuse HCFC-22 

likely will take several years to develop into a viable source for the market. [0084]

EPA Response: EPA disagrees with the comment. Even with lower recovery in the residential AC market, there is 

enough recoverable HCFC-22 in existing HCFC-22 equipment to increase the adjustment for recovery and reuse

from 12,500 MT to 19,700 MT, especially in light of the 2015 Montreal Protocol cap and the 2020 phaseout of 

HCFC-22 production and import. EPA believes it needs to encourage recovery and reuse now to ensure a smooth 

transition. While recovery and reclamation may not increase immediately, other sources (e.g., transition to 

alternatives, use of existing inventory, and in-house recovery and reuse) can help meet current needs. A more 

complete response is available in section IV.B.2. of the preamble to this final rule.

 RemTec International comments that the capacity is available by reclaimers to meet or exceed the 20 

percent target. Further, they believe that in the past, reclaimers have not been able to fully utilize their 

capacity due to the economics or pricing issues to incentivize the recovery efforts and then compete with 

low cost imported products. [0024]

EPA Response: The agency is finalizing the proposed 19,700 MT adjustment to foster increased HCFC-22 

recovery and reclamation. A more complete response is available in section IV.B.2. of the preamble to the final 

rule.

2.2.2 Comments from or about large end users of refrigerant, including supermarkets

 Honeywell notes that there is another high volume source that EPA should continue to recognize and 

quantify. Large users that are retiring equipment can efficiently and effectively capture the majority of 

refrigerant from commercial refrigeration and air conditioning units by recovery for future reuse for service 

needs in other equipment owned by these users. These users do not require reclamation technology or 

equipment. Such recovery and reuse should continue to be considered as a source of HCFC-22 service 

refrigerant. [0082]

EPA Response: EPA agrees there are other large end users, in addition to supermarkets, that can be a source for 

recovered HCFC-22. The extent to which large end-users meet their needs with refrigerant recovered in-house is 

unclear. The agency accounts for the recovery practices of large end-users in its Vintaging Model and is using its 

estimates of recoverable refrigerant to support the maximum proposed reduction for recycling and reclamation.

 The Food Marketing Institute (FMI) states that the proposed rule will impose substantial burdens on food 

retailers and wholesalers. The commenter believes a lack of true equal capacity HCFC replacement ‘drop-in’ 

refrigerants for packaged HVAC units will result in higher energy usage and increased carbon emissions 
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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while lowering the ability of the system to meet store condition requirements. They believe that the inability 

to meet store requirements will additionally increase refrigeration system energy usage. [0157]

EPA Response: EPA agrees with the commenter that refrigeration and AC systems are typically most efficient 

when using the refrigerant they were designed to run on. EPA encourages HCFC-22 system owners to transition 

to equipment designed for alternatives when it makes sense for them, keeping in mind that virgin HCFC-22 can 

no longer be imported or produced beginning in 2020. Recovered and recycled refrigerant can be used as long 

as it is available.

 FMI also submitted a late comment, asking EPA to immediately increase HCFC-22 production and 

consumption allowances in order to provide relief to grocery retailers. FMI proposes a phaseout schedule of 

65,000 MT of both consumption and production allowances in 2012, followed by 50,000 MT in 2013 and 

40,000 MT in 2014. The commenter suggests that its proposed phaseout schedule would meet the 

requirements for the heads of executive departments and agencies to consider the cumulative effects of 

regulations, pursuant to Executive Order 13563. The comment also included information from individual FMI 

members: 

• HCFC-22 prices have increased, but it is available.

• Supermarkets have begun to retrofit some stores, but still rely on HCFC-22 in many systems. 

• Supermarkets vary in the extent to which they recover HCFC-22 and bank it, with some chains 

utilizing all of their recovered refrigerant, and others selling HCFC-22 to a recovery or reclamation 

company [0158].

EPA Response: See previous responses to FMI and Honeywell. EPA appreciates the concerns raised by FMI. 

However, FMI’s request for EPA to increase the allowed amount of HCFC-22 consumption beyond the level 

allowed under the 2009 Final Rule, rather than reduce consumption allowances or keep them the same, is 

counter to EPA’s understanding of the broader HCFC-22 market as presented in the Adjustment Memo. As such, 

the agency is finalizing what it believes to be an appropriate amount of allowances based on its analysis of the 

market and the comments supporting that analysis. The rationale and support for the finalized allocations is 

provided in the preamble to the rule. 

Additionally, Supervalu, Food Lion and Weis Market contributed to EPA’s research and analysis presented in 

the Adjustment Memo. Based on conversations with these stores, EPA found that some supermarkets have 

converted a substantial proportion of their HCFC-22 equipment and that many have sufficient recovered 

HCFC-22 in stock for servicing such that they do not anticipate a need to purchase any more virgin material 

in the future. Other supermarkets that have not converted from HCFC-22 equipment as aggressively 

indicated that as low as 10% to 20% of their servicing needs are met by material recovered from retrofitted 

stores they own. 

The agency recognizes that some stores are able to meet much of their HCFC-22 needs with refrigerant that 

is recovered and reused in-house; however, EPA also recognizes that some supermarket stores are not able 

to meet a significant portion of their servicing needs with in-house recovery, especially smaller chains or 

independent store owners. Since the agency does not have sufficient data on in-house reuse, EPA is not 

accounting for supermarket reuse as its own category. However, the agency’s Vintaging Model has 

reasonable estimates for actual recoverable material for various sectors, and EPA is using those modeled 

recovery rates for supermarkets to help support overall recovery and reuse estimates in this rule (see the 

Recovery Memo for specifics on modeled recovery rates).

 NRCD, IGSC, and EIA suggest downward adjustments for supermarkets by reducing leakage and by sourcing 

through recovery and reuse, in line with the Adjustment Memo. [0067]

EPA Response: See previous responses in this section.

2.3 Estimated servicing need for HCFC-22 as presented in the Adjustment 
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Memo

EPA received four additional comments on the Adjustment Memo, all related to the estimated servicing need for 

HCFC-22. 

 Airgas commented that servicing need for HCFC-22 was overstated in the 2009 Final Rule and that the new 

estimates for 2012-2014 are even higher in the Adjustment Memo, meaning that the reduction in 

allowances will have to be even greater to arrive at where the market must be in 2015. [0079]

EPA Response: Vintaging Model estimates of servicing need are higher in the Adjustment Memo than in the 

Servicing Tail Report published with the 2009 Final Rule. The Adjustment Memo discusses the reasons for the 

change. The adjustments in this proposed rule (77 FR 237) were made to the updated servicing need estimate. 

EPA will revisit this estimate again as it develops the allocations for 2015-2019.

 Certified Refrigerant Services, Inc. noted that EPA did a reasonable job of forecasting service demand, but is 

concerned that the economic recession (2009) has impacted the service demand forecasts from 2007. The 

recession resulted in a drop in demand, while the importation and production became excessive, negatively 

impacting refrigerant reclaimers. [0057]

EPA Response: EPA discusses several reasons why the allocation in the 2009 Final Rule likely resulted in an 

oversupply of virgin HCFC-22 in the Adjustment Memo. The adjustments proposed in this rulemaking are an 

attempt to remedy that over-allocation, and to incentivize proper handling of HCFC-22 and transition to 

alternatives.

 DuPont comments that as a result of the proposed reductions in total HCFC-22 allowances and the 

supporting Adjustment Memo, it initiated a review of its market assessment and what it believes will be 

needed to move the market to where it must be in 2015 and 2020 to comply with Montreal Protocol

requirements. DuPont’s assessment supports the agency's HCFC-22 “smaller allocation scenario,” even 

though its assessment of the market differs in detail from that in the Adjustment Memo. DuPont comments 

that the primary difference between its assessment and the Adjustment Memo is that market demand for 

HCFC-22 is significantly lower than the agency has estimated. DuPont believes that as supply shrinks, service 

practices will improve, emissions will decrease, and overall demand for newly produced, inventoried and 

reclaimed HCFC-22 will decrease. In addition, DuPont comments that it is informed that service technicians 

and end users are increasingly using HFC retrofit options that will further reduce demand for HCFC-22.

DuPont’s analysis concludes that the maximum proposed reductions in allocations can be achieved without 

causing a significant disruption in the market place. [0070]

EPA Response: EPA is continually updating the Vintaging Model based on new market information. Before

issuing the 2009 Final Rule and the 2009 Servicing Tail Report (using Vintaging Model results), EPA issued and 

sought comment on three versions of a draft report. The report analyzes servicing need for HCFC appliances in 

the U.S. refrigeration and air-conditioning sector projected to be in service from 2010-2019. All versions are 

available at Docket EPA-HQ-OAR-2008-0496: published November 4, 2005 at 70 FR 67172; released at a 

stakeholder meeting on September 29, 2006; published December 23, 2008, with 2008 Proposed Rule. The 

Servicing Tail Report focuses on air-conditioning and refrigeration appliances because such equipment 

represents the bulk of the servicing need. EPA generally agrees with the commenter that the amount provided 

in the 2009 Final Rule was too high to foster an orderly transition away from HCFC-22. Several possible 

contributing factors and supporting indicators of this over-allocation are discussed in the Adjustment Memo. 

EPA will revisit this estimate again as it develops allowances for 2015-2019.

 Arkema comments that that the estimates from EPA’s Vintaging Model of 56,200 MT of HCFC-22 in 2012, 

51,200 MT in 2013 and 45,900 MT in 2014 are reasonable projections. Arkema also believes providing the 
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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lowest number of HCFC-22 allowances would foster reclamation without disrupting equipment servicing.

[0073]

EPA Response: See previous responses in this section.

2.4 Effects of dry-shipped HCFC-22 equipment on the HCFC phaseout

EPA received 20 comments on whether repairing an existing system with dry-shipped HCFC-22 equipment 

affects the HCFC phaseout. Eight commenters believe repairs with dry-shipped HCFC-22 condensing units is 

affecting the phaseout and/or should be stopped.

 Lennox comments that EPA should prohibit the sale and distribution of dry-shipped HCFC-22 air conditioning 

condensing units. The commenter states that the continued installation of dry-shipped HCFC-22 condensing 

units for air-conditioning systems is impacting the HCFC-22 phase-out in significant, negative ways. The 

continued installation of dry-shipped condensing units effectively allows the manufacture of otherwise 

banned HCFC-22 air-conditioning systems, which undercuts the market for new, more environmentallyfriendly air-conditioning equipment. It maintains demand for HCFC-22 refrigerant that otherwise would not 

exist. [0061]

Lennox further comments that EPA should grant the Carrier petition and that whatever action EPA may 

take in tightening the HCFC-22 allocations is likely insufficient to address the issue. The commenter 

states that HCFC-22 air conditioning condensing systems create a source of demand for HCFC-22 that is 

known to be significant but difficult to predict, which could create undue volatility in the HCFC-22 

market. Despite what appears to be a current sufficient supply of HCFC-22 refrigerant, future shortages 

may nonetheless result if HCFC-22 air conditioning equipment remains in use that EPA had expected to 

be replaced. Lennox notes that the exact scale of the problem is difficult to determine because there is 

no public reporting on HCFC-22 condensing unit shipments, but millions of units are believed to be at 

issue. [0061]

The commenter further states that if EPA does not change its policy, it is encouraging manufacturers to 

avoid promoting environmentally-friendly equipment. The commenter expressed concern that, in the 

future, manufacturers may refrain from developing more environmentally-friendly equipment, driving 

up the costs of more advanced equipment and impeding the transition away from ozone-depleting 

substances. Accepting the Carrier petition should help EPA to more accurately predict how significantly 

it may reduce HCFC-22 allocations pursuant to the Proposed Rule. [0061]

 EPA Response: EPA agrees with the commenter that servicing of appliances that have been repaired 

through the installation of dry-shipped HCFC-22 condensing units does make up part of HCFC-22 servicing 

need and that there is no consensus on how much of total servicing need is due to repairing existing systems

with new condensing units. Given the paucity of concrete quantifiable information on this subject currently 

available to the agency, EPA is not ready to determine whether the installation of dry-shipped HCFC-22 

condensing units will affect EPA’s ability to phase out HCFC-22 by 2020. The limited data received to date 

suggest that it will not. Two documents, which serve as an example of the data received to date, are 

available in the docket: a September 24, 2010 letter with supporting analysis from AHRI and a market 

update from analysts at Credit Suisse. More information about how EPA is approaching this issue is available 

in the preamble. However, since banning the manufacture of HCFC-22 condensing units is beyond the scope 

of this rulemaking (i.e., EPA didn’t propose to ban condensing units in this rule), EPA will continue to 

evaluate the issue as it develops future regulations. The agency continues to seek quantifiable information 

on the number of dry-shipped condensing units being shipped, whether they are being used as a repair in 
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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lieu of a compressor or motor replacement, and whether they will hinder EPA’s ability to phase out HCFC-22 

by 2020.

 United Technologies, the parent company of Carrier, supports banning the manufacture of uncharged HCFC22 condensing units. They believe the installation of newly-manufactured, uncharged HCFC-22 condensing 

units does affect the phaseout of virgin HCFC-22 production and import. United Technologies states “there 

is no doubt” that EPA’s policy on dry-shipped HCFC-22 condensing units perpetuates the demand for HCFC22 and hampers the transition to alternatives. United Technologies states that the proposed reduction in 

allocations will not address their concerns.

The commenter estimates that approximately 74 million AC systems are operating today with HCFC-22, 

with enough refrigerant to perpetuate newly installed HCFC-22 condensing units for the next decade or 

more. United Technology comments that new condensing units can extend the lifetime of HCFC-22 

equipment by over 100%. The company states that 25-30% of equipment replacements are dry-shipped 

condensing units and that these replacements are being sold in lieu of alternatives; the company 

suggests that if this is left unchecked, HCFC-22 projections would increase rather than decrease. 

United Technologies requests that EPA invite comments on all aspects of Carrier’s petition and 

expresses concern about the continued delay in acting on Carrier’s position. The commenter states that 

if the Carrier petition is not accepted before the end of the upcoming peak sales season, the potential 

exists for more than one million additional replacement units to be sold this year and manufacturers will 

continue to ramp up production capacity and inventories. Further, the commenter believes that EPA has 

sufficient information to grant the petition now. United Technologies believes that the information 

readily available to EPA shows that 1) dry-shipped HCFC-22 units newly produced to take advantage of 

existing regulations is a substantial and growing segment of the market; 2) the installations of dryshipped units greatly extend the useful lives of existing HCFC-22 systems and therefore will perpetuate 

the demand for HCFC-22 well into the next regulatory step-down period; 3) additional emissions of 

HCFC-22 into the atmosphere will occur due to the resulting increase in the installed base of HCFC-22 

units and additional servicing of the equipment; and 4) the next result of the exemption undermines the 

smooth phase-out of HCFCs and the use of newer, more energy efficient technologies. 

United Technologies further asserts that if AHRI’s projections are accurate, which contrast sharply with 

the Servicing Tail report, at the end of the current regulatory step-down period, between 5 and 10 

million more HCFC-22 units than originally forecasted will be in service as a result of EPA’s current

policy. 

According to United Technologies, EPA should invite comments on all aspects of Carrier petition. EPA 

has only solicited comments on whether the dry-shipped HCFC-22 condensing unit policy affects the 

phase-out of virgin HCFC-22. While the commenter believes this issue is important, they state that there 

are many other important issues relevant to whether EPA should eliminate the dry-shipped condensing 

unit loophole. Further, the commenter states that the agency’s view of the use of HCFC-22 is contrary to 

how EPA viewed the issue in the Pre-charged Appliance Rule. United Technologies believes that EPA 

now has evidence that dry units are being marketed and sold not as repair parts, but as cheaper 

alternatives to installing new, more energy efficient equipment. The commenter states that EPA has a 

responsibility to examine whether the expressed intention of its 2009 Pre-charged Appliance Rule is 

being met. Carrier’s petition explains that by focusing solely on production and import versus actual 

emissions of HCFC-22, EPA’s rules ignores the important issue of maintaining the production of dry-filled 

units throughout the phase-out of HCFC-22 production and consumption. According to the commenter, 

more HCFC-22 units being manufactured equate to more emissions over time regardless of whether a 
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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refrigerant is newly produced or recaptured and reused. They believe that this is contrary to the goals of 

the CAA and Montreal Protocol. 

United Technologies comments that if Carrier’s petition is granted it will not affect the ability of 

consumers to service existing HCFC-22 equipment. Their petition seeks to prohibit only the sale, 

marketing, and distribution of entirely new HCFC-22 condensing units. United Technologies supports 

EPA’s recent decision to update home air-conditioning resources for consumers. They strongly believe 

that EPA should not in any way delay the transition to newer, more efficient and environmentally 

beneficial air conditioning systems. [0065]

EPA Response: See the above response to Lennox International. 

United Technologies asserts that there is an adequate amount of refrigerant in existing systems “to perpetuate 

newly installed HCFC-22 condensing units for the next decade or more.” EPA understands this comment to mean

that repairing current systems with dry components, including condensing units, may not affect EPA’s ability to 

phaseout HCFC-22 by 2020 due to the large amount of HCFC-22 in existing systems. EPA agrees that there is a 

significant amount of HCFC-22 in existing systems that can be recovered and reused to repair systems both now 

and in the future. As discussed in section IV.B.2. of the preamble, EPA anticipates that reclaimed and reused 

material can meet a significant portion of estimated servicing need over the coming years.

United Technologies also comments that dry condensing units can extend the lifetime of an existing system by 

100% or more. EPA welcomes data to verify this claim. 

EPA disagrees with United Technologies’ statement that repairing systems by replacing condensing units

increases the installed base of HCFC-22 equipment. EPA’s prohibition on the manufacture of new HCFC-22 

systems with virgin refrigerant began January 1, 2010—capping the installed HCFC-22 equipment base, with 

limited exceptions. As a result, the installed base of residential HCFC-22 systems should not be growing, unless 

reclaimed HCFC-22 is being used to install large numbers of new systems or illegal activity is occurring. If United 

Technologies or any other entity has knowledge of new systems being installed with virgin HCFC-22, they should 

report the violation to EPA. 

EPA seeks more information from the commenter on how allowing repairs of existing systems with dry-shipped 

condensing units results in increased emissions, especially in light of EPA’s venting prohibition and EPA’s control

of potential emissions through the allocation of annual production and consumption allowances. 

United Technologies questions whether the intent of the Pre-Charged Appliance rule (74 FR 66450) is being met, 

considering the marketing and sales of dry-shipped units. EPA’s intent in the Pre-Charged Appliance rule was 

clear: the Pre-Charged Appliance rule focuses on pre-charged appliances and components. To the best of the 

agency’s knowledge, the intent of the rule is being realized. However, as stated previously, EPA seeks 

quantifiable data and will continue to review this issue as it develops future regulations.

 Ingersoll Rand does not believe the issue of dry charged condensing unit production can be properly 

addressed through a reduction in HCFC-22 allocation levels. Ingersoll Rand believes a direct regulatory 

approach is needed to properly address the growing penetration of dry charge HCFC-22 unit volume in the 

residential and commercial markets. According to the commenter, end-users who are making service or 

replacement decisions today on their existing HCFC-22 systems are not aware of the specifics associated 

with the supply/demand of HCFC-22, especially when trying to predict what the future supply/demand 

market dynamics might be and how this may impact the cost of continued service of their systems.

Consumers tend to make the decision based on the direct cost of the change-out. The portion of this direct 

cost associated with the HCFC-22 refrigerant needed for the re-charging of the HCFC-22 system is quite 

small (<5%) of the total cost so even a significant inflation on the cost of HCFC-22 will still have a minimal 

impact on the end-user decision. [0063]
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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EPA Response: EPA agrees with the commenter that the price and availability of HCFC-22 is not the only factor 

affecting the practice of repairing existing systems with dry-shipped HCFC-22 condensing units. However, the 

reduction in allowances does send a strong market signal about the future availability of HCFC-22. Absent any 

change to current EPA policy on repairing pre-2010 systems, as the allocation for HCFC-22 production and 

importation decreases, consumers, in consultation with their AC and refrigeration contractor, will have to decide 

when to transition to a non-HCFC alternative. See the response to Lennox and United Technologies for more 

detail on several of the points raised in the comment.

 NRDC, IGSD, and EIA comment that the market for dry-shipped HCFC-22 condensing units is expanding 

rapidly. The commenters express concern that because newly-produced HCFC-22 is so cheap, service 

technicians are venting HCFC-22 from broken units, installing dry-ship condensing units in their place, and 

then charging the unit with virgin HCFC-22. [0067]

EPA Response: EPA has received conflicting reports on where the market for dry-shipped HCFC-22 repair units is 

moving. However, through this rule EPA is reducing HCFC-22 allowances to adjust for recent market changes and 

to encourage proper handling and recycling of HCFC-22. EPA encourages everyone to report potential Clean Air 

Act violations and when possible, to send EPA concrete evidence to help with enforcement. EPA reminds the 

industry that intentional venting is illegal under existing EPA regulations.

 One commenter urges EPA to consider ending the manufacture of HCFC-22 dry shipped condensers instead 

of reducing the HCFC-22 production beyond what has already been planned. [0126]

EPA Response: EPA did not propose to ban repairs with condensing units in this rule, but will continue to 

evaluate the issue as it develops future regulations. The agency continues to seek quantifiable information on 

the number of dry-shipped condensing units being shipped, whether they are being used as a repair in lieu of a 

compressor or motor replacement, and whether they will hinder EPA’s ability to phaseout the production and 

import of virgin HCFC-22 by 2020.

 Cottongim Heating & Cooling is concerned that dry ship condensing units are creating more harm than good 

with regard to overall equipment efficiency. They state that too many companies are using dry ship units to 

replace older systems and leaving the inside unit with a lower SEER rating. According to the commenter, a 

dry ship system is not going to last long in a mismatched configuration. Instead, energy consumption can be 

decreased with a newly matched R-410a system. [0154]

EPA Response: EPA encourages all system owners to install matched systems using non-ozone-depleting 

refrigerants when their existing system needs to be replaced. ENERGY STAR offers information on when to 

consider replacing a system and encourages the installation of systems with higher energy efficiency (see 

www.energystar.gov/index.cfm?c=heat_cool.pr_checklist_consumers).

 One commenter from Johnstone Supply urges EPA to stop allowing the manufacture of dry charged R-22 

condensing units. The commenter believes this concern was initially brought to EPA’s attention, but was 

ignored. [0101]

EPA Response: Since banning the manufacture of HCFC-22 condensing units is beyond the scope of this 

rulemaking, EPA will continue to evaluate the issue as it develops future regulations.

Additionally, EPA disagrees with the assertion that the agency has ignored this concern. The agency has been 

reviewing the Carrier petition since its arrival, has discussed the issue with numerous stakeholders within the 

industry, and sent a preliminary response on January 24, 2012. The agency continues to seek quantifiable 

information on the number of dry-shipped condensing units being shipped, whether they are being used as a 

repair in lieu of a compressor replacement, and whether they will hinder EPA’s ability to phase out the 

production and import of virgin HCFC-22 by 2020.
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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 One commenter from Johnstone supply comments that the cost to fill and continuously operate the dry 

units currently in the market will be disastrous. [0140]

EPA Response: EPA will continue to evaluate the issue as it develops future regulations. The agency continues to 

seek quantifiable information on the number of dry-shipped condensing units being shipped, whether they are 

being used as a repair in lieu of a compressor replacement, and whether they will hinder EPA’s ability to 

phaseout the production and import of virgin HCFC-22 by 2020.

Also, the amount of refrigerant that a new condensing unit will need over its lifetime depends significantly on 

installation and servicing practices. EPA notes that a well-installed, properly serviced system should not need 

additional refrigerant added on a regular basis unless it develops a leak.

Seven commenters do not believe repairs with dry-shipped condensing units significantly affect the phaseout 

and/or do not believe repairs using dry-shipped HCFC-22 condensing units should be banned.

 Goodman disagrees with the view that the sale of dry condensing units must be prohibited, or else use of 

HCFC-22 will continue practically in perpetuity. Goodman estimates that the HVAC industry ships between 5 

million and 6 million units annually, only a small percentage of which are dry, uncharged HCFC-22 

components. Goodman estimates that the amount of HCFC-22 used to install these dry components into 

systems is well below 10 percent of the total HCFC-22 that is used by the industry in a given year. In 

contrast, the vast amount of HCFC-22 is used each year to service and/or repair existing systems that may 

have a small leak or simply are in need of normal servicing. Thus, Goodman believes the agency’s proposed 

reduction in allowances for 2012-2014 would have an acute, negative impact on those homeowners who 

need to have their existing systems serviced. Goodman believes it is abundantly clear that the availability of 

dry, uncharged HCFC-22 components is not materially affecting the amount of HCFC-22 used each year.

[0084]

Goodman also believes that Carrier’s estimate that dry-shipped units constitute 25-30 percent of the 

total replacement market is significantly overstated. Goodman believes that Carrier’s projections and 

claims regarding a purported “growth industry” in uncharged HCFC-22 components, and resulting 

energy efficiency losses and greater HCFC-22 emissions are wildly speculative at best. [0084]

Goodman further notes that if an installer or contractor determines that a homeowner’s existing HCFC22 system can be repaired through installation of a new, uncharged HCFC-22 condensing unit (a repair 

that is permissible under EPA regulations), the repair and replacement would cost about $1,000 to 

$2,000. In contrast, a homeowner who is forced to replace an existing HCFC-22 system with a new 

system would have to spend about $4,000 to $5,000. [0084]

EPA Response: See previous responses to Lennox and United Technologies, in particular EPA’s request for 

additional data. Additionally, EPA believes the number of HCFC-22 allowances needed in 2012-2014 is 

significantly lower than the amount provided in the partially-vacated 2009 Final Rule. As discussed in sections 

2.1 and 2.2 of this Response to Comments and sections IV.B.1-3. of the preamble to the final rule, there is 

adequate reclamation capacity and a large amount of HCFC-22 available in inventory to help meet servicing 

need in 2012-2014. 

 NORDYNE disagrees with Carrier’s position in the Carrier petition, disagrees with EPA’s response to the 

Carrier petition requesting a rulemaking to ban the sale of residential split system air conditioners that use 

HCFC-22, and supports maintaining the availability of uncharged HCFC-22 replacement condensing units for 

the marketplace. NORDYNE disagrees with an assumption within some of the HVAC industry that uncharged 

HCFC-22 replacement condensing units are displacing charged HFC-410A units. NORDYNE contends that the 

primary application of the uncharged HCFC-22 replacement condensing units is to provide consumers an 
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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affordable, more reliable and environmentally friendly service option to major failures of compressors and 

coils. NORDYNE states that historical AHRI shipment data clearly demonstrates the volume of repairs that 

have been occurring and continue in today’s economic climate. NORDYNE notes there is no negative 

environmental impact caused by consumers choosing to service their unit with an uncharged HCFC-22 

replacement condensing unit instead of replacing a compressor; the defined cap on HCFC-22 is unaffected.

NORDYNE believes that the market demand for uncharged HCFC-22 replacement condensing units will 

heavily contract in conjunction with the prescribed phase down. [0089]

Able Distributors, APR Supply Co. and Coburn Supply Company all contend that the primary application of 

the uncharged HCFC-22 replacement condensing units is to provide consumers with an affordable, reliable 

and environmentally friendly service option to major failures of compressors and coils. All three companies 

state their position is contrary to that of the Carrier petition. All three companies believe that the market 

demand for uncharged HCFC-22 replacement condensing units will heavily contract in conjunction with the 

prescribed phase down. [0147, 0148, 0149]

EPA Response: See previous response to Goodman, United Technologies and Lennox, in particular EPA’s request 

for additional data. Banning repairs of existing HCFC-22 systems using dry condensing units is beyond the scope 

of this rulemaking; EPA did not propose to ban condensing units in this rule. However, EPA will continue to 

evaluate the issue as it develops future regulations. 

 Rheem does not agree that the installation of dry-shipped HCFC-22 condensing units will have a negative 

effect on the phase-out of virgin HCFC-22 production and import. Rheem believes that addressing the 

availability of the refrigerant is the appropriate driver; it is the declining availability of the refrigerant itself 

that matters. [0087]

EPA Response: See previous responses in this section.

 NRI does not believe that dry shipped condensing units will affect the phaseout of virgin HCFC-22 production 

and import. They also do not believe that all appliance problems result in loss of the refrigerant. If EPA has 

verifiable evidence that the servicing or repair of HCFC-22 appliances is resulting in increased emissions of 

the refrigerant, then EPA should consider extending the leak repair requirements to all appliances, not just 

appliances with a refrigerant charge greater than 50 lbs. NRI believes that there will be a direct and 

immediate impact on consumer behavior by refining the allocation system. [0068]

EPA Response: See previous responses in this section. Additionally, revising the leak repair regulations for 

systems with a refrigerant charge below 50 pounds is beyond the scope of this rulemaking. 

Five additional comments discuss HCFC-22 condensing units in more general terms:

 HARDI suggests that EPA consider that most dry-shipped condensing units are being sold and installed with

multi-year warranties which may require a revision to EPA servicing tail analyses if HCFC-22 replacement 

refrigerants are not approved by the compressor and equipment manufacturers for warranty servicing 

beyond 2015. HARDI states its non-support of the Carrier petition. [0069]

EPA Response: EPA will review service practices in the HCFC-22 market as it revises its servicing need estimates 

for future regulatory periods.

 Mexichem Fluor states that in determining the reduction of consumption allowances, the increased 

installation of dry-shipped HCFC-22 condensing units should be considered. [0066]

ACCA commented that dry-charged units are affecting the demand for R-22. This is based on AHRI shipment 

data which suggests that dry charged units are in high demand yet prices of R-22 remained low up until the 

proposed ruling. [0081]
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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EPA Response: See previous responses in this section. The effect of repairs using dry-shipped HCFC-22 

condensing units was not directly estimated for this rulemaking, largely because EPA has not received enough 

quantifiable data to determine how large an effect, if any, this practice has on current and future servicing need.

 One contractor notes that if the economy had been healthy, manufacturers would not have been coerced by 

a repair-minded public into producing a dry-ship condensing unit designed to operate on R-407 that just 

happens to operate with HCFC-22. The contractor states that contractors want to sell R-410a systems in lieu 

of repairing older systems, since it is much more profitable, but that American consumers have other bills to

pay. [0113]

EPA Response: EPA understands that consumers face a number of choices when deciding to repair or replace 

their existing AC system and will continue to provide information on the pros and cons of different repair 

options.

 DuPont comments that further reductions in consumption allowances might discourage installation and field 

charging of new condensing units with HCFC-22. They believe that continued installation of such units will 

only increase the challenge of meeting the 2015 stepdown and increase emissions of HCFC-22 to the 

atmosphere. [0020]

EPA Response: See responses to earlier comments in this section. EPA is not attempting to stop repairs using

dry-shipped HCFC-22 condensing units in this rulemaking. EPA will review service practices in the HCFC-22 

market as it revises its servicing need estimates for future regulatory periods.

3. ISSUES RELATED TO THE ARKEMA V. EPA DECISION

EPA received 13 comments in response to the request for comments on issues related to the Arkema v. EPA

decision.

3.1 Whether EPA should provide recoupment

3.1.1 Whether the Arkema v. EPA decision should be interpreted as applying to the 2010 

allocation (i.e., recoupment)

3.1.2 Whether EPA should provide recoupment for HCFC-22 and HCFC-142b, or just HCFC-22 

allowances

3.1.3 Whether EPA should provide recoupment for production and consumption, or just 

consumption allowances

3.2 Whether EPA should finalize option 1, 2, 3 or 4 to adjust allowances in future control periods 

to reflect the Arkema v. EPA decision (i.e., recoupment)

3.2.1 Providing recoupment allowances in 2013 in addition to the aggregate level of 

production and consumption specified in the Final Rule (option 1)

3.2.2 Allocating recoupment allowances over two years (2013-14) in addition to the 

aggregate level of production and consumption specified in the Final Rule (option 2)

3.2.3 Allocating recoupment allowances from the aggregate level of production and 

consumption specified in the Final Rule over two years (2013-14) (option 3)

3.2.4 Treating allowances from 2010 as impossible to recoup (option 4)

Count Commenter Organization Document ID No

1 William J. Hamel Arkema Inc. EPA-HQ-OAR-2011-0354-0073

2 Joel K. French Coolgas, Inc. EPA-HQ-OAR-2011-0354-0088

3 Mack McFarland DuPont EPA-HQ-OAR-2011-0354-0070

4 Steven H. Bernhardt Honeywell EPA-HQ-OAR-2011-0354-0082

5 Peter M. Geosits Mexichem Fluor Inc. EPA-HQ-OAR-2011-0354-0066
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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6 Diran Yegparian Mondy Global, Inc. EPA-HQ-OAR-2011-0354-0055

7 Maureen Beatty National Refrigerants, Inc. (NRI) EPA-HQ-OAR-2011-0354-0068

8 David Doniger Natural Resources Defense Council (NRDC) EPA-HQ-OAR-2011-0354-0067

9 Don Magid Solvay Fluorides, LLC EPA-HQ-OAR-2011-0354-0064

10 Mack McFarland DuPont EPA-HQ-OAR-2010-1040-0020

11 William J. Hamel Arkema Inc. EPA-HQ-OAR-2010-1040-0028

12 Stephen Bernhardt Honeywell EPA-HQ-OAR-2010-1040-0029

13 Don Magid Solvay Fluorides, LLC EPA-HQ-OAR-2010-1040-0026

3.1 Whether EPA should provide recoupment

3.1.1 Whether the Arkema v. EPA decision should be interpreted as applying to the 2010 

allocation (i.e., recoupment)

EPA received 13 comments in opposition to recoupment, stating that EPA should not interpret the court 

decision as applying to the 2010 allocation. Two commenters, Solvay and Arkema, believe that the decision 

should be interpreted as applying to the 2010 allocation and that EPA should issue recoupment.

 Mexichem Fluor expects that a reduction of consumption allowances combined with recoupment 

allowances would lead to a distorted market and unfair treatment of allowance holders. Companies 

receiving recoupment would have an additional economic advantage compared to 2010. The commenter 

notes that market conditions and price expectations were different in 2010 due to the absence of the 2012-

2014 proposed rule.

Mexichem Fluor further comments that EPA should also consider whether companies actually used all of 

their consumption allowances in 2010; only 86% (approximately) of allowances were used in 2010. 

According to the commenter, not taking into account unused allowances might also lead to an 

overcompensation for loss and be unfair to other companies without recoupment allowances, given that 

the market conditions and price expectations were different in 2010 due to the absence of this 

proposed rule. [0066]

EPA Response: See section IV.B.6. of the preamble to the final rule for a full response. EPA is issuing recoupment 

allowances in this final action in response to the Court’s finding that the agency had committed legal error. The 

grant of additional allowances is limited to this particular circumstance. EPA is not changing its standard policies 

regarding the issuance of allowances and the period of time during which allowances may be used. For example, 

EPA’s policy that allowances may not be banked for future years is not affected by this final action.

 NRDC, IGSD, and EIA oppose all of the recoupment proposals and strongly support the no recoupment 

option. They oppose any option for implementing Arkema that increases the total number of allowances, 

which would only increase harm to the ozone layer and to public health and welfare. The commenters note 

that the mandate from the Court of Appeals did not issue until late 2010, which is too late to affect 

allocations in that year and that further annual allocations cannot be “banked” from year to year. The 

commenters state that it is too late for an allocation in 2012-2014 to recoup for supposed shortfalls in 2010.

According to the commenters, there is no market need to justify this additional increment of allocations,

and EPA has documented an extensive stockpile of unused HCFC-22 carried over from 2010. The 

commenters stated that recoupment options would only give a few companies a financial advantage at the 

expense of public health. [0067]

EPA Response: EPA is reducing the total number of HCFC-22 consumption allowances by more than 31,000 MT

over the three years. As a result, providing recoupment does not increase the allowed amount of HCFC-22 

produced and imported for U.S. use relative to the 2009 Final Rule. See section IV.B.6. of the preamble to the 

final rule for a full response on this portion of the comment.
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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EPA does not believe that the mere fact that the Court’s mandate issued in 2011 is sufficient reason to decline to 

issue recoupment allowances. As a general matter, “the decision of a federal court must be given retroactive

effect regardless whether it is being applied by a court or an agency.” Nat’l Fuel Gas Supply Corp. v. FERC, 59 

F.3d 1281, 1289 (D.C. Cir. 1995). EPA noted in the proposal for this action that all 2010 allowances had expired 

at the time the vacatur occurred and raised the question of whether an expired portion of a rule can be vacated.

EPA did not receive any analysis of that specific issue. However, it is not necessary to resolve that specific issue 

here, because although the 2010 allowances had expired, the baselines had not. EPA concluded in the preamble 

to the Interim Final Rule that the Court’s vacatur applied at a minimum to the baselines and the 2011-2014 

allowances. The Court’s finding of legal error with respect to the baselines means that the agency has an 

obligation to allocate additional allowances representing the difference between what the affected parties 

would have received in 2010 under the 2008 proposed rule, which reflected the 2008 transfers, and what they 

actually received under the 2009 final rule, which did not.

 Mondy Global Inc. agrees with EPA that the agency should not and cannot compensate companies for 

allowances they believe they were owed during 2010. Since allowances are allocated for a calendar year 

only, 2010 allowances would be of no value beyond that year. The Court’s mandate issued on February 4, 

2011; 2010 allowances had already expired. Therefore, EPA only needs to adhere to allocations for calendar 

years 2011 and after. [0055]

EPA Response: See section IV.B.6. of the preamble to the final rule and the response to the NRDC comment 

above for a full response.

 Honeywell strongly supports EPA’s proposal to not provide additional allowances to Arkema and Solvay in 

2013-2014 as some form of “recoupment” for allowances that were allegedly due to Arkema and Solvay in 

2010. Honeywell believes such recoupment would be both contrary to law and the public policy objectives 

of the stratospheric ozone program. [0082]

Honeywell agrees with EPA that recoupment would effectively be a transfer from 2010 to later years, 

and that EPA’s own regulations preclude such a transfer. Honeywell notes that regulations require 

allocation of allowances only for a specific control period and that there is no provision for banking or 

borrowing of allowances in later years according to 40 C.F.R. § 82.3, 82.16(a). Honeywell believes that 

there is an even more fundamental objection to such a transfer: the Clean Air Act requires that any 

transfer of allowances “result in greater total reductions in the production in each year of ... class II 

substances than would occur in that year in the absence of such transactions,” 42 U.S.C. § 7671f (a), yet 

issuing additional recoupment allowances in 2013-2014 would have the opposite effect. Honeywell 

notes that by definition, the provision of recoupment allowances in any given year will cause the sum of 

all allowances allocated in that year to be higher than it would have been had no recoupment 

allowances been allocated. Honeywell believes that both Title VI of the Clean Air Act and its 

implementing regulations prohibit the allocation of recoupment allowances. [0082]

Honeywell also agrees with the policy reasons that EPA listed for not providing recoupment allowances 

to Arkema and Solvay. For instance, EPA stated that not providing recoupment allowances will benefit 

the environment and public health as well as promoting the reclamation industry that is likely needed 

for the 2015 stepdown period. 77 Fed. Reg. at 249. EPA also stated that providing recoupment 

allowances would decrease the actual number of allowances or the market share of all other allowance 

holders. 77 Fed. Reg. at 249. [0082]

Honeywell believes that avoiding losses of allowances or market share is more than just good public 

policy. Under Arkema v. EPA, the Court announced that companies have vested rights in their 

allowances. Honeywell believes EPA cannot simply reduce the number of shares held by companies, or 

degrade the value of those shares, without violating the principle underpinning the Arkema decision or 
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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without due process of law. See, e.g., Halbach v. Great-West Life & Annuity Ins. Co., 561 F.3d 872, 877 

(8th Cir. 2009); Bell v. Burson, 402 U.S. 535 (1971) (licenses cannot be suspended or revoked without 

due process). Therefore, Honeywell strongly believes that any action by EPA to provide additional 

allowances to Arkema and Solvay at the expense of other allowance-holding companies (whether via a 

reduction in the number of allowances or a dilution of their value) is unlawful. [0082]

In addition to the legal and policy reasons mentioned above, Honeywell believes that there is no reason 

to provide recoupment allowances to either Arkema or Solvay as a matter of fact. EPA acknowledged 

that a “large number of HCFC allowances ... were not used in 2010....” 77 Fed. Reg. at 245. Honeywell 

agrees that 2010 was marked by significant oversupply of HCFC-22 allowances with a significant portion 

not being used. There were more than ample allowances available for use and/or sale. Providing 

recoupment allowances would constitute an inequitable windfall to companies that were never harmed. 

Arkema and Solvay already attempted, unsuccessfully, to show that they would be harmed by the 2009 

Final Rule in 2010, citing estimates of money they thought they would lose in 2010. [See Arkema v. EPA, 

Motion of Petitioner Arkema Inc. for Partial Stay and for Expedited Consideration of Petition for Review, 

No. 09-1318, Doc. No. 1222488 (D.C. Cir.) (filed Dec. 28, 2009); Motion for Partial Stay and Expedited 

Consideration of Petition for Review, No. 09-1318, Doc. No. 1224774 (D.C. Cir.) (Filed Jan. 8, 2010). The 

Court denied the motions. Order, No. 09-1318, Doc. No. 1226756 (Filed Jan. 21, 2010).] Honeywell sees 

no justification for providing recoupment allowances under these facts. [0082]

Honeywell comments that Arkema and Solvay have no legal right to what is essentially the recovery of 

damages by way of rulemaking. If the companies believe they were deprived of their property and are 

entitled to compensation, they could file a claim for compensation under the Tucker Act. [See 28 U.S.C. 

§ 1491(a)(1).] This is the exclusive avenue for the recovery of damages against the government, absent 

an alternative statutory mechanism for compensation. [See United States v. Fausto, 484 U.S. 439 

(1988).] According to the commenter, any attempt to provide additional allowances to Arkema and 

Solvay as means of compensation for whatever monetary losses they allegedly suffered in 2010 raises 

serious legal questions. Honeywell believes EPA should decline to provide recoupment allowances to 

Arkema and Solvay on these grounds alone. [0082, 0029]

EPA Response: See section IV.B.6. of the preamble to the final rule for a full response to many of the points the 

commenter raises. See section IV.A.1. of the preamble for additional discussion of “vested rights” and market 

share as it relates to the Arkema decision.

Regarding the Tucker Act, the commenter appears to be saying that if Arkema and Solvay believe they are 

entitled to compensation for deprivation of property, their only potential recourse would be to file a claim under 

the Tucker Act for the recovery of damages. The Tucker Act states that the U.S. Court of Federal Claims has 

jurisdiction over claims against the United States for “liquidated or unliquidated damages,” including takings 

claims. 28 U.S.C. 1491(a). This jurisdictional provision concerns monetary claims. See Bywaters v. U.S., 670 F.3d 

1221, 1224 (Fed. Cir. 2012) (“The United States Court of Federal Claims has exclusive jurisdiction over such 

claims where the amount in controversy is greater than $10,000 . . . .”). EPA is not providing monetary 

compensation. Instead, EPA is working within the constraints of its stratospheric protection program to 

compensate for lost opportunities in 2010 by allocating additional allowances in 2013-2014.

Issuance of recoupment allowances in this final action is well within EPA’s statutory authority. Section 605 of the 

CAA authorizes EPA to promulgate regulations phasing out the production and consumption of class II 

substances in accordance with the phaseout schedule as accelerated pursuant to section 606. Section 607 

authorizes EPA to issue production and consumption allowances. As long as EPA does not issue allowances in 

excess of the accelerated phaseout schedule, the precise quantity of allowances issued in any given control 

period is subject to the Agency’s discretion. In the circumstance of the Court’s remand and vacatur, EPA can 
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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correct the legal error found by the Court by issuing additional allowances while at the same time ensuring that 

the total quantity remains consistent with the accelerated phaseout schedule.

 DuPont believes that it is unnecessary to consider any option with regard to "recoupment" of 2010 

allowances since this action is not required by the CAA or the D.C. Circuit decision in Arkema. DuPont 

comments that while EPA discusses several related matters in the Proposed Rule, including advantages for 

the environment, public health and the reclamation industry in not providing any additional "recoupment" 

allowances, DuPont believes that the agency is under no legal duty to provide additional allowances to 

certain companies on a policy basis. 

DuPont comments that reducing their company’s allowances in future allocation periods to provide 

"recoupment" would cause significant financial harm to DuPont. DuPont believes EPA has a duty to 

avoid such harm and no authority to impose it on the basis that has been articulated by companies 

seeking additional allowances. DuPont further believes that EPA should not finalize any of the 

recoupment options outlined in the Proposed Rule or the regulatory language in 40 C.F.R. § 82.16(a)(2) 

providing such allowances for the 2013 calendar year. [0070, 0020]

EPA Response: See section IV.B.6. of the preamble to the final rule for a full response. See section IV.A.1. of the 

preamble for additional discussion of “vested rights” and market share as it relates to the Arkema decision.

 Coolgas agrees with EPA and does not support recoupment of 2010 allowances for those companies that 

benefited by the court’s decision in Arkema v. EPA. The court’s mandate issued on February 4, 2011, by 

which time all of the 2010 HCFC allowances had expired. Therefore, EPA is obligated to adhere to the court’s 

mandate only with respect to HCFC allowances for 2011-2014. According to the commenter, to provide 

additional allowances would be contrary to the Proposed Rule’s efforts to reduce allocations for 2012-2014. 

In addition, EPA has a long-standing policy against re-allocation of market share; the proposed recoupment 

options would violate such policy. The proposed recoupment would, in effect, re-allocate market share to 

the recoupment recipients at the expense of companies not receiving recoupment. [0088]

EPA Response: See section IV.B.6. of the preamble to the final rule and previous responses in this section for a 

full response.

 NRI does not support recoupment, noting that EPA has already stated that the 2010 control period has 

expired and 2010 allowances have no current or future value. [0068]

EPA Response: See section IV.B.6. of the preamble to the final rule and previous responses in this section for a 

full response.

Two commenters, Solvay and Arkema, believe that the decision in Arkema v. EPA should be interpreted as 

applying to the 2010 allocation and support recoupment.

 Solvay states that recoupment allowances must be issued, and further states that there can be no doubt 

that the 2010 allowances were covered under the litigation. The deprivation of rightful allowances beginning 

in 2010 was the reason for the litigation, and the Court ordered EPA to "promptly" make these changes for 

the entire 2010-2014 control period. Solvay comments that to comply with the Court order, recoupment is 

essential to remedy the error made by the EPA in issuing the 2010 HCFC allowances. 

Solvay disagrees with EPA’s concern that as the number of allowances is lowered, providing the 

recoupment allowances could upset the market by depriving other holders of the allowances they 

anticipate they will receive. Solvay also disagrees with EPA’s statement that if EPA were to literally 

follow the Court's order and provide the 2010 consumption allowances, they could not be used to 

consume or produce product since these allowances have expired. Solvay quotes AT&T Corp. v. FCC, 448 

F.3d 426, 433(D.C Cir. 2006) for the proposition that when an agency “...commits legal error, the proper 

remedy is one that puts the parties in the position they would have been in had the error not been 

made” (citing Exxon Co. v. FERC, 182 F.3d 30, 47 (D.C. Cir. 1999). Solvay notes that the Court has further 
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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held that the proper remedy to an error is “to put the victim of the agency error ‘in the economic 

position it would have occupied but for the error’." [The correct citation for this quotation is Ethyl Corp. 

v. Browner, 67 F.3d 941, 945 (D.C. Cir. 1995) (quoting Delta Data Sys. Corp. v. Webster, 744 F.2d 197, 

206-07 (D.C. Cir. 1984).]

Solvay notes that the faulty production and consumption baselines determined individual company 

allowances not for the single year of 2010, but as EPA itself notes, for five years, 2010 through 2014.

Further, the Court ruled that absent a new act of Congress, these 2010 allowances cannot be withheld. 

Solvay comments that there is still ample time to implement this remedy and Solvay has repeatedly 

suggested scenarios for recoupment, as well as reminding the agency that it has an obligation to 

promptly issue these recoupment allowances. [0064, 0026]

EPA Response: After reviewing comments and relevant case law, and considering the Agency’s ability to provide 

a remedy for the legal error identified by the Court, EPA has decided to provide recoupment for both HCFC-22 

and HCFC-142b allowances. The agency believes this addresses any remaining issues arising from the Arkema v. 

EPA decision. See section IV.B.6. of the preamble to the final rule and earlier responses in this section for a full 

response.

 Arkema fully believes that EPA should provide recoupment. Further, Arkema comments that recoupment of 

allowances would not provide full compensation for Arkema’s losses in 2010. They believe that their 

shortfall in HCFC-22 allowances resulted in loss of sales of other refrigerants to their one-stop loyal 

customers. Arkema states that by vacating the 2009 Final Rule “insofar as it operates retroactively,” the D.C. 

Circuit annulled any and all portions reflecting the invalid baseline allowance levels, including the 2010 

allocations, and EPA cannot pick and choose the parties or times to which the vacatur applies. Further, they 

believe that by questioning whether Arkema applies to 2010, EPA is indicating that it wants to continue 

treating a vacated rule as binding and denying that effective judicial review of its action could be had. The 

commenter states that to deny them what they asked for in their original complaint would make a mockery

of the appellate review. [0073, 0028]

Arkema believes that their losses were significant, and therefore cannot compete effectively in the 

after-market. They state that they expended practically all of their 2010 allowances and would have 

used more had they been freely available. Arkema comments that even if EPA were to assume 

(incorrectly) that Arkema in 2010 could not have sold all the HCFC-22 for which it should have received 

allowances, Arkema could have stockpiled the material for sale in later years. Arkema believes that 

EPA’s analysis of the current market indicates that allowance holders have done exactly that, and the 

agency expects those quantities of HCFC-22 to be sold into the market in future years. Arkema believes 

they should have a fair opportunity to compete for those sales.

Arkema believes that the D.C. Circuit precedent requires reimbursement of Arkema and Solvay. Arkema

states that the Court repeatedly has held, when an agency “commits legal error, the proper remedy is 

one that puts the parties in the position they would have been in had the error not been made.”

Furthermore, it states that it would be an abuse of discretion for EPA not to provide Arkema and Solvay 

relief for the allowances denied them in 2010. According to Arkema, any claim that compensating 

Arkema and Solvay for their losses would require improper retroactive action, or somehow resurrect 

expired 2010 allowances, is off the mark. [0073, 0028]

EPA Response: See previous responses in this section and section IV.B.6. of the preamble to the final rule.

 Arkema comments that EPA may act in excess of its statutory authority in providing a remedy for legal error, 

and may even impose retroactive changes. [0073, 0028]
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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EPA response: EPA is not acting in excess of its statutory authority. See response to Honeywell in this section. In 

addition, EPA is not acting retroactively. EPA is not assigning new legal consequences to acts of production or 

import that occurred in 2010 using allowances allocated under the 2009 Final Rule. Nor is it taking away 

allowances from any company in order to give them to others. Rather, it is allocating additional allowances to 

make up for the loss of opportunities to produce or import that would have existed had EPA finalized the 

baselines as proposed in the regulatory text of the 2008 Proposed Rule.

3.1.2 Whether EPA should provide recoupment for HCFC–22 and HCFC–142b, or just HCFC–22 

allowances

EPA received two comments regarding whether EPA should provide recoupment allowances for HCFC-22 and 

HCFC-142b, or just HCFC-22. 

 Arkema comments that EPA should not increase the allowance pool for HCFC-142b production allowances 

when providing recoupment. Arkema suggests that EPA should provide recoupment based on the total 

allowance pool of 118 metric tons, rather than try to guess what it might have issued if the 2008 transfers 

had been honored in the 2009 Final Rule. According to the commenter, this means that the agency need 

only provide 69.8 metric tons of HCFC-142b production allowances in recoupment. [0073]

EPA Response: EPA is providing recoupment production and consumption allowances for both HCFC-142b and 

HCFC-22. See section IV.B.6. of the preamble to the final rule for a full response.

 Solvay believes EPA should provide recoupment for both HCFC-22 and HCFC-142b allowances. Solvay notes 

that its focus on HCFC-22 allowances should not be interpreted as a lack of interest in recoupment of HCFC142b allowances. Solvay believes recoupment should be provided for 142b as well, in part because it 

ensures traceability. Solvay believes that it is important to be consistent, to establish practices that benefit 

the environment and can serve as model both for future environmental programs and for developing 

countries that are only now beginning to have to design their own systems. [0064]

EPA Response: EPA is providing recoupment production and consumption allowances for both HCFC-142b and 

HCFC-22. See section IV.B.6. of the preamble to the final rule for a full response.

3.1.3 Whether EPA should provide recoupment for production and consumption, or just 

consumption allowances

The above comments from Arkema and Solvay indicate that they believe recoupment should be provided for 

production and consumption.

EPA Response: EPA is providing recoupment production and consumption allowances for both HCFC-142b and 

HCFC-22. See section IV.B.6. of the preamble to the final rule for a full response.

3.2 Whether EPA should finalize option 1, 2, 3 or 4 to adjust allowances in 

future control periods to reflect the Arkema v. EPA decision (i.e., 

recoupment)

EPA received five comments in support of a specific option for recoupment. One comment supported option 1, 

two comments supported option 3, and two comments supported option 4. An additional two comments did 

not support a specific option. 
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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3.2.1 Providing recoupment allowances in 2013 in addition to the aggregate level of 

production and consumption specified in the Final Rule (i.e., option 1)

Out of the four comments provided on option 1, only Mexichem Fluor would support this option under certain 

conditions. Solvay, Honeywell, and Arkema do not support option 1. 

 Mexichem Fluor commented that, if recoupment allowances are issued, it would not object to this option as 

long as: overcompensation is avoided; unused 2010 allowances are taken into account; and market 

distortions are minimized. [0066]

EPA Response: EPA is finalizing recoupment option 2 for the reasons provided in the preamble. See section 

IV.B.6. of the preamble to the final rule for a full response.

 Solvay disagrees with this option. Solvay believes that expanding the number of allowances is in direct 

contradiction with EPA’s stated goal of promoting a sustainable recycling industry, and that issuing further 

allowances is not necessary to correct EPA’s mistake. 

Solvay aligns with the June 2, 2011 submission to the Docket by the Natural Resources Defense Council: 

“...NRDC opposes any option that would increase the number of HCFC allowances issued for 2011 or 

subsequent years. That would increase the burden of ozone-depleting HCFC-22 in the atmosphere, and 

increase the risk of fatal and non-fatal skin cancers, cataracts, and immunological disorders for all 

Americans and for billions of other people. EPA needs to find a solution to the allocation problem before 

the agency that does not place any additional burden on the stratosphere, on public health, or on the 

natural environment.” [0064]

EPA Response: EPA is finalizing recoupment option 2 for the reasons provided in the preamble. See section 

IV.B.6. of the preamble to the final rule for a full response.

 Honeywell states that under EPA’s option 1, HCFC consumption and production would increase for 2013, 

which is prohibited by Title VI of the Clean Air Act. [0082]

EPA Response: EPA is finalizing recoupment option 2 for the reasons provided in the preamble. See previous 

response to Honeywell on EPA’s statutory authority as well as section IV.B.6. of the preamble to the final rule for 

a full response.

 Arkema states that option 1 ignores the D.C. Circuit’s holding by preserving benefits of the vacated 2009 

Final Rule to other allowance holders. Recoupment under option 1 would sustain the advantage of other 

allowance holders over Arkema and Solvay. In addition, they state that option 1 would ignore the public 

interest, allow some parties to keep unlawful benefits, and result in increased environmental injury. Beyond 

that, Arkema states that EPA would obtain the extra allowances for recoupment by taking allowances from 

the “cushion” between the Montreal Protocol cap and the total allocation. Further, releasing extra 

allowances would defeat EPA’s goal of supporting the reclamation industry. Arkema states that EPA should 

not thwart the goals of the program solely for the sake of making sure that certain allowance holders retain 

advantages to which they never were entitled. Arkema believes that recoupment on these terms would 

short-change Arkema and Solvay because it would perpetuate the imbalance in the allowance shares 

created by the 2009 Final Rule. [0073]

EPA Response: See section IV.B.6. of the preamble to the final rule for a response to the commenter’s concern 

regarding the public interest and injury to the environment. The commenter contends that they should receive 

recoupment allowances at the expense of all other allowance holders because other allowance holders received 

a supposed “windfall” in 2010. EPA does not find this argument convincing. While the commenter argues that all 

other allowance holders had more opportunity to produce or import than they would have had if the 2008 interpollutant transfers were included in the 2009 Final Rule, those opportunities were not in fact used industrywide. As stated in the preamble to the proposed rule at 77 FR 248, 425 ODP-weighted MT of consumption 

allowances industry-wide were not used in 2010. This amount is more than 20 percent larger than the number 
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

Page 35

of consumption allowances EPA is providing in recoupment. The commenter is in effect arguing that companies 

who had the opportunity to produce or import in 2010 and did not use it, should now have fewer allowances 

merely because they could have produced or imported more in 2010. EPA does not agree with this logic and is 

finalizing recoupment option 2. 

3.2.2. Allocating recoupment allowances over two years (2013–2014) in addition to the 

aggregate level of production and consumption specified in the Final Rule (i.e., option 

2)

EPA received five comments regarding option 2, all in opposition.

 Mexichem Fluor comments that option 2 would lead to further unfair economic rewards for the companies 

receiving recoupment allowances. [0066]

EPA Response: EPA is finalizing recoupment option 2 for the reasons provided in the preamble. See section 

IV.B.6. of the preamble to the final rule for a full response.

 Mondy Global Inc. states that to provide additional allowances to companies in the form of recoupment in 

2013 and/or 2014 would reallocate market share in violation of long-standing EPA policy. The commenter 

supports EPA’s practice of allocating allowances based on baseline. According to the commenter, if EPA 

were to provide companies additional allowances in the form of recoupment during this period, the market 

share will shift in favor of these companies and at the expense of those not receiving recoupment 

allowances. [0055]

EPA Response: EPA is finalizing recoupment option 2 for the reasons provided in the preamble. See section 

IV.B.6. of the preamble to the final rule for a full response.

 Solvay disagrees with allocating recoupment allowances over two years in addition to the aggregate level of 

production and consumption specified in the 2009 Final Rule. Solvay believes that expanding the number of 

allowances is in direct contradiction with EPA’s stated goal of promoting a sustainable recycling industry, 

and that issuing further allowances is not necessary to correct EPA’s mistake. [0064]

EPA Response: EPA is finalizing recoupment option 2 for the reasons provided in the preamble. See section 

IV.B.6. of the preamble to the final rule for a full response.

 Honeywell states that under EPA’s option 2, HCFC consumption and production for both 2013 and 2014 

would increase when compared to the 2009 Final Rule, which is prohibited by Title VI of the Clean Air Act. 

[0082]

EPA Response: EPA is finalizing recoupment option 2 for the reasons provided in the preamble. See section 

IV.B.6. of the preamble to the final rule for a full response.

 Arkema states that option 2 ignores the D.C. Circuit’s holding by preserving benefits of the vacated 2009 

Final Rule to other allowance holders. Recoupment under option 2 would sustain the advantage of other 

allowance holders over Arkema and Solvay. In addition, option 2 would ignore the public interest, allow 

some parties to keep unlawful benefits, and result in increased environmental injury. Arkema believes that 

recoupment on these terms would short-change Arkema and Solvay because it would perpetuate the 

imbalance in the allowance shares created by the 2009 Final Rule. [0073]

EPA Response: EPA is finalizing recoupment option 2. See the response to Arkema’s comment on option one in 

section 3.2.1 of this RTC and section IV.B.6. of the preamble to the final rule for a full response.
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

Page 36

3.2.3 Allocating recoupment allowances from the aggregate level of production and 

consumption specified in the Final Rule over two years (2013–2014) (i.e., option 3)

Three comments were received regarding option 3, which was supported by Arkema and Solvay. Mexichem

Fluor believes this option would lead to further unfair economic rewards for those receiving allowances.

 Arkema states that option 3 is the only recoupment alternative that satisfies the D.C. Circuit mandate to 

make Arkema and Solvay whole. Arkema believes that recoupment of both production and consumption 

allowances should be spread out over two years to maximize Arkema and Solvay’s opportunity to utilize 

allowances and minimize disruption to other allowance holders. Arkema comments that a reduction in 

allowances for other allowance holders is not a disadvantage due to the fact that these parties had more 

HCFC-22 allowances in 2010 than they should have. Arkema states that any failure to provide full and 

prompt relief to Arkema and Solvay for 2010 would disregard the Arkema mandate, ignore D.C. Circuit 

precedent, and compromise the integrity of EPA’s HCFC program by confirming that the underlying rules 

may be disregarded on a whim. [0073]

EPA Response: EPA is finalizing recoupment option 2 for the reasons given in the preamble. That option does 

spread out the recoupment over two years. See previous responses to Arkema comments in this section of the 

document and section IV.B.6. of the preamble to the final rule for a full response. In addition, see response to 

Mexichem Fluor at section 3.1.1 of this document.

 Solvay sees option 3, whereby EPA allocates HCFC-22 allowances (both recoupment for 2010 and their 

allotted percentage of baseline for 2013 and 2014) to Solvay and Arkema and then allocates the remainder 

to all other allowance holders by revising the percentage of baseline allocated, as the only available course 

of action.

Solvay notes that because the number of HCFC allowances for 2010 was capped at an absolute number, 

the decision to issue Solvay and Arkema this lower quantity of allowances provided all other 

consumption and production allowance holders with 19 percent more allowances than they should have 

lawfully received. Thus, according to the commenter, Solvay, Arkema, and their customers were the only 

entities harmed when, as the Court ruled, they were unlawfully deprived of 22,481,543 metric tonnes of 

HCFC-22 baseline consumption allowances. As EPA notes in the preamble accompanying the Proposed 

Rule, the 2010 windfall allowances that other companies received over and above what they should 

have received were not consumed. The commenter notes that in 2010, these companies had the 

opportunity to consume these allowances or even use them to build inventory of HCFC-22 for future 

use, but as noted in the Preamble, this was not done. In contrast, for both 2010 and 2011 Solvay 

consumed nearly all (>98%) of its HCFC allowances issued for use in those years. [0064]

Solvay notes that their efforts to overturn EPA's Final Rule commenced well in advance of the May 10, 

2010 Court hearing. They believe that since their request for review and subsequent litigation was 

known within the industry, the possibility that the Court could rule in Solvay’s favor should have been a 

clear variable for all market participants to consider. Since the Court issued its decision on August 27, 

2010, these windfall allowance holders had four months to digest the factual implications of the 

decision and decide what actions they would take. Solvay says that these companies cannot now look to 

the EPA to compensate them for their own market decisions. [0064]

EPA Response: EPA is finalizing recoupment option 2 for the reasons given in the preamble. Regarding the 

concept of a windfall, see the response to Arkema at section 3.2.1. of this document.

The commenter also asserts that EPA is compensating companies for past market decisions by other allowance 

holders. EPA is only providing recoupment allowances to make up for lost opportunities for those companies 

that would have received more HCFC-22 or HCFC-142b allowances in 2010 if the 2008 inter-pollutant transfers 
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

Page 37

were accounted for in the 2009 Final Rule. EPA is issuing HCFC-22 recoupment allowances to Arkema and Solvay 

because they received fewer HCFC-22 allowances than they would have received if the Agency had reflected the 

2008 inter-pollutant allowance transfers in the baselines. EPA is issuing HCFC-142b recoupment allowances to all 

companies that received fewer HCFC-142b allowances than they would have received if the Agency had 

reflected the 2008 inter-pollutant transfers in the baselines. However, the Agency is not compensating any 

company for decisions not to use allowances they did receive. In addition, EPA is not extracting future 

allowances from companies based on their 2010 production and consumption levels for the reasons stated 

previously. See responses to Arkema earlier in this document and section IV.B.6. of the preamble to the final 

rule for a full response.

 Mexichem Fluor believes that option 3 would lead to further unfair economic rewards for the companies 

receiving recoupment allowances and would provide distinct overcompensation due to the changed market 

conditions. [0066]

EPA Response: EPA is finalizing recoupment option 2 for the reasons given in the preamble. EPA does not 

believe providing the number of allowances “lost” in 2010 in 2013 and 2014 is overcompensating the petitioners 

in Arkema since (1) they received fewer allowances than they would have received had the 2008 inter-pollutant 

transfers been included in the 2009 Final Rule, and (2) they could have used those allowances to either produce 

or import HCFC-22 in 2010 or stockpile it for later years when there are fewer HCFC-22 allowances. See previous 

responses in this section and section IV.B.6. of the preamble to the final rule for a full response.

3.2.4 Treating missed allowances from 2010 as impossible to recoup (i.e., option 4)

Three comments were received regarding option 4. Two commenters supported this option and Arkema 

objected.

 NRDC, IGSD, and EIA oppose all of the recoupment proposals and support the option of not allowing 

recoupment. The commenter states that they oppose any option for implementing Arkema that increases 

the total number of allowances, which would only increase harm to the ozone layer and to public health and 

welfare. [0067]

NRI supports option 4 for recoupment. EPA should not further impair allowance holders who had no role in 

the reason for the litigation. It is the cleanest, simplest way to satisfy the Court’s ruling without causing 

further disruption to the industry. [0068]

EPA Response: EPA is finalizing recoupment option 2 for the reasons given in the preamble. See responses to 

NRDC comment in section [ ] above and section IV.B.6. of the preamble to the final rule for a full response.

 Arkema comments that EPA’s preferred position of option 4 contradicts previous decisions and court rulings, 

as well as EPA’s position before the D.C. Circuit. During the Arkema litigation, EPA obtained more time for 

briefing by telling the Court that any economic loss to Arkema could be remedied by shifting additional 

allowances to Arkema and Solvay in future years. Arkema states that concerns raised over the disadvantage 

that recoupment would bring to other allowance holders (who would receive a smaller proportional share of 

the total allowance pool) ignores the fact that these same allowance holders received a correspondingly 

larger proportion of the market in 2010 when the agency acted in violation of law in assigning those 

allocations. [0073]

EPA Response: EPA is not finalizing recoupment option 4. See section IV.B.6. of the preamble to the final rule for 

a full response.
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

Page 38

4. HCFC-22 AND HCFC-142B ALLOCATIONS IN 2012-2014

EPA received 104 comments on HCFC allocations in 2012-2014. Comments were in reference to three main 

topics: 

4.1 Decreasing HCFC-22 consumption allowances relative to the 2009 Final Rule

4.2 Increasing HCFC-22 production allowances relative to the 2009 Final Rule

4.2.1 Whether EPA can decouple the percentage of baseline allocated for production and 

consumption

4.2.2 Whether EPA should increase the percentage of baseline allocated for production

4.2.3 Whether an increase in the number of HCFC-22 production allowances would result in 

an increase in HCFC consumption and production

4.3 HCFC-142b consumption and production allowance allocations

Count Commenter Organization Document ID No

1 Tony Arceneaux A & M Heating, Air Conditioning & Refrigeration, Inc. EPA-HQ-OAR-2011-0354-0077

2 David Wallace AZ Refrigerant Abatement EPA-HQ-OAR-2011-0354-0053

3 Charles McCrudden ACCA EPA-HQ-OAR-2011-0354-0081

4 Karim Amrane AHRI EPA-HQ-OAR-2011-0354-0072

5 John M. Batt Airgas, Inc. EPA-HQ-OAR-2011-0354-0079

6 William J. Hamel Arkema Inc. EPA-HQ-OAR-2010-1040-0028

7 William J. Hamel Arkema Inc. EPA-HQ-OAR-2011-0354-0073

8 Matthew Jahn Bay Area Refrigerant Recovery, Inc EPA-HQ-OAR-2011-0354-0080

9 Rick Boettcher Bettcher Enterprises, Inc EPA-HQ-OAR-2011-0354-0056

10 Zachary T. Mouton BRYANS UNITED AIR CONDITIONING EPA-HQ-OAR-2011-0354-0118

11 Kelli K. Williams Bryson Insurance EPA-HQ-OAR-2011-0354-0135

12 Jim Gossett Carroll Area Development Corp. EPA-HQ-OAR-2010-1040-0159

13 Jeff Moe Center for Energy Efficiency and Sustainability, 

Ingersoll Rand EPA-HQ-OAR-2011-0354-0063

14 Rick Roland Certified Refrigerant Services Inc. EPA-HQ-OAR-2011-0354-0057

15 Rich Dykstra Consolidated Refrigerant Reclaim EPA-HQ-OAR-2011-0354-0083

16 Joel K. French Coolgas, Inc. EPA-HQ-OAR-2011-0354-0088

17 Anonymous DALHOUSIE UNIVERSITY EPA-HQ-OAR-2011-0354-0091

18 Larry N. Buras Delta Ice Air & Heat, Inc. EPA-HQ-OAR-2011-0354-0138

19 M. J. Dermid Dermid Enterprises, LLC EPA-HQ-OAR-2011-0354-0113

20 Jeff Tauzin Doug's Refrigeration EPA-HQ-OAR-2011-0354-0116

21 Mack McFarland DuPont EPA-HQ-OAR-2010-1040-0020

22 Mack McFarland DuPont EPA-HQ-OAR-2011-0354-0070

23 Dennis deBoisblanc Sr. E.A.S.E. LLC EPA-HQ-OAR-2011-0354-0107

24 Mike Falgout Energy Specialists Air Conditioning Co. EPA-HQ-OAR-2011-0354-0109

25 Terry Leonard Express Heating and Air Conditioning Services LLC EPA-HQ-OAR-2011-0354-0137

26 John Haynes Express Recovery, Inc EPA-HQ-OAR-2011-0354-0075

27 Erik R. Lieberman Food Marketing Institute (FMI) EPA-HQ-OAR-2011-0354-0157

28 Sandra Benenate Fountainbleau Management Services, LLC EPA-HQ-OAR-2011-0354-0139

29 Carl Grolle Golden Refrigerant EPA-HQ-OAR-2011-0354-0054

30 Gary L. Clark Goodman Global, Inc. EPA-HQ-OAR-2011-0354-0084

31 Anonymous Greens Services Inc. EPA-HQ-OAR-2011-0354-0090

32 Jeff Greer Greer Holdings, LLC EPA-HQ-OAR-2011-0354-0052

33 RemTec International Group of EPA Certified ODS Reclaimers EPA-HQ-OAR-2011-0354-0085

34 Jonathan Melchi Heating, Air-Conditioning and Refrigeration EPA-HQ-OAR-2011-0354-0069
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

Page 39

Count Commenter Organization Document ID No

Distributors International

35 Marsha D Fowler Highland Electric Heat & Air LLC EPA-HQ-OAR-2011-0354-0096

36 Leonard Tavlin Hinton A/C Services EPA-HQ-OAR-2011-0354-0106

37 Stephen Bernhardt Honeywell EPA-HQ-OAR-2010-1040-0029

38 Steven H. Bernhardt Honeywell EPA-HQ-OAR-2011-0354-0082

39 Dave Mann Houston Refrigerant Recovery, LLC EPA-HQ-OAR-2011-0354-0060

40 Stephen P. Mandracchia Hudson Technologies EPA-HQ-OAR-2010-1040-0027

41 Stephen P. Mandracchia Hudson Technologies Company EPA-HQ-OAR-2011-0354-0071

42 David Murray HVAC Service Solutions EPA-HQ-OAR-2011-0354-0115

43 Bill Sciacca Johnstone Supply EPA-HQ-OAR-2011-0354-0095

44 Brad Campagna Johnstone Supply EPA-HQ-OAR-2011-0354-0133

45 David P. Huet Johnstone Supply EPA-HQ-OAR-2011-0354-0101

46 Barry Tumminello Johnstone Supply EPA-HQ-OAR-2011-0354-0098

47 Joey Larson Johnston Supply EPA-HQ-OAR-2011-0354-0136

48 Jim Cherry Johnstone Supply EPA-HQ-OAR-2011-0354-0099

49 Dwayne Farbe Johnstone Supply EPA-HQ-OAR-2011-0354-0097

50 Jim Gandy Johnstone Supply EPA-HQ-OAR-2011-0354-0120

51 Joe Cardenas Johnstone Supply EPA-HQ-OAR-2011-0354-0124

52 Terry Deppe Johnstone Supply EPA-HQ-OAR-2011-0354-0140

53 Tommy Royer Johnstone Supply EPA-HQ-OAR-2011-0354-0145

54 George Sexton Johnstone Supply EPA-HQ-OAR-2011-0354-0132

55 Harold Petit, Jr Johnstone Supply EPA-HQ-OAR-2011-0354-0153

56 Tim and Noemi Frazee LA Refrigerant Recovery, Inc. EPA-HQ-OAR-2011-0354-0051

57 Paul Metzler Lemoine Marine Refrigeration, Inc EPA-HQ-OAR-2011-0354-0127

58 Kyle E. Gilley Lennox International Inc. EPA-HQ-OAR-2011-0354-0061

59 Dwayne A. Mayeux Mayeux's A/C & Heating, Inc. EPA-HQ-OAR-2011-0354-0094

60 Dianne Mayeux Mayeux's A/C & Heating, Inc. EPA-HQ-OAR-2011-0354-0093

61 Peter M. Geosits Mexichem Fluor Inc. EPA-HQ-OAR-2011-0354-0066

62 Peter Koelsch MDA Manufacturing, Inc. EPA-HQ-OAR-2010-1040-0030

63 Diran Yegparian Mondy Global, Inc. EPA-HQ-OAR-2011-0354-0055

64 Maureen Beatty National Refrigerants, Inc. (NRI) EPA-HQ-OAR-2011-0354-0068

65 David Doniger Natural Resources Defense Council (NRDC) EPA-HQ-OAR-2010-1040-0033

66 David Doniger Natural Resources Defense Council (NRDC) EPA-HQ-OAR-2011-0354-0067

67 Michael Seabaugh NORDYNE EPA-HQ-OAR-2011-0354-0089

68 Perry L. Pullen Perry’s Electric, Inc. EPA-HQ-OAR-2011-0354-0131

69 Kerry K. Private Citizen Comment EPA-HQ-OAR-2011-0354-0103

70 Anonymous Private Citizen Comment EPA-HQ-OAR-2011-0354-0102

71 Anonymous Private Citizen Comment EPA-HQ-OAR-2011-0354-0110

72 R.A. Mika Private Citizen Comment EPA-HQ-OAR-2011-0354-0111

73 Anonymous Private Citizen Comment EPA-HQ-OAR-2011-0354-0112

74 Anonymous Private Citizen Comment EPA-HQ-OAR-2011-0354-0100

75 Kenny Peffer Private Citizen Comment EPA-HQ-OAR-2011-0354-0121

76 Ti-Joe Augustin Private Citizen Comment EPA-HQ-OAR-2011-0354-0123

77 Jaime Dheming Private Citizen Comment EPA-HQ-OAR-2011-0354-0119

78 Larry Burton Private Citizen Comment EPA-HQ-OAR-2011-0354-0125

79 J. Young Private Citizen Comment EPA-HQ-OAR-2011-0354-0142

80 B. Truse Private Citizen Comment EPA-HQ-OAR-2011-0354-0128

81 A. Russo Private Citizen Comment EPA-HQ-OAR-2011-0354-0146

82 E. E. Wellmeyer Private Citizen Comment EPA-HQ-OAR-2011-0354-0130
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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Count Commenter Organization Document ID No

83 Anonymous Private Citizen Comment EPA-HQ-OAR-2011-0354-0129

84 C. Legendre Private Citizen Comment EPA-HQ-OAR-2011-0354-0134

85 Anonymous Private Citizen Comment EPA-HQ-OAR-2011-0354-0151

86 B. Stephens Private Citizen Comment EPA-HQ-OAR-2011-0354-0152

87 J. Welsh Private Citizen Comment EPA-HQ-OAR-2011-0354-0155

88 J. Guidry II Private Citizen Comment EPA-HQ-OAR-2011-0354-0144

89 Jerry Dykstra Rapid Recovery Franchise Partners EPA-HQ-OAR-2011-0354-0086

90 Jeff Hudson Regional Mechanical EPA-HQ-OAR-2011-0354-0117

91 Richard Marcus RemTec International EPA-HQ-OAR-2010-1040-0024

92 Karen B. Meyers Rheem Manufacturing Company EPA-HQ-OAR-2011-0354-0087

93 John White Rhynard and White Enterprises, Inc. EPA-HQ-OAR-2011-0354-0058

94 Kenneth M. Ponder RMS of Georgia, LLC EPA-HQ-OAR-2011-0354-0078

95 Nick Thomas Rocky Mountain Refrigerant Abatement, LLC EPA-HQ-OAR-2011-0354-0059

96 Bruce MacMorran RSS Realtors EPA-HQ-OAR-2011-0354-0105

97 Don Magid Solvay Fluorides, LLC EPA-HQ-OAR-2010-1040-0026

98 Don Magid Solvay Fluorides, LLC EPA-HQ-OAR-2011-0354-0064

99 Chan Ritchie Southeast Refrigerant Recovery, Inc. EPA-HQ-OAR-2011-0354-0074

100 A. Stephen Trevino Summit Refrigerants EPA-HQ-OAR-2011-0354-0062

101 Craig Johnson Surgi's Heating and Air Conditioning EPA-HQ-OAR-2011-0354-0114

102 Timothy LeCoq T.L. Maintenance HVAC EPA-HQ-OAR-2011-0354-0092

103 Joey Pittman Thermal Solutions LLC EPA-HQ-OAR-2011-0354-0108

104 Michael Kelly Tri-Parish A/C & Refrigeration, L.L.C. EPA-HQ-OAR-2011-0354-0122

4.1 Decreasing HCFC-22 consumption allowances relative to the 2009 Final 

Rule

EPA received 55 comments (some signed by multiple organizations) related to the level of HCFC-22 consumption 

allowances, with 42 comments supporting a decrease in allowances relative to the 2009 Final Rule, and 13 

comments opposing a decrease. EPA received another 47 comments opposed to decreasing HCFC-22 

production, but these comments are most likely using the term “production” in a general sense, and are in fact 

referring to the HCFC-22 consumption allocation.

The following 42 comments support decreasing HCFC-22 consumption allowances relative to the 2009 Final 

Rule. The majority of commenters support the higher end of proposed reductions.

 NRI supports EPA’s proposal to reduce baseline consumption allocations to the lowest amount proposed for 

2012, 2013, and 2014. NRI believes a reduced HCFC-22 allocation will stimulate the recovery and 

reclamation of refrigerant installed in equipment.[0068]

EPA Response: EPA is finalizing an amount of consumption allowances that is almost 30 percent below the 

consumption amount in the 2009 Final Rule. EPA is providing consumption allowances in this final rule based on 

its assessment of market conditions (see section IV.B.1-3. of the preamble for the specifics). For 2012, the timing 

of this rule means that EPA is looking back at actual events during 2012 rather than projecting future needs. The 

amount of consumption allowances EPA is finalizing for 2012 corresponds with the lowest proposed 

consumption amount for that year. In projecting future needs during 2013-2014, EPA is taking into account the 

ability to recover HCFC-22, the capacity for reclaiming or reusing HCFC-22, and the amount of existing inventory 

from past years, The agency is not finalizing the smallest allocation proposed for 2013-2014 because EPA did not 

receive sufficient data on in-house supermarket reuse (see section IV.B.3 of the final rule preamble). EPA 
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

Page 41

believes that the amounts in this rulemaking will increase market incentives to properly manage and recover 

HCFC-22 while still allowing for servicing of existing HCFC-22 systems.

 Arkema comments that a further reduction in HCFC-22 allowances is the best way to foster the necessary 

reclamation that is based on distillation. For HCFC-22 consumption allowances, Arkema believes that 25,100 

MT in 2012, 20,800 MT in 2012, and 16,400 MT in 2014 would be appropriate allocations. The company 

states that these allocation levels would help achieve a strong, sustainable recycling industry, avoid market 

disruption in 2015 and also allow for continued equipment servicing. [0073, 0028]

EPA Response: See previous response in this section to NRI.

 RMS Georgia recommends a full 38% reduction in allocation for 2012. It supports EPA’s statement in the 

proposed rule that a lower HCFC-22 consumption allocation is justified by decreased demand and the 

availability of surplus inventory and the goal of further incentivizing recovery and reclamation.[0078]

EPA Response: See previous response in this section to NRI.

 Airgas suggests that EPA use the Lowest Annual Allocations/Smaller Allocation Scenario due to the fact that 

U.S. reclaimers have the capacity to meet necessary volumes so long as enough used HCFC-22 is recovered 

and returned for reclamation. [0079]

EPA Response: See previous response in this section to NRI as well as EPA’s discussion of reclamation capacity in 

section IV.B.2 of the final rule.

 Rocky Mountain Refrigeration Abatement encourages EPA to decrease the amount of HCFC-22 allowances 

to the fullest extent proposed in the new rule. As a small refrigerant recovery company, Rocky Mountain 

Refrigerant Abatement has observed that contractors and technicians are more inclined to recover HCFC-22 

if they receive payment for the used gas, and at the present price levels it is nearly impossible for a 

contractor to recover the costs involved in EPA compliant recovery. The commenter states that many who 

could recover refrigerants are not doing so because of the additional costs involved. Rocky Mountain 

Refrigerant Abatement notes that EPA should decrease the amount of virgin HCFC-22 available in the 

marketplace to increase the value of reclaimable used refrigerant. The commenter states that reducing the 

allowances to the fullest extent proposed will ultimately decrease the quantity of available virgin HCFC-22 

and increase the market value of recovered HCFC-22. [0059]

EPA Response: See previous response in this section to NRI. EPA agrees that decreased availability of HCFC-22 

should increase the value of used refrigerant. Additionally, since the publication of the proposed rule, EPA has 

heard from stakeholders that some reclaimers are already offering increased incentives to return recovered 

refrigerant.

 Thermal Solutions, Surgi’s Heating and Air Conditioning, and Doug’s Refrigeration support the proposed 

decrease in consumption allowances for HCFC-22. They state that this will accelerate the adoption of the 

more environmentally friendly R-410A. [0108, 0116, 0114]

EPA Response: See previous response in this section to NRI. 

 Greer Holdings, Rhynard and White Enterprises, Bettcher Enterprises, Southeast Refrigerant Recovery, 

Express Recovery, and Bay Area Refrigerant Recovery encourage EPA to decrease the amount of HCFC-22 

allowances as proposed in the new rule (some emphasizing their support for the maximum reduction). They 

discuss the economics of refrigerant recovery: when the value of HCFC-22 is low, no incentives exist to 

encourage recovery, and recovery may be more expensive than simply venting the gas. Reducing the 

allocation will shrink the available supply of HCFC-22, and increased buyback prices will incentivize better 

recovery of HCFC-22. [0052, 0056, 0058, 0074, 0075, 0080]

EPA Response: See previous response in this section to NRI.

 Houston Refrigerant Recovery supports the proposed rule to reduce HCFC-22 allowances. The commenter 

states there is an oversupply of HCFC-22 on the market today, and if the supply does not decrease, the price 
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

Page 42

of both new and used HCFC-22 will remain low. As long as it is less expensive to vent than to recover 

refrigerants, contractors have no financial incentive to recover. The commenter would like the overall supply 

of HCFC-22 to be reduced, so that the value of reclaimed refrigerant is high enough to encourage 

compliance by the industry. [0060]

EPA Response: See previous response in this section to NRI.

 Summit Refrigerants supports the maximum reduction in allocations for HCFC-22. Summit Refrigerant 

comments that significantly reduced allocations will result in greater recovery of used HCFC-22 refrigerant.

The commenter notes that based on the decline in prices for HCFC-22 in 2011, they conclude that the 

availability of virgin HCFC-22 from U.S. manufacturers and importers, together with the unknown supply of 

stockpiled HCFC-22, is greater than the demand for HCFC-22 by the HVAC service industry. A reduction in 

the availability of virgin HCFC-22 will result in an increase in value of both virgin and reclaimed HCFC-22, 

which will allow reclaimers to offer greater financial incentives to the HVAC service industry to recover used 

HCFC-22 and to wholesalers. Summit Refrigerants further comments that greater recovery of used HCFC-22 

will result in increased use of reclaimed HCFC-22, and reduce the need to manufacture and import virgin 

HCFC-22. [0062]

EPA Response: See previous response in this section to NRI.

 Solvay supports a significant reduction in HCFC-22 allowances. EPA reports that approximately 20 percent of 

consumption allowances it issued in 2010 and 2011 went unused. Solvay therefore believes that a reduction 

of at least this magnitude should be applied to future allowances. [0064]

EPA Response: See previous response in this section to NRI. The commenter’s statement about 2011 

consumption is not accurate. EPA had not released 2011 consumption data prior to publishing the proposed 

rule. The agency releases U.S. HCFC consumption data through the Montreal Protocol Article 7 report to the 

United Nations Environment Programme. Historically, EPA has also announced the final annual consumption of 

HCFC-22, specifically, once all of the data has been reviewed. In 2010, reported HCFC-22 consumption was 

approximately 85 percent of the total HCFC-22 consumption allocation for that year.

 A group of 20 EPA Certified ODS Reclaimers recommend that EPA reduce allowances as far as legally 

possible: a full 38% reduction in allocations for 2012, 42% in 2013, and 47% in 2014. The reclaimers 

unanimously support EPA’s belief “that establishing a lower aggregate HCFC-22 consumption allocation for 

2012-2014 than in the 2009 Final Rule is not only justified by decreased demand and the availability of 

surplus inventory from past years, but also because a lower virgin supply will further incentivize recovery 

and reclamation.” They note that up to this point in time, there is no incentive in the marketplace that 

encourages recovery and reclamation, which is reflected in the fact that a significant percentage of the 

allowances authorized for 2010 and 2011 were unused in those two years. According to the commenters, 

further steep reductions in allocations are needed to incentivize recovery and reclamation. [0085]

EPA Response: See previous response in this section to NRI.

 NRDC, IGSD, and EIA strongly support reducing the existing allowance schedule by at least the maximum 

percentages proposed by EPA for 2012-2014. Specifically, the consumption allocation for virgin HCFC-22 

should be no larger than 25,100 MT in 2012, 20,800 MT in 2013 and 16,400 MT in 2014. NRDC, IGSD, and 

EIA support allocating no more consumption allowances than 17.7 percent of the revised baseline in 2012, 

no more than 11.4 percent in 2013, and no more than 8.3 percent in 2014. Rather, the commenters strongly 

believe reducing consumption allowance allocations below these values is both necessary and practicable 

under Section 606(a) of the CAA. They strongly oppose any larger allocations. The basis for accelerating 

reductions is: 1) it is necessary to protect human health and the environment; and 2) it is practicable in 

terms of technology, safety, and availability of alternatives. [0067, 0033]

• The commenter states that the recovery of the ozone layer has been delayed by the rapid 

increase in global HCFC production, most of which is HCFC-22. In addition to destroying ozone, 
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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HCFC-22 is a potent greenhouse gas contributing to climate change. The commenter also notes 

that a more rapid acceleration of reductions will help ensure a smooth transition to the 2015 

step-down requirements of the Montreal Protocol. [0067]

• The commenter states that containment, reclamation, reprocessing, and reuse of recovered 

HCFC-22 are all practicable with present technology. Additionally, alternatives are on the market 

and more are emerging. Accelerating the phaseout schedule would address the HCFC-22 market 

price issue by reducing over-supply. In effect, this would make containment, reclamation, 

processing and reuse more competitive and permit a larger percentage of HCFC-22 demand to 

be met with recovered materials. Similarly, it would reduce demand for HCFC-22 based 

equipment and encourage transition to appliances that use available substitutes and achieve 

higher energy efficiency. The transition to new substances and improved recovery and recycle at 

service will create new well-paid jobs. [0067]

EPA Response: See previous response in this section to NRI. EPA is providing allowances in this final rule based 

on its assessment of market conditions. For 2012, the timing of this rule means that EPA is looking back at actual 

events during 2012 rather than projecting future needs. The amount of consumption allowances EPA is finalizing 

for 2012 corresponds with the lowest proposed consumption amount for that year. For 2013-2014, EPA is taking 

the proposed reduction for existing inventory and the maximum proposed reduction for reclamation and reuse. 

EPA is not reducing allowances for 2013-2014 to account for recovery and reuse in the large retail food sector

because the agency did not receive comments or data to sufficiently support such a reduction. However,

expected supermarket recovery rates are incorporated into Vintaging Model estimates of recoverable 

refrigerant; the model estimates that in 2012-2014 there is enough recovered refrigerant to support the 

maximum proposed reduction for reclamation and reuse.

The commenter requests that EPA accelerate the phaseout schedule under section 606 of the CAA. As 

noted in the January 4, 2012 notice of proposed rulemaking (77 FR 242), EPA accelerated the HCFC 

phaseout schedule through the 1993 Final Rule. EPA further accelerated the HCFC phaseout schedule 

through the 2009 Final Rule. The accelerated schedule established through the 2009 Final Rule was 

unaffected by the Arkema decision and is therefore still in effect. EPA did not propose a further 

acceleration of the HCFC phaseout schedule in the January 4, 2012 notice of proposed rulemaking.

Rather, EPA stated: “To meet the 2010 stepdown requirement, EPA is continuing to allocate HCFC

allowances at a level that will ensure the aggregate HCFC production and consumption will not exceed 

25 percent of the U.S. baselines.” Because EPA did not propose an acceleration under section 606, and is 

not finalizing such an acceleration in this action, EPA did not specifically evaluate the factors listed in 

section 606.

EPA did propose and take comment on various options for the aggregate consumption allocation in each 

of the years 2012-2014. All proposed amounts would have kept aggregate consumption below the 

amount required by the 2010 stepdown. As discussed in the preamble, EPA’s goal is to foster an orderly 

transition to the 2015 stepdown. The aggregate consumption allocation in this final rule is designed to 

further that goal.

 Certified Refrigerant Services, Inc. supports a radical reduction of allowances to import and produce HCFC22, noting that currently there are too many import and production allocations. [0057]

EPA Response: See previous response in this section to NRI.

 Coolgas requests EPA to reduce the HCFC-22 allowances for 2012-2014 by the maximum alternative set 

forth in the Proposed Rule, i.e., 38% in 2012, 42% in 2013, and 47% in 2014. Coolgas believes that reducing 

HCFC-22 allowances by the maximum amount proposed will not cause a shortage of, or disruption in, the 

supply of HCFC-22 required to meet future servicing need. Any reduction in supply caused by the reduction 

in HCFC-22 allowances over 2012-2014 can be met from HCFC-22 stockpiles (surplus inventory) and from 
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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current and future recovery and reclamation capacity. Regarding the concern of some that the maximum 

proposed reduction would cause disruption in the market and a lack of supply for future servicing needs, 

Coolgas points out that the phaseout of CFCs did not result in a lack of supply. On the contrary, recovery and 

reclamation flourished, the market adjusted, and over the years there has been more than enough supply to 

meet the servicing needs. Coolgas believes that EPA’s adoption of the maximum proposed reduction in 

HCFC-22 allowances for 2012-2014 will not cause a disruption to the market or lack of supply similar to the 

CFC phaseout. [0088]

EPA Response: See previous response in this section to NRI. EPA acknowledges that CFC equipment is still in use 

today, having been serviced exclusively with recovered material for well over a decade. By reducing the HCFC-22 

allocation, the agency hopes to incentivize recovery and encourage transition to new non-ODS equipment. 

Recovery and reclamation are essential to ensuring that the transition is smooth, and that HCFC-equipment can 

still be serviced.

 Honeywell supports EPA’s proposal to make large reductions in the number of consumption allowances.

Honeywell believe reductions on the higher end of the 11 to 47 percent range set forth in the Proposed Rule 

will strike the appropriate balance between the needs of the marketplace and the urgent need to encourage 

transition and recovery and reclamation. [0082, 0029]

EPA Response: See previous response in this section to NRI.

 Rapid Recovery Franchise Partners comment that EPA should reduce baseline consumption allowances by 

no less than 45%. The commenters believe that doing so will result in an immediate and significant increase 

in the market price of virgin and reclaimed R-22, and that, in very short order, the price of used, reclaimable 

R-22 will rise to the level that contractors will quickly adapt their business practices by recovering 

significantly greater quantities for reclamation. According to the commenters, however, increasing the price 

by reducing the available quantity of R-22 is only part of the solution because regardless of the price, the 

recovery of small quantities of R-22 will continue to be economically impractical. 

Rapid Recovery Franchise Partners concur with the agency’s encouragement of increased recovery and 

note that the agency has focused much of its attention on production and consumption of virgin gas and 

reclaimed gas, a wise but incomplete approach. According to the commenter, simply reducing the 

available R-22 without increasing the amount of reclaimed gas will ultimately result in a severe shortage 

of R-22 for the service and repair industry in the future. Currently, HVAC contractors are not recovering 

enough R-2 to meet the level necessary to sustain the industry for the long term. [0086]

EPA Response: See previous response in this section to NRI, and section IV.B.2. of the preamble for a more 

complete response.

 Consolidated agrees with EPA that there is too much R-22 available in the market place today. Therefore 

Consolidated urges the EPA to enact the proposed rule and implement a reduction of 38% in 2012, 42% in 

2013, and 47% in 2014. [0083]

EPA Response: See previous response in this section to NRI.

 DuPont fully supports EPA's objective of encouraging a smooth transition to the 2015 step-down (to 10% of 

baseline HCFC consumption) and the 2020 elimination of HCFC-22 consumption required under the 

Montreal Protocol and previous rulemakings. DuPont’s market assessment supports EPA's conclusion that a 

significant reduction in HCFC-22 allocations is necessary to meet that objective. Specifically, DuPont 

supports the agency's suggested maximum reduction of total allowances proposed in the Proposed Rule; a 

total allocation of 25,100 MT in 2012, 20,800 MT in 2013, and 16,400 MT in 2014. [0070, 0020]

EPA Response: See previous response in this section to NRI.

 HARDI supports an aggressive and orderly phase down of HCFC-22, as well as EPA’s efforts to expedite the 

reduction HCFC-22 in this rulemaking. [0069]
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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EPA Response: See previous response in this section to NRI. 

 Golden Refrigerant states that EPA should cut the allocations at least to the level where the allocations plus 

the available amount of material coming from reclamation is less than the estimated demand for 2011. 

[0054]

EPA Response: See previous response in this section to NRI. The HCFC-22 allocation in the final rule is less than 

estimated need—accounting for sources other than newly-produced HCFC-22 that will meet that need (i.e. 

recovered or reclaimed refrigerant and surplus material from prior years). 

 LA Refrigerant Recovery, Inc and AZ Refrigerant Abatement, Inc both were in support of EPA’s proposed rule 

to further limit the importation of virgin HCFC-22 refrigerant. [0051, 0053]

EPA Response: See previous response in this section to NRI.

 RemTec International comments that the allocation percentages promulgated in the 2009 Final Rule were 

too high and therefore have not affected additional recovery and reclamation. They believe that current 

allocations should be reduced to 2015 levels in order to eliminate excess supplies of virgin R-22. [0024]

EPA Response: See previous response in this section to NRI, which explains how and why EPA set the final 

allocation level. EPA considered the 2015 allocation cap when setting the allowances for 2012-2014. In fact, the 

2014 allocation is less than the maximum allowed amount in 2015, which helps support EPA’s overall goal of 

increasing recovery and reclamation in order to help ensure a smooth transition to alternatives.

 Rheem stated their support of the EPA in the step-down of allocation levels to accelerate the move to nonfluorinated refrigerants. The company agrees that a reduction in allocations from 2012-2014 is appropriate 

given that industry is moving away from HCFCs. Rheem states that such an action may spur recovery and 

recycling efforts. The company comments that it is important that no action be taken that will limit the 

useful life of appliances that are already fielded by customers. [0087]

EPA Response: See previous response in this section to NRI. EPA also notes that it is not imposing any additional 

appliance use restrictions through this rule.

 Lennox supports the reduction of HCFC-22 allocations to the extent that the reduction constitutes 

reasonable regulation, and allows the orderly phase down and ultimate phaseout of HCFC-22 without 

market disruption. [0061]

EPA Response: See previous response in this section to NRI.

 AHRI supports EPA’s efforts to adjust the consumption allowances for HCFC-22 based on the evidence that 

supply has exceeded demand for 2010 and 2011. AHRI recognizes that the goal of 20% reclamation set by 

EPA has not been met, mainly due to the excess supply. [0072]

EPA Response: See previous response in this section to NRI.

 Mexichem Fluor supports EPA’s proposal to reduce consumption allowances relative to the 2009 Final Rule. 

According to the commenter, in determining the reduction, the need to expand reclamation activity and the 

increased installation of dry-shipped HCFC-22 condensing units should both be considered. Further, 

Mexichem Fluor supports the position set out in the Alliance for Responsible Atmospheric Policy to the EPA 

dated December 1, 2011, which indicates support for a 20% reduction in consumption allowances relative to 

the 2009 Final Rule. [0066]

EPA Response: See previous response in this section to NRI, as well as the responses in section 2.4 of this 

document, which respond to comments on dry-shipped condensing units.

 Hudson Technologies comments that their assessment of the market fully supports EPA’s conclusion that a 

significant reduction in HCFC-22 allocations is necessary to transition to the 2015 stepdown. Hudson 

recommends the maximum reduction of total allowances to ensure the continued viability of the 

reclamation industry: 25,100 MT in 2012, 20,800 MT in 2012, and 16,400 MT in 2014. [0071, 0027]
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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EPA Response: See previous response in this section to NRI.

 Ingersoll Rand supports measured reduction in the allocation levels from the 2009 Final Rule in order to 

provide an incentive for increased recovery for re-use or reclamation without dramatically altering the 

dynamics of the HCFC-22 production market. Ingersoll Rand believes reductions should be toward the less 

aggressive end of the range defined by EPA in the proposed rule. Ingersoll Rand supports the 20% reduction 

target for each year 2012, 2013, and 2014 relative to the original allocation levels established in the 2009 

HCFC Allocation outlined in a December 1, 2011 letter from the Alliance for Responsible Atmospheric Policy.

The commenter believes a 20% reduction is a significant move and is more than sufficient to provide an 

incentive for increased recovery for re-use and reclamation.

Ingersoll Rand further comments that there is no consensus understanding based on industry data of

the actual amount of virgin or used refrigerant in the marketplace today. The existing inventory is a 

critical element of understanding the balance between current and future demand relative to supply, so 

reductions more aggressive than 20% for each year could be considered more of a wild guess than a 

reasoned estimate. A more aggressive reduction risks overly constraining supply and the potential 

impact this could have on end-users is too negative to represent a reasonable balance with the value of 

a more compelling incentive for re-use and reclamation. [0063] 

EPA Response: See previous response in this section to NRI, as well as section IV.B.1. of the preamble for a more 

complete response.

 ACCA, in light of price volatility, suggests limiting any allocation adjustments to the Larger Allocation 

Scenario until the next stepdown in 2015. [0081]

EPA Response: See previous response in this section to NRI.

The following 13 comments do not support EPA’s proposal to decrease HCFC-22 consumption allowances 

relative to the 2009 Final Rule.

 Mondy Global, Inc. comments that EPA should not reduce the total number of consumption allowances 

allocated. The commenter states that none of the proposed allocation levels are adequate or appropriate 

for today’s market. The commenter has not seen a decrease in demand for HCFC-22, rather, Mondy could 

import more and customers would purchase it. Since EPA already reduced the cap on the total HCFC-22 

consumptions allowances in the 2009 Final Rule, the commenter sees no need to make further reductions at 

this time. [0055]

EPA Response: EPA is providing allowances in this final rule based on its assessment of market conditions. EPA 

presented its market research in the Adjustment Memo that accompanied the proposed rule. Comments on the 

memo, along with additional market data submitted during the comment period, helped EPA determine the 

final allocation amount. Taking into account the capacity for recovering and reclaiming or reusing HCFC-22 and 

the amount of existing inventory from past years, the final allocation is sufficient to meet servicing needs, as 

estimated by EPA’s Vintaging Model. Changes in servicing need projections from the 2009 Final Rule to this 

rulemaking are explained in the Adjustment Memo. The Recovery Memo, which is accompanying this final rule, 

shows the recovery estimates used in the Vintaging Model, and supports the agency’s decision to adjust the 

2009 allocations to further account for recovery and reclamation. EPA is finalizing an allowed amount of 

production and/or import that is almost 30 percent below the amounts finalized for 2012-2014 in the 2009 Final 

Rule. EPA believes that the amounts in this rulemaking will increase market incentives to properly manage and 

recover HCFC-22 while still allowing for servicing of existing HCFC-22 systems.

 One commenter is concerned with the panic over the HCFC-22 phaseout. They believe that full allocation 

should remain for this year. [0120]

EPA Response: See previous response in this section to Mondy Global.
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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 Carroll Area Development Corporation is not asking EPA to reverse its decision to eliminate HCFC-22 but 

rather do it at a more stable and consistent rate so that the market can adjust to the new reduced 

production levels in a managed way, reducing uncertainty in the marketplace and lessening the impact on 

rural Iowa employers like American Home Shield, their employees and customers. The commenter requests 

the EPA to reevaluate their proposed reduction schedule and introduce a more consistent reduction 

schedule of HCFC-22 of 11% each year from 2012-2014. [0159]

EPA Response: See previous response in this section to Mondy Global. In the 2009 Final Rule EPA issued HCFC22 consumption allowances such that the allocation decreased by about 4,000-5,000 MT each year from 2010-

2014. In this rulemaking EPA is unable to provide a constant reduction amount from year to year due to factors 

including the provision of recoupment allowances and a revised assessment of market needs.

 One air conditioning contractor opposes decreasing HCFC-22 consumption allowances relative to the 2009 

Final Rule. The contractor requests that EPA leave the present phaseout as planned. [0092]

EPA Response: See previous response in this section to Mondy Global. EPA is not adjusting the phaseout 

schedule but is allocating fewer HCFC-22 consumption allowances than in the 2009 Final Rule for the reasons 

discussed in the preamble.

 One commenter urges EPA to leave the schedule as it is. The commenter notes that the phaseout of HCFC22 was scheduled, and everyone in the industry had made plans to deal with it. [0115]

EPA Response: See previous response in this section to Mondy Global. EPA is not adjusting the phaseout 

schedule but is allocating fewer HCFC-22 consumption allowances than in the 2009 Final Rule for the reasons 

discussed in the preamble.

 NORDYNE does not support reducing the 2012 allocation relative to the 2009 Final Rule. NORDYNE believes 

due diligence and process was followed during the 2009 Final Rule writing and throughout the previous reassessment conducted for the last rule. [0089]

EPA Response: See previous response in this section to Mondy Global. The agency did follow due diligence and 

process during the development of the 2009 Final Rule; however, market conditions have changed drastically 

since that time. For this rulemaking, EPA conducted market research, which is presented in the Adjustment 

Memo, and took comment on the proposed allocation range. EPA again followed due diligence and process in 

this rulemaking, and carefully considered all submitted comments and data when finalizing the allocation 

amounts for 2012-2014.

 One commenter urges EPA to delay the phaseout of HCFC-22. [0112]

EPA Response: In 2015, the U.S. must reduce its HCFC production and consumption below 10 percent of its 

historic HCFC baseline under the Montreal Protocol on Substances that Deplete the Ozone Layer. By 2020, HCFC 

production and consumption must be below 0.5 percent of the historic baseline. EPA has previously accelerated 

the domestic HCFC phaseout schedule to reflect these reduction steps. Under long-established EPA regulations,

HCFC-22 may not be produced or imported at all in 2020 or beyond. Rather than create a drastic cut-off in 2015, 

the finalized allocation for 2012-2014 fosters the market transition necessary to prevent future disruptions.

 Goodman strongly opposes EPA’s latest Proposed Rule regarding HCFC-22 allowances. Goodman believes 

the proposed rule is contrary to EPA’s public commitment to a smooth transition to alternative refrigerants.

Goodman notes that EPA has stated repeatedly that it believes it is necessary to continue to permit the 

servicing of air-conditioning and refrigeration appliances manufactured prior to January 1, 2010, to ensure a 

smooth transition to non-ozone depleting alternatives. Goodman believes that EPA’s most recent proposal 

to reduce HCFC-22 allowances by 11 to 47 percent in 2012-2014 would have the very effect that EPA has 

stated that it wants to avoid. Goodman recognizes that the agency must address the Court decision in 

Arkema vs. EPA, but Goodman believes the proposed reduction in allowances of HCFC-22 for 2012-2014 

appears to go well beyond any result envisioned by the Court decision. [0084]
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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EPA Response: See previous response in this section to Mondy Global. Additionally, EPA’s assessment of the 

market as outlined in the preamble and in the adjustment memo indicates the allocation being established in 

this final rule will allow for servicing of existing systems both now and into the future and foster a smooth 

transition to non-ODS alternatives.

 Four similar comments were received from representatives of Johnstone Supply in opposition to the 

proposed decrease in HCFC-22 allocations. The commenters cite economic considerations as the reason for 

their opposition. [099, 0101, 0152, 0136]

One commenter specifically asks that EPA reconsiders the drastic cuts in R-22 to get the economy 

restarted and cost consumers less money. [0099]

One commenter believes that the proposed rulings have created chaos in their industry. They state that 

these decisions regarding the accelerated phaseout have been made without regard to the impact on

manufacturers, distributors, contractors, and consumers. They strongly recommend that EPA returns to 

the original plan for the phaseout of R-22. Because of uncertainty about what lies ahead, the 

commenter states that R-22 is being hoarded and cautiously sold with increased prices to ensure 

adequate inventory levels over time. [0101]

One commenter specifically states that significant reductions in the R-22 allocation will close businesses 

and create unfair hardships to the HVAC industry. They are concerned that EPA is not considering the 

people. [0152]

One commenter from Johnstone Supply requests that EPA leave the original reductions of R-22. The 

current proposed change has caused R-22 prices to increase and shortages in the industry. The 

commenter states that the majority of units in the field are still under warranty. They believe that the 

consumer does not have the money to replace these systems and they shouldn’t have to if the unit is 

under warranty. The commenter does not think anyone wants to raise prices during these hard 

economic times and the proposed change in HCFC-22 reductions is another example of why the 

American people have no faith in the government. [0136]

EPA Response: See previous response in this section to Mondy Global. Since the close of the comment period, 

EPA has heard from numerous stakeholders, including the late comments from the Food Marketing Institute,

that there is an ample supply of HCFC-22 to meet servicing need. EPA strives to provide an amount of HCFC-22 

consumption that allows system owners to service their systems while encouraging a gradual transition to nonODS alternatives. Additionally, signature of the final rule for 2012-2014 establishes market certainty, and allows 

more HCFC-22 in 2013 and 2014 than the minimum amount proposed. Providing recoupment allowances in 

addition to the allowances provided to meet estimated servicing need provides additional refrigerant that can 

be used to service equipment. To the extent that HCFC-22 prices rose due to regulatory uncertainty, publication 

of the final rule provides market stability through 2014.

 The Food Marketing Institute (FMI) comments that according to the UNEP Synthesis Report, “HFCs: A Critical 

Link in Protecting Climate and the Ozone Layer,” the Montreal Protocol is working as intended and 

expected. The existing allowance system provides adequate protection and the accelerated schedule in the 

proposed rule is not necessary. They state that the accelerated schedule will negatively impact the retail 

food industry by increasing the cost of HCFC-22 refrigerant and rushing retrofits.FMI urges the agency to 

revisit the proposed rule. [0157]

EPA Response: See previous responses in this section to Mondy Global and Johnstone Supply. EPA notes that it 

is not adjusting the phaseout schedule but is allocating fewer HCFC-22 consumption allowances than in the 2009 

Final Rule for the reasons discussed in the preamble. Additionally, this action should not rush retrofits, as all 

reports, including a later comment from FMI, indicate there is a significant supply of HCFC-22. There are 

numerous retrofit options available that can lead to improved energy efficiency and smaller leak rates. If 

supermarkets are considering retrofitting their existing system, EPA encourages them to review the GreenChill 
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

Page 49

Retrofit Guidelines available at www.epa.gov/greenchill. This report was originally introduced in 2008 and was 

recently updated. 

EPA received 47 comments opposed to decreasing HCFC-22 production, but that use “production” as a general 

term to cover production and import for U.S. use. Since new production (and import) in a given year is limited by 

the consumption allocation, EPA interprets these comments as opposition to the proposed decrease in 

consumption allowances. For clarity, the agency separated these comments from the previous 13 that are 

opposed to a decrease in consumption allowances even though EPA believes all 60 commenters share the same 

opinions about consumption.

 One commenter urges EPA not to limit the production of HCFC-22, as that will place an undue burden on 

consumers. [0155]

 34 commenters do not support the proposed decrease in production allowances. They stated that further 

production restrictions will cause an unnatural and unplanned shift in the market, thus resulting in 

unnecessary hardships to U.S. citizens. Further, they state that the cost of this plan will ultimately be the 

burden of U.S. citizens as they will pay inflated costs for HCFC-22 repairs. One commenter was concerned

about the impact this may have on senior citizens. [0090, 0142, 0100, 0096, 0093, 0129, 0139, 0128, 0138, 

0125, 0137, 0134, 0111, 0110, 0109, 0131, 0130, 0118, 0117, 0106, 0105, 0103, 0077, 0091, 0107, 0113, 

0119, 0123, 0122, 0121, 0144, 0135, 0097, 0095]

 One contractor urges EPA to leave the HCFC-22 phaseout plan in place with original production restrictions

and not to accelerate it. [0113]

 Four commenters urge EPA to leave the HCFC-22 phaseout plan in place with current production 

restrictions. [0094, 0127, 0135, 0097]

 Two commenters request EPA to allow the full 2012 allocation to produce that was originally planned. The 

commenter believes that EPA is not considering the large amount of HCFC-22 that was produced and 

purchased in the last quarter of 2010 that was not sold until 2011. [0102, 0153]

 Nine similar comments were received from representatives of Johnstone Supply in opposition to the 

proposed decrease in HCFC-22 allocations. All commenters cite economic hardship and burden on small 

businesses and citizens as the reason for their opposition. They ask that EPA considers that if HCFC-22 is not 

produced as planned, all HVAC businesses and their customers will suffer due to the large price increase in 

HCFC-22. Further, one of the commenters specifically states that due to tough economic times, customers 

are opting to repair and not replace their systems. The current shortage and the concurrent rise in price will 

cost a consumer approximately double to repair a unit. The commenter believes this will be very hard on 

lower income persons who cannot afford to switch to new alternatives and should not have to if their unit is 

still under warranty. [0140, 0145, 0146, 0151, 0153, 0132, 0124, 0095, 0098]

 Commenters from Johnstone Supply support the original planned ruling for HCFC-22 allocation in 2012. They 

comment that the total amount of HCFC-22 that was originally scheduled for production in 2012 should 

stand, and ask EPA to reconsider the proposed decrease in production. [0124, 0132, 0133, 0097]

EPA Response: See previous responses in this section, especially those to Mondy Global, Johnstone Supply, and 

The Food Marketing Institute. In regards to small business concerns, EPA is required under the Regulatory 

Flexibility Act to consider whether this rule will have a significant economic impact on a substantial number of 

small entities. This rule was determined to not have a significant impact on small business because it relieves the 

regulatory ban on production and import of HCFC-22 that would otherwise apply in the wake of the Court’s 

vacatur.
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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EPA disagrees with the two comments that assert that EPA did not consider what was produced and purchased 

in the last quarter of 2010 and sold for servicing in 2011. EPA understands that material produced in one year is 

often actually used in later years. Regardless of when the material was produced or sold, leaving 15 percent of 

allowances unused in 2010 indicates (1) there was enough material in inventory to cover the early part of 2011 

without additional production in 2010, (2) the servicing need in 2011 was anticipated to be significantly lower 

than anticipated in EPA’s original analysis, or (3) a combination of the two would result in lower necessity for 

production. All three scenarios, coupled with recent industry feedback, still indicate there is an ample supply of 

R-22 to service existing equipment. 

4.2 Amount of HCFC-22 production allowances relative to the 2009 Final Rule

4.2.1 Whether EPA can decouple the percentage of baseline allocated for production and

consumption

EPA received four comments on whether EPA can decouple production and consumption baselines. DuPont and 

NRDC were the only two commenters that explicitly addressed EPA’s statutory authority to decouple baseline 

percentages, and did so in their responses to both the Interim Final Rule and the proposed rule.

 DuPont comments on the statutory authority for decoupling. DuPont notes that CAA§ 605 requires that 

regulations phasing out class II substances need only implement restrictions on production and consumption 

that meet (or are greater than) those required by the statutory schedule provided within CAA Title VI and 

any acceleration of that schedule pursuant to the authority granted EPA in CAA § 606. DuPont notes that the 

agency has previously utilized its CAA § 606 authority to accelerate the statutory schedule contained in CAA 

§ 605. DuPont comments that the "schedule" as referenced in CAA § 605 is the "schedule" established in the 

CAA and through operation of the Montreal Protocol that is "applicable to the phaseout and termination of 

production of class II substances." The use of the term is constrained by this statutory context and does not 

encompass other schedules as may be defined in regulation or elsewhere. Thus, DuPont believes the "same 

schedule" as contained in the second sentence of CAA § 605(c) and as applied to consumption means no 

more than the schedule contained in the CAA and the schedule altered by EPA through subsequent action 

using the authority in CAA § 606. DuPont does not believe it means that production and consumption 

allowances are somehow tied to the same regulatory schedule established by EPA and must be identical in 

terms of number of allowances, but rather that production and consumption are tied to the same statutory 

and treaty schedule. DuPont comments that EPA thus has legal authority to allocate differing amounts of 

production and consumption allowances. DuPont supports EPA’s view that the second interpretation is most 

consistent with the statutory language and purpose, and believes that there is no statutory provision or 

Congressional intent for rules implemented under title VI of the CAA to disadvantage domestic HCFC 

producers to the advantage of offshore producers. DuPont comments that EPA may use its discretion under 

CAA §§ 605 and 606 to provide for increased domestic production, especially in the situation contemplated 

in the Proposed Rule where there will be no environmental disadvantage to allocating different levels of 

production and consumption allowances. [0020, 0070]

EPA Response: EPA is decoupling baseline percentages for production and consumption in the final rule. EPA 

responds fully to comments on decoupling, its statutory authority, and its policy decision n section IV.B.7. and 

IV.C.2. of the preamble to the final rule.

EPA received two comments from a group of environmental organizations that believe EPA does not have the 

statutory authority to decouple.

 NRDC, IGSD, and EIA do not support decoupling. The commenters believe that the language presented in 

CAA section 605(c) equates the quantity of consumption and production allowances and cannot be 

interpreted to allow more production allowances than consumption allowances in any given year. [0033, 

0067]
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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EPA Response: EPA is decoupling baseline percentages for production and consumption in the final rule. EPA 

responds fully to comments on decoupling, its statutory authority, and its policy decision in section IV.B.7. and 

IV.C.2. of the preamble to the final rule.

4.2.2 Whether EPA should provide the same percentage of baseline production as in the 2009 

Final Rule 

EPA received six comments supporting the issuance of more production than consumption allowances. Hudson 

and DuPont specifically express support for EPA’s proposed option 2, which would decouple baselines and 

provide the same percentage of the production baseline as in the 2009 Final Rule. This would have the effect of 

increasing the number of production allowances above the amount allocated in the 2009 Final Rule. Three 

comments do not support issuing more production than consumption allowances.

 Solvay comments that since the production of HCFCs requires both a production allowance and a 

consumption allowance, the availability of HCFC consumption allowances will be the limiting factor for the 

sale of HCFCs in the U.S. Solvay believes decoupling would be appropriate so that companies that consume 

HCFC production allowances can effectively compete in export markets where these products will otherwise 

be secured from other sources. Solvay notes that this decoupling becomes especially important as the cap in 

consumption allowances continues to decline in the U.S. in the years ahead, thereby reducing producers’ 

opportunities to sell these products domestically. [0064]

EPA Response: For 2013-14, the agency is providing the same percentage of the production baseline as in the 

2009 Final Rule for the reasons provided in section IV.C.2. of the preamble to the final rule. 

 Honeywell comments that if there are additional production allowances, then U.S. producers can export 

HCFC-22 for non-Article 5 Parties demand if they choose. Honeywell notes that this allows U.S. producers to 

compete with other global sources, will have no impact on domestic consumption, and is unlikely to add to 

global consumption. Honeywell notes that U.S. producers do not enjoy Clean Development Mechanism 

benefits for HFC-23 destruction allowed to Korean, Chinese and Indian manufacturers and so increased 

production will not likely cause a reduction in global pricing of HCFC-22 and will not contribute to increased 

consumption. Honeywell believes the U.S. should also continue to allow a separate allocation to U.S. 

producers for export to meet needs of Article 5 Parties to a level consistent with what is allowed under the 

restrictions imposed by the Montreal Protocol. [0082]

EPA Response: For 2013-14, the agency is providing the same percentage of the production baseline as in the 

2009 Final Rule for the reasons provided in section IV.C.2. of the preamble to the final rule. The agency is also 

continuing to allocate Article 5 allowances as provided in 40 CR 82.18. 

 MDA Manufacturing supports action to restore production allowance allocation to 38 percent of baseline in 

2011 and apply similarly proportionate levels to production allowance allocations for the years 2012-2014. 

They state that an increase in available production allowances will provide broader options for expending 

those consumption allowances through U.S. production vs. import of the associated R-22 material. [0030]

EPA Response: For 2013-14, the agency is providing the same percentage of the production baseline as in the 

2009 Final Rule for the reasons provided in section IV.C.2. of the preamble to the final rule.

 DuPont supports EPA’s proposed option 2 for “decoupling” production allowances. DuPont comments that 

not decoupling production allowances will only penalize domestic producers to the benefit of producers in 

other countries, which could have negative environmental consequences. 

DuPont notes that without decoupling, production allowances would be less than consumption 

allowances. Because making product requires both a production and a consumption allowance, to make 

product equivalent to consumption allowances, allowance holders must either import HCFC-22 or 

transfer additional production allowances to the U.S. DuPont notes that this situation is exacerbated by 

the fact that a significant quantity of production allowances is held by an entity that no longer has HCFC-
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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22 production facilities in the U.S. DuPont believes that if the EPA does not "decouple" HCFC-22 

production and consumption allowances, the ability of U.S. suppliers to export to Article 5 countries will 

be restricted, allowing offshore competitors to take market share from U.S. producers. 

DuPont further comments that to the extent that, as a result of decoupling, demand for HCFC-22 can be 

met by U.S. production rather than by facilities in other countries with higher pollutant emissions, e.g. 

higher HFC-23 emissions, then the environmental impact of decoupling is also positive. DuPont cites 

published analyses of increasing atmospheric concentrations ofHFC-23 that show increasing emissions 

of HFC-23 despite significant abatement in non-Article 5 countries and in Article 5 countries as a result 

of CDM projects. DuPont notes that this result suggests that newer HCFC-22 facilities are emitting 

significant quantities of HFC-23 and, in the absence of decoupling, it is probable that these facilities (that 

would produce the HCFC-22 that could not be sourced from the U.S. facilities) would produce more HFC23 emissions than U.S. facilities where HFC-23 emissions are largely abated. DuPont notes that reducing 

production allowances could therefore lead to increased global emissions ofHFC-23 and its 

corresponding negative effects. 

DuPont also comments that the net effect of decoupling is positive for the U.S. economy, to the extent 

that it results in preservation of existing markets or additional market opportunities. [0020,0070]

EPA Response: For 2013-14, the agency is providing the same percentage of the production baseline as in the 

2009 Final Rule for the reasons provided in section IV.C.2. of the preamble to the final rule.

 Hudson supports EPA’s option 2 for “decoupling” production allowances. Hudson comments that not 

decoupling production allowances would penalize domestic producers to the benefit of producers in other 

countries. [0071]

EPA Response: For 2013-14, the agency is providing the same percentage of the production baseline as in the 

2009 Final Rule for the reasons provided in section IV.C.2. of the preamble to the final rule.

Two commenters do not support providing more production than consumption allowances.

 NRDC, IGSD, and EIA do not support allocating an increment of production for export. They note that the 

Protocol and domestic regulations already provide a production allocation above and beyond U.S. 

production and consumption allocations to serve export markets. The commenters express that they cannot 

support a further production allocation to enable further exports, unless EPA is able to demonstrate with 

transparent data that the production allocation for basic domestic need is insufficient to serve foreign 

markets. NRDC, IGSD, and EIA strongly support reducing the existing allowance schedule by at least the 

maximum percentages proposed by EPA for 2012-2014. The commenters do not support the “high %” 

production allocation values in Table 3, but they note the production column reflects an annual production 

increment of approximately 5 percent of baseline over the consumption column. [0067, 0033]

EPA Response: For 2013-14, the agency is providing the same percentage of the production baseline as in the 

2009 Final Rule for the reasons provided in section IV.C.2. of the preamble to this final rule. EPA’s rationale for 

allowing an increase in production allowances relative to the 2009 Final Rule is discussed in the following section 

of this document (section 4.2.3).

 Arkema comments that EPA’s suggestion to leave the total HCFC-22 production allowance pool at its 2009 

level, or even increase it, is misaligned with EPA’s observed changes to the market since 2009. Evidence 

suggests that a reduction of production allowances is justified, rather than an increase. [0073]

EPA Response: For 2013-14, the agency is providing the same percentage of the production baseline as in the 

2009 Final Rule for the reasons provided in section IV.C.2. of the preamble to the final rule and section 4.2.3. of 

this document.
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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4.2.3 Whether an increase in the number of HCFC–22 production allowances would result in 

an increase in HCFC consumption and production

Eight comments addressed EPA’s request for comment on whether an increase in the number of HCC-22 

production allowances would result in an increase in HCFC consumption and production. Four comments stated 

that an increase in the number of HCFC-22 production allowances would result in an increase in HCFC 

consumption and production.

 NRDC, IGSD, and EIA express concern that allowing more production allocations than consumption 

allocations will only worsen the surplus of HCFC-22 on the global market, further decrease HCFC-22 prices, 

and discourage the adoption of leak prevention measures, reclamation, and adoption of alternatives in 

other countries. NRDC believes that increasing production allocations will not result in net environmental 

benefits. They state that increasing exports of HCFC-22 will only worsen the glut on the market and further 

depress prices. [0067, 0033]

EPA Response: The agency disagrees with the commenter’s assertion that increasing production allowances

increases the global supply of HCFC-22. See section IV.C.2. of the preamble to the final rule for a complete 

discussion of why EPA believes it is appropriate to allow an increase in the number of production allowances in 

2013 and 2014.

 Arkema comments that by increasing production allowances, EPA would be contributing to an increase in 

the use and release of HCFC-22. Even if all extra production allowances would be used for export, additional 

supplies in overseas markets would be available, while domestic supplies would be the same, which would 

drive down foreign prices and increase demand, and thus, environmental damage. According to the 

commenter, if HCFC-22 production allowances are increased, the ill-effects of oversupply will simply be 

exported. Arkema also comments that extra supplies of HCFC-22 globally would incentivize illegal activity. 

[0073]

EPA Response: See the above response to NRDC and the preamble to the final rule for a full discussion of this 

issue. EPA is aware that as the supply of HCFC-22 decreases in the U.S., the incentive for illegal activity increases, 

much as it did when CFCs were phased out in the 1990s. The primary reason why the potential for illegal imports 

exists is that not all countries are restricting the supply of HCFC-22 on the same schedule. The agency will 

continue to work with other government partners to catch and prevent illegal imports of HCFCs. EPA encourages 

all industry participants and private citizens to report any illicit activity. EPA takes enforcement of its regulations 

seriously, and encourages all industry players to maintain accurate records that document appropriate handling 

and use of refrigerant. To report a violation online, visit http://epa.gov/tips/.

 MDA Manufacturing states that the potential increase in production allowances for domestic use could 

result in a slight relative increase in U.S. R-22 production. However, all or part of the increase would be 

counterbalanced by a decrease in R-22 importation. MDA believes that it is unlikely that greater U.S. 

production of R-22 for export would result in a significant increase in R-22 exports. [0030]

EPA Response: This comment appears to be based on a scenario where a company with production allowances 

and a company with consumption allowances pair up to produce HCFC-22 domestically. EPA does not believe 

this is a likely scenario. See the above response to NRDC and the preamble to the final rule for a full discussion 

of EPA’s decision to finalize production option 2.

The following two comments noted that the quantity of consumption allowances is the limiting factor for U.S. 

consumption of HCFCs:

 DuPont notes that the quantity of consumption allowances allocated, not production allowances allocated, 

determines U.S. consumption of HCFCs. Therefore, implementation of option 2 for decoupling production 

allowances cannot increase U.S. consumption or impact the smooth U.S. phaseout of HCFC-22. 
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

Page 54

DuPont comments that an increase of production allowances could result in more U.S. production for 

both domestic use and for export. DuPont believes that because making product requires both a 

production and consumption allowance, to make a product equivalent to consumption allowances an 

allowance holder must either import HCFC-22 or transfer additional production allowances to the U.S.

DuPont notes that additional U.S. HCFC-22 production allowances that would result from 

implementation of option 2 will not result in greater worldwide production or consumption of HCFCs 

and, hence, will not have a negative impact on the global environment. Total HCFC-22 use is determined 

by market demand and/or consumption allocations, not the ability to produce. DuPont believes that 

additional U.S. HCFC-22 production allowances will only allow U.S. producers to meet existing demand

domestically and in Article 5 countries in accordance with the CAA and the Montreal Protocol. DuPont 

comments that additional allowances will not increase demand, but rather, afford U.S. producers the 

opportunity to compete to service existing demand. Further, DuPont believes that if EPA does not 

allocate additional HCFC-22 production allowances or worse yet, further decreases those production 

allowances, the ability of U.S. suppliers to export to developing country markets will be restricted, 

allowing offshore competitors to take market share from U.S. producers.

DuPont comments that additional U.S. HCFC-22 production for export will not result in greater 

worldwide production of HCFCs. DuPont believe that additional allowances will not serve to increase 

demand but merely help determine which global producers have an opportunity to compete to service 

that demand. [0070, 0020]

EPA Response: See the above response to NRDC and the preamble to the final rule for a full discussion of this 

issue.

 Solvay comments that since the production of HCFCs requires both a production allowance and a 

consumption allowance, the availability of HCFC consumption allowances will be the limiting factor for the 

sale of HCFCs in the U.S. As such, Solvay does not believe that increasing U.S. HCFC-22 production for export 

will lead to greater global HCFC-22 consumption than would otherwise take place. [0064, 0026]

EPA Response: See the above response to NRDC and the preamble to the final rule for a full discussion of this 

issue.

4.3 HCFC-142b consumption and production allowance allocations 

Four comments were received on HCFC-142b consumption and production allowance allocations, three in 

support of reducing allocation levels.

 DuPont comments that they support a reduction in calendar year production and consumption allowances 

for HCFC-142b. Lesser amounts of HCFC-142b than provided in the Proposed Rule are needed on a goingforward basis. DuPont urges EPA to further examine this issue with the possibility of phasing out this 

substance. DuPont notes that HCFC-142b is used only in blends to service old CFC equipment. By 2015, any 

CFC equipment still in service will be at least two decades old and replacement with new and more efficient 

equipment is a far better option than keeping the old inefficient equipment in operation. [0070]

EPA Response: EPA did not propose to decrease HCFC-142b allowances in this rulemaking. The agency assessed 

the need for the chemical in the 2009 Final Rule and will revisit the need for HCFC-142b for servicing during the 

rulemaking for the next regulatory period.

 Arkema agrees with EPA’s proposal to make 100 metric tons of HCFC-142b consumption allowances 

available each year from 2012-2014, especially since HCFC-142b continues to be a critical component of 

R409a used to service refrigeration equipment. For HCFC-142b, Arkema states that no increase to the 

amount of allowed production in both 2013 and 2014 is necessary. Further, the commenter states that the 

agency need only provide 69.8 metric tons of 142b production allowances in recoupment. [0073]
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

Page 55

EPA Response: EPA is providing 100 MT of HCFC-142b consumption allowances and approximately 463 MT of 

HCFC-142b production allowances, excluding recoupment, in 2012, 2013 and 2014. Similar to the rationale for

providing more HCFC-22 production allowances, EPA is providing a higher number of HCFC-142b production 

allowances.

 NRDC, IGSD, and EIA strongly support reducing the existing HCFC-142b production and consumption 

allowance schedule by at least the maximum percentages proposed by EPA for 2012-2014. [0067]

EPA Response: EPA is finalizing the same number of HCFC-142b allowances as proposed.

 Solvay states that EPA should not lower the HCFC-142b production allowances to compensate for any 

increase in total U.S. HCFC-22 production. [0026]

EPA Response: EPA is finalizing the same number of HCFC-142b allowances as proposed.

5. OTHER ISSUES

EPA received 72 comments concerning other issues associated with the Proposed Rule. Comments were in 

reference to six main topics: 

5.1 HCFC supply, price, and economic conditions

5.2 Providing allowances to reclaimers

5.3 Providing allowances to manufacturers of HCFC blends

5.4 Potential impacts of the proposed rule on small entities and consumers

5.5 Timely completion of the rule

5.6 Compliance and enforcement issues

Count Commenter Organization Document ID No

1 Michael Bleier Able Distributors EPA-HQ-OAR-2011-0354-0147

2 Charles McCrudden ACCA EPA-HQ-OAR-2011-0354-0081

3 Karim Amrane AHRI EPA-HQ-OAR-2011-0354-0072

4 John Tice APR Supply Co. EPA-HQ-OAR-2011-0354-0148

5 William J. Hamel Arkema Inc. EPA-HQ-OAR-2011-0354-0073

6 David Wallace AZ Refrigerant Abatement, Inc EPA-HQ-OAR-2011-0354-0053

7 Matthew Jahn Bay Area Refrigerant Recovery, Inc EPA-HQ-OAR-2011-0354-0080

8 Rick Boettcher Bettcher Enterprises, Inc EPA-HQ-OAR-2011-0354-0056

9 Kelli K. Williams Bryson Insurance EPA-HQ-OAR-2011-0354-0135

10 Jeff Moe

Center for Energy Efficiency and Sustainability, 

Ingersoll Rand EPA-HQ-OAR-2011-0354-0063

11 Rick Roland Certified Refrigerant Services Inc. EPA-HQ-OAR-2011-0354-0057

12 Don Maloney Coburn Supply Company, Inc. EPA-HQ-OAR-2011-0354-0149

13 Rich Dykstra Consolidated Refrigerant Reclaim EPA-HQ-OAR-2011-0354-0083

14 Joel K. French Coolgas, Inc. EPA-HQ-OAR-2011-0354-0088

15 M. J. Dermid Dermid Enterprises, LLC EPA-HQ-OAR-2011-0354-0113

16 Mack McFarland DuPont EPA-HQ-OAR-2011-0354-0070

17 John Haynes Express Recovery, Inc EPA-HQ-OAR-2011-0354-0075

18 Carl Grolle Golden Refrigerant EPA-HQ-OAR-2011-0354-0054

19 Gary L. Clark Goodman Global, Inc. EPA-HQ-OAR-2011-0354-0084

20 Jeff Greer Greer Holdings, LLC EPA-HQ-OAR-2011-0354-0052

21 RemTec International Group of EPA Certified ODS Reclaimers EPA-HQ-OAR-2011-0354-0085

22 Jerry T. Harrell Harrell's A/C & Heating Services EPA-HQ-OAR-2011-0354-0104
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

Page 56

Count Commenter Organization Document ID No

23 Jonathan Melchi

Heating, Air-Conditioning and Refrigeration 

Distributors International EPA-HQ-OAR-2011-0354-0069

24 Steven H. Bernhardt Honeywell EPA-HQ-OAR-2011-0354-0082

25 Dave Mann Houston Refrigerant Recovery, LLC EPA-HQ-OAR-2011-0354-0060

26 Stephen P. Mandracchia Hudson Technologies Company EPA-HQ-OAR-2011-0354-0071

27 David Murray HVAC Service Solutions EPA-HQ-OAR-2011-0354-0115

28 Brad Campagna Johnstone Supply EPA-HQ-OAR-2011-0354-0133

29 Dwayne Farbe Johnstone Supply EPA-HQ-OAR-2011-0354-0097

30 Bill Sciacca Johnstone Supply EPA-HQ-OAR-2011-0354-0095

31 Barry Tumminello Johnstone Supply EPA-HQ-OAR-2011-0354-0098

32 Joe Cardenas Johnstone Supply EPA-HQ-OAR-2011-0354-0124

33 Joey Larson Johnstone Supply EPA-HQ-OAR-2011-0354-0136

34 George Sexton Johnstone Supply EPA-HQ-OAR-2011-0354-0132

35 Tim and Noemi Frazee LA Refrigerant Recovery, Inc EPA-HQ-OAR-2011-0354-0051

36 Paul Metzler Lemoine Marine Refrigeration, Inc EPA-HQ-OAR-2011-0354-0127

37 Dwayne A. Mayeux Mayeux's A/C & Heating, Inc. EPA-HQ-OAR-2011-0354-0094

38 Dianne Mayeux Mayeux's A/C & Heating, Inc. EPA-HQ-OAR-2011-0354-0093

39 Peter M. Geosits Mexichem Fluor Inc. EPA-HQ-OAR-2011-0354-0066

40 Diran Yegparian Mondy Global, Inc. EPA-HQ-OAR-2011-0354-0055

41 Anonymous Private Citizen Comment EPA-HQ-OAR-2011-0354-0102

42 Anonymous Private Citizen Comment EPA-HQ-OAR-2011-0354-0112

43 B. Truse Private Citizen Comment EPA-HQ-OAR-2011-0354-0128

44 Warren Private Citizen Comment EPA-HQ-OAR-2011-0354-0143

45 E. E. Wellmeyer Private Citizen Comment EPA-HQ-OAR-2011-0354-0130

46 J. Welsh Private Citizen Comment EPA-HQ-OAR-2011-0354-0155

47

Cindy V. Chetti and 

Gregory Brown

National Multi Housing Council (NMHC) and 

National Apartment Association (NAA) EPA-HQ-OAR-2011-0354-0156

48 Maureen Beatty National Refrigerants, Inc. (NRI) EPA-HQ-OAR-2011-0354-0068

49 Michael Seabaugh NORDYNE EPA-HQ-OAR-2011-0354-0089

50 David Doniger Natural Resources Defense Council (NRDC) EPA-HQ-OAR-2011-0354-0067

51 David Andrew Perfect Score Technologies, LLC EPA-HQ-OAR-2011-0354-0150

52 Walt Baker Polar Technology EPA-HQ-OAR-2011-0354-0076

53 Jerry Dykstra Rapid Recovery Franchise Partners EPA-HQ-OAR-2011-0354-0086

54 John White Rhynard and White Enterprises, Inc. EPA-HQ-OAR-2011-0354-0058

55 Nick Thomas Rocky Mountain Refrigerant Abatement, LLC EPA-HQ-OAR-2011-0354-0059

56 Bruce MacMorran RSS Realtors EPA-HQ-OAR-2011-0354-0105

57 Don Magid Solvay Fluorides, LLC EPA-HQ-OAR-2011-0354-0064

58 Chan Ritchie Southeast Refrigerant Recovery, Inc. EPA-HQ-OAR-2011-0354-0074

59 Ray Diaz Sustainable Energy Solutions LLC EPA-HQ-OAR-2011-0354-0141

60 Timothy LeCoq T.L. Maintenance HVAC EPA-HQ-OAR-2011-0354-0092

61 Erik R. Lieberman Food Marketing Institute (FMI) EPA-HQ-OAR-2011-0354-0157

62 Michael Mulligan USA Refrigerants EPA-HQ-OAR-2010-1040-0021

63 John M. Batt Airgas, Inc. EPA-HQ-OAR-2010-1040-0022

64 Richard Marcus RemTec International EPA-HQ-OAR-2010-1040-0024

65 Carl Grolle Golden Refrigerant EPA-HQ-OAR-2010-1040-0025

66 Stephen Mandracchia Hudson Technologies EPA-HQ-OAR-2010-1040-0027

67 William J. Hamel Arkema Inc. EPA-HQ-OAR-2010-1040-0028

68 Pete Williams Williams & Associates EPA-HQ-OAR-2010-1040-0032

69 Milton J. Cuevas II ICOR International EPA-HQ-OAR-2010-1040-0031
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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Count Commenter Organization Document ID No

70 David Doniger Natural Resources Defense Council (NRDC) EPA-HQ-OAR-2010-1040-0033

71 Dave Mann Houston Refrigerant Recovery, LLC EPA-HQ-OAR-2010-1040-0060

72 Jim Gossett Carroll Area Development Corp. EPA-HQ-OAR-2010-1040-0159

5.1 HCFC supply, price, and economic conditions

EPA received 40 comments regarding HCFC supply, price, and economic conditions. Many are concerned with 

the impacts of the oversupply and low price of HCFC-22. In addition, five commenters have concerns regarding 

how the Proposed Rule relates to the current status of the U.S. economy.

 NRDC, IGSD, and EIA are concerned about the following negative effects of the oversupply and low price of 

HCFC-22. First, the commenters note that oversupply and low price is hurting the development of industrial 

capacity to reclaim and reuse HCFCs. Second, the commenters state that the glut of HCFC-22 is encouraging 

higher HCFC leakage by discouraging the adoption of leak prevention practices. NRDC, IGSD, and EIA believe 

that the situation is undermining compliance and enforcement of current anti-venting requirements to the 

detriment of the atmosphere and to the detriment of public health and the environment. According to the 

commenters, higher HCFC-22 prices will increase employment in the equipment service sector that will be 

paid for from revenue of recycle and recovery. Third, the oversupply and low price of HCFC-22 is hurting the 

development and adoption of alternatives and substitutes to HCFCs. The commenters note that the 

phaseout approach is undermined if the reduction in supply is so slow that prices do not rise, since this 

situation stymies the development and deployment of substitutes and alternatives. [0067, 0033]

EPA Response: EPA considers market conditions along with estimated servicing need when it determines 

allocations for HCFCs, and HCFC-22 in particular. Industry concern over low price and over-supply prompted the 

agency to conduct additional market analysis prior to issuing the proposed rule. As explained in the Adjustment 

Memo (included in the docket) and in sections IV.B.1-3. of the preamble to the final rule, market conditions are 

different now than they were during development of the 2009 Final Rule. EPA used its analysis to propose a 

reduction in HCFC-22 consumption allocations for 2012-2014, relative to the allocations in the 2009 Final Rule. A 

reduced consumption allocation increases the value of new and existing HCFC-22; as the value of HCFC-22

increases, so do the incentives to recover and reclaim the gas, and also to replace equipment that has reached 

the end of its life. Since production and import of HCFC-22 must cease by 2020, both of these actions must 

become more frequent between now and then to ensure a smooth transition out of HCFC-22 with minimal 

market disruption. The final allocation for 2012-2014 balances the needs of consumers to service their air 

conditioning and refrigeration systems while also incentivizing greater recovery and recycling of HCFC-22 and 

transition to non-ODS alternatives.

 Ingersoll Rand comments that the economy has been and remains weak and sluggish. This has had a 

dampening effect on demand for HCFC-22 and an expansion of the economy in the future will most certainly 

cause an increase in demand. An aggressive reduction in HCFC-22 levels coincident with a market rebound 

could have devastating effects on consumers of the product. [0063]

EPA Response: See previous response in this section to NRDC. One additional important point to note is that 

EPA has not decreased its estimate of HCFC-22 servicing need. In fact, the estimate presented in the Adjustment 

Memo prepared for this rulemaking is higher than the estimated need presented in the Servicing Tail Report, 

which was developed for the rulemaking resulting in the 2009 Final Rule. 

 Coolgas states that there has been and there currently is an oversupply of virgin HCFC-22 in the market that 

has suppressed recovery and reclamation. [0088]

EPA Response: See previous response in this section to NRDC and section IV.B.2. of the preamble.
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

Page 58

 Mexichem Fluor states that the 2010 allocations and reduction schedule for consumption allowances 

through 2014 resulted in a notable increase in market price for HCFC-22. [0066]

EPA Response: See previous response in this section to NRDC.

 NRI comments that a reduction in the supply of HCFC-22 production and import allocation will stimulate the 

recovery and reclamation of HCFC-22 installed in equipment. NRI states that the proposed reduction in the 

supply of newly manufactured HCFC-22 will provide reclaimers with the economic incentive necessary to 

make the collection and distillation of used refrigerant a viable business without adversely affecting the 

phaseout. [0068]

EPA Response: See previous response in this section to NRDC.

 LA Refrigerant Recovery, Inc and AZ Refrigerant Abatement, Inc both were in support of EPA’s proposed rule 

to further limit the production and importation of virgin HCFC-22 refrigerant. They state that if the supply 

does not decrease, the price will continue to remain low. Their greatest concern is that the value of 

reclaimed refrigerant is high enough to encourage compliance by the industry, which will only occur when 

the overall supply of HCFC-22 is significantly reduced. Both commenters note two factors that motivate 

customers to recover rather than vent HCFC-22:

• The first factor is that contractors do not believe that EPA will actually enforce the CAA Section 

608 regulations. Contractors are ignoring the regulations because they believe EPA has no 

interest in compliance.

• The second factor is that as long as it is less expensive to vent than to recover refrigerants, 

contractors have no financial incentive to recover. The contractors that are concerned about the 

negative environmental impacts of venting find themselves at a significant disadvantage in 

competitive bidding situations. [0051, 0053]

EPA Response: See previous response in this section to NRDC. Enforcement-related responses are covered in 

section 5.6 of this document.

 Certified Refrigerant Services, Inc. comments that the price of HCFC-22 is currently very soft for the 

following reasons:

• Excessive inventory, largely due to too much virgin product and too many import and 

production allocations.

• There is less demand for HCFC-22 due to the economic recession.

• Contractors are not using alternative refrigerants and they will not until HCFC-22 is either not 

available or too expensive.

• Enforcement prohibiting venting is virtually nonexistent. [0057]

EPA Response: See previous response in this section to NRDC. Enforcement-related responses are covered in 

section 5.6 of this document.

 One commenter stated that the present price levels are too low for contractors to recover the costs involved 

in EPA compliant recovery. Refrigerants that could be recovered are not being recovered because of the 

additional costs involved. There is no price incentive to recover used gas at the current time. [0075]

EPA Response: See previous response in this section to NRDC. Enforcement-related responses are covered in 

section 5.6 of this document.

 ACCA commented that the proposed rule has caused great uncertainty and prices to increase 200-300%. The 

price increase is paid by contractors who then pass costs along to consumers. ACCA also states that drycharged condensing units affect the demand for HCFC-22. [0081]

EPA Response: See previous response in this section to NRDC and responses to comments on dry-shipped 

condensing units in section 2.4 of this document. Additionally, any uncertainty caused by not having an 
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allocation at the beginning of 2012 is eliminated with publication of the final rule. The final rule also allows for 

an amount of consumption (i.e., production and import for U.S. use) that is above the minimum proposed 

allocation. 

 Hudson Technologies commented that reclamation is not viable with excess supplies of virgin refrigerants. 

The price to reclaim in 2011 was more than 20% higher than the suppressed price of virgin material. 

Reclaimers would need to reduce the buyback price to be competitive and this would result in less 

refrigerant being recovered. Reducing virgin availability will promote reclamation and ensure an adequate 

aftermarket supply of HCFC-22. They believe that recovery and reuse will not grow until the contractor 

performing the recovery has an economic incentive to perform the work. Hudson states that as long as there 

is ample supply of low-priced virgin refrigerants, the economics of vent and replace will prevail. Hudson 

encourages EPA to assess the impact of the current economic and industry conditions and information on its 

past assumptions on the dynamics and size of the market in future rulemakings. [0071, 0027]

EPA Response: See previous response in this section to NRDC. 

 Solvay comments that the viability of the reclamation process is linked to higher prices for competing virgin 

material. Solvay comments that too much virgin HCFC-22 on the market depresses demand for reclaimed or 

recycled HCFC-22. Solvay believes EPA must significantly reduce allowances in order to raise prices to levels 

that make EPA's preferred mode of reclaiming used HCFC-22 price competitive. The viability of the 

reclamation process is linked to higher prices for competing virgin material. By cutting allowances 

significantly, EPA can make the supply of product sourced from the reclaiming industry competitive with 

virgin production. [0064]

EPA Response: See previous response in this section to NRDC.

 A group of 20 EPA Certified ODS Reclaimers commented that the cost to reclaim recovered HCFC-22 from 

the field exceeds the cost of newly manufactured material. Processing the refrigerant in order to return it to 

ARI700 Standards is only a small part of the overall cost of recovery and reclaiming operations. In collecting 

the necessary amounts of R-22, reclaimers incur tremendous recovery related expenses in raw material 

purchasing, tanks, transportation and significant program expenses to entice refrigerant to be returned, i.e. 

advertising, promotions, seminars, education, and focused sales efforts. Additionally, once the used 

refrigerant arrives at the reclaimer facility, it must be identified, segregated, documented, transferred and 

held for processing. From there the recovered refrigerant is reclaimed using a number of steps including: 

filtration, distillation, oil separation, moisture removal, final blending, packaging, and documentation. This 

process is costly compared to the newly manufactured or imported virgin product production costs. [0085]

EPA Response: See previous response in this section to NRDC.

 A group of 20 EPA Certified ODS Reclaimers commented that in some cases, capacity was idle in 2010 and 

2011 due to oversupply of HCFC virgin products available to the market. They noted that it makes no 

economic sense to reclaim any product that could not be sold at a profit. As long as virgin material is 

available in quantities greater than demand, recovery will not be worth the effort for many contractors.

Significantly reducing HCFC allocations will rectify this situation and encourage reclamation to levels that are 

needed to avoid future disruptions in the market place. [0085]

EPA Response: See previous response in this section to NRDC.

 Rocky Mountain Refrigerant Abatement, Greer Holdings, Bettcher Enterprises, Rhynard and White 

Enterprises, Southeast Refrigerant Recovery, and Bay Area Refrigerant Recovery comment that at the 

present price level it is nearly impossible for any reclaimer to offer a buyback price that will meet the cost of 

recovery on most projects, much less a profit for the contractor. If the availability of HCFC-22 were to 

decrease, the value of reclaimed product would increase. The result would be more recoveries, more 

product for reclaimers, and far less refrigerant vented into the atmosphere. [0052, 0051, 0056, 0058, 0059,

0060, 0074, 0075, 0080]
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EPA Response: See previous response in this section to NRDC.

 One company states that in a recent week, their company had to more than double the price they charge 

customers for HCFC-22. Their cost went from $145/cylinder to $399/cylinder. The company believes this is a 

direct result of the government phaseout. The company urges EPA to consider the economic impact to US 

citizens from the phaseout. [0112]

EPA Response: See previous responses in this section to NRDC and ACCA. 

 Honeywell agrees with EPA that an over-supply of HCFC-22 exists and that the estimates of market demand 

upon which the 2009 Final Rule were based are out-dated. Honeywell believes the factors that have 

influenced these market dynamics include lower pricing of HCFC-22, built-up channel inventory, and 

increased installation of dry-ship condensing units, among other things. Honeywell agrees with EPA that the 

price of HCFC-22 must rise to a point to make recovery and reclamation economically attractive, and that 

limitations on supply will accomplish this goal. [0082]

EPA Response: See previous response in this section to NRDC.

 Bay Area Refrigerant Recovery comments that if the amount of HCFC-22 were to decrease, the value of the 

reclaimed product would almost certainly increase (as Bay Area Refrigerant Recovery has already observed 

in Northern California), reclaimers would be able to increase the buyback price paid to contractors, and 

contractors would find profit in selling their otherwise worthless, dirty refrigerants. [0080]

EPA Response: See previous response in this section to NRDC.

 Goodman notes that this year, as a result of EPA’s actions, refrigerant manufacturers have more than 

doubled the price of HCFC-22 for sale, and prices are likely to go even higher. [0084]

EPA Response: See previous responses in this section to NRDC and ACCA.

 One commenter notes that in the days following the announcement that HCFC-22 supplies may be reduced 

sooner than later, the price of HCFC-22 increased threefold, based simply on the speculation. [0127]

EPA Response: See previous responses in this section to NRDC and ACCA.

 Rapid Recovery Franchise Partners comment that at the present price levels, it is not economically feasible 

for a contractor to invest in the resources involved in recovery. It is far more profitable to simply vent 

refrigerants. Though the industry recognizes that such practices are illegal, the risk of prosecution is less 

than the perceived costs involved. While it is impossible to accurately measure the amount of refrigerant 

that is vented, the commenters’ many years of experience across the nation have convinced them that far 

more refrigerant is vented or lost through improper recoveries than is actually recovered for recycling or 

reclamation. [0086]

EPA Response: See previous response in this section to NRDC. Enforcement-related responses are covered in 

section 5.6 of this document.

 Consolidated comments that at the present price point for R-22, there is little or no financial incentive for 

refrigerant contractors to expend the time, energy, or equipment necessary to recover used product. As 

long as venting is the most cost effective way to deal with R-22, many contractors will refuse to recover. This 

will ultimately result in a dwindling supply of product available to reclaimers for processing. Consolidated 

believes the proposed decrease in allocations of production and importation of virgin R-22 should 

significantly address this situation. As the rule change suggests, decreasing the quantity of virgin R-22 will 

create an increase in the value of reclaimed R-22. This will in turn increase the value of the used gas that is 

the feedstock for the reclaim industry. Consolidated notes that as the value of recovered R-22 climbs, 

contractors and their technicians will be more likely to recover and sell these refrigerants. In this process, 

the industry will need to find ways to assure that contractors actually receive fair compensation for the 

refrigerants they recover. Consolidated believes the incentives will only work if everyone – contractors, 
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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wholesale houses, recovery companies, and reclaimers all share in the increase in value created by the 

reduction of available virgin R-22. 

Consolidated estimates that 80% of R-22 available for recovery and reclaim is found in AC systems 

containing less than 10 pounds of refrigerant. They believe it is unlikely that recovering R-22 will ever be 

cost-effective in small residential AC units, of which there are 115 million in the U.S. Consolidated notes 

that this subset represents approximately 600 million pounds of R-22 that has yet to be recovered. 

Consolidated comments that while there are significant quantities of R-22 for reclaim, those who handle 

such appliances will need to be motivated with more than higher prices for recovered refrigerant. [0083]

EPA Response: See previous response in this section to NRDC. Enforcement-related comments are included in 

section 5.6 of this document.

 Perfect Score Technologies, LLC comments that the recent recession in combination with low cost HCFC-22 

being imported decreased reclaim demand and profitability. However, with the recent increase in virgin 

HCFC-22 prices this month, profitability and stability have returned. With these fluctuations, they are 

concerned with maintaining a stable and growing demand for small reclaim businesses. According to the 

commenter, the percentage of mixed HCFC-22 will increase this year compared to prior years which will 

drive customers to alternative systems. This will complicate repairs for AC contractors. Therefore, having 

virgin HCFC-22 for blending will simplify the processing while lowering the cost of handling mixed 

refrigerant. [0150]

EPA Response: See previous response in this section to NRDC.

 The National Multi Housing Council (NMHC) and the National Apartment Association (NAA) are primarily 

concerned with the price and availability of HCFC-22, stating that several of their members have said that 

long-standing service contracts have been voided due to the agency’s action. They note that the price of the 

refrigerant has more than doubled and will likely increase until EPA establishes a final allocation figure.

These prices have large impacts on affordable housing providers. Property owners cannot access the capital 

to replace existing equipment in the near term without having planned in advance and neither can they pass 

the burden to their residents. Therefore, they call upon EPA to promulgate the final rule within 60 days to 

ease supply disruptions and facilitate routine maintenance on equipment before the nationwide peak 

demand for air conditioning. Further, they urge EPA to consider the impacts that the interim allocation final 

rule had on the economy at large, the housing sector, property owners, and residents. They state that 

establishing an allocation figure that provides for a steady supply of HCFC-22 to meet the servicing needs of 

existing equipment at an affordable price should be the agency’s goal. [0156]

NMHC further comments that the apartment industry is aware that R-22 refrigerant is being phased out 

and that after 2020, only recycled product will be available to service existing equipment. They are 

extremely concerned about the market distortions which are fueled by manufacturers who are 

concerned about the market price of R-22. NMHC comments that many apartment owners and 

managers are transitioning to higher performing equipment with alternative refrigerants, but that their 

industry’s experience with products offered as alternatives to R-22 has been mixed. Many owners have 

reported less than satisfactory results having made the costly switch to alternatives such as 410A. [0156]

EPA Response: See previous responses in this section to NRDC and ACCA. EPA also would be interested to learn 

more about the “less than satisfactory results” apartment owners have had with HFC-410A. 

 Golden Refrigerants asks that EPA reviews the current state of the HCFC market before issuing allocations

for 2012 and beyond. The amount of HCFC’s available in the marketplace is in excess of what is required for 

servicing existing units. The oversupply is causing the price of HCFC-22 to fall and leading to a lack of 

concern for recovery and reclamation. Due to the costs associated with changing refrigerant types, Golden 

Refrigerant is skeptical that a large percentage of HCFC-22 units would be replaced under natural attrition in 

the first 5 to 10 years of the phaseout. The commenter asks that EPA looks at the faulty change-out 
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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projections made for the CFC units and verify that any needed corrections were made to the HCFC 

projections. They suggest that EPA issue 2012 allowances as quickly as possible and review the market 

conditions, setting the allowances for the following years by September of the previous year. They are 

concerned that if the phaseout is ill-structured, it will have a negative effect on the industry and will bring a 

lot of criticism from outside parties. They state that the first shot at the allowances were off the mark and 

want to be certain that EPA has the numbers right this time. [0054]

EPA Response: See previous response in this section to NRDC.

 Houston Refrigerant Recovery comments that those contractors who are concerned about the environment 

find themselves at a significant disadvantage in competitive bidding situations, since it is more expensive to 

recover refrigerant than to vent it. The commenter notes that customers are very willing to recover when 

the value of the recovered refrigerant at least equals the cost of recovery. [0060]

EPA Response: See previous response in this section to NRDC.

 Bay Area Refrigerant Recovery comments that competition for refrigerant jobs is greater than at any time in 

recent history, and competitive advantage is everything today. [0080]

EPA Response: See previous response in this section to NRDC.

 One commenter notes that some people will profit from even a rumor of an unscheduled reduction in 

production. The commenter notes that the industry is shaky enough right now, without surprises. They 

believe that the reduction EPA is proposing will cause great financial turmoil. The commenter states that 

HCFC-22 prices have already jumped by 30%. [0115]

EPA Response: See previous responses in this section to NRDC and ACCA.

 The Food Marketing Institute (FMI) believes that the proposed rule will impose substantial burdens on food 

retailers and wholesalers. They state that because refrigeration equipment is among the most expensive in 

the store, increased costs for refrigeration operations can have a very significant impact on the bottom line.

FMI comments that the publication of the proposed rule has resulted in an enormous spike in the cost of 

HCFC-22 refrigerant. They believe that the price of HCFC-22 has increased by 200-300 percent since January 

and it is become difficult to find any R-22. FMI comments that if the proposed rule is not significantly 

changed, many retailers and wholesalers will face hundreds or thousands or millions of dollars of new costs.

According to FMI, one of the smaller retailers in the commercial refrigeration sector, has notified FMI that 

the uncertainty in production quotas for 2012 as a consequence of the proposed rule will likely increase 

operating costs by more than $500,000.

FMI comments that potential 2012 HCFC shortages will likely result in large sales disruptions caused by 

extended system downtimes or higher refrigerant prices due to unavailable HCFC refrigerants. They state 

that shortages could even result in higher leak rates due to emergency or expedited retrofits under nonideal conditions. Further, FMI believes that emergency retrofits will require additional capital thus negatively 

impacting available capital for retro-commissioning and planned system maintenance, resulting in higher 

energy usage and higher long-term operational costs. 

FMI further comments that the proposed rule could require retailers to retrofit many of their systems, which 

often costs $50,000 per system. They believe that these costs could easily range from $5-10 millions dollars 

depending on the size of the retailer. Further, they believe that expedited retrofits may be funded at the 

expense of other maintenance leak reduction initiatives and energy improvement projects. [0157]

EPA Response: See previous response in this section to NRDC and ACCA. In regards to potential shortages in 

2012, EPA has heard from numerous stakeholders, including a later comment from FMI, that there is an ample 

supply of HCFC-22 to meet servicing need.

 USA Refrigerants comments that the necessity for reclamation of R-22 is non-existent from a supply 

perspective. They believe it is far less expensive to purchase newly manufactured, packaged virgin material 
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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within the U.S. than it is to recover, consolidate, transport, reclaim, repackage, inventory, and redistribute R22. They state that currently there are no incentives to reclaim. Further, USA Refrigerants states that R-22 

replacements will not sell until their price point is lower than R-22. [0021]

EPA Response: See previous response in this section to NRDC.

 Airgas comments that the demand for HCFC-22 has changed from the estimate EPA used in 2008/9 and has 

continued to drop each year. Airgas believes that since the supply continued to exceed demand, pricing has 

continued to drop. They are concerned that the low pricing has kept some applications from switching to 

alternative refrigerants. Airgas further comments that individuals, contractors, and equipment 

manufacturers all believe that there will not be any supply shortage of HCFC-22 in the foreseeable future. 

Airgas believes that EPA’s allowance allocations made in the 2009 Final Rule have unexpectedly resulted in 

an ample supply of virgin HCFC-22 in the market. They state that EPA needs to make more aggressive 

reductions in supply of virgin material to spur a switch to alternative refrigerants and increased reclamation. 

[0022]

EPA Response: See previous response in this section to NRDC.

 RemTec International is concerned that there is too much R-22 being manufactured and sold on the market, 

which deflates the price of R-22 to levels that make it impossible for reclaimed R-22 to compete with newly 

manufactured material. They would like to see an incentive based system for end-users to reclaim. RemTec 

International believes that there is no need to amend the HCFC Pre-charged Appliance Rule unless the 

supply of R-22 is substantially reduced. [0024]

EPA Response: See previous response in this section to NRDC.

 Williams & Associates comments that no reclaim facility can process recovered product anywhere near the 

cost of virgin product. The commenter states that all indicators suggest that there is too much HCFC-22 

available in the U.S. market. They commend EPA’s aggressive approach to phase-down HCFCS. They believe 

that EPA must consider and adjust for the effects that over supply of HCFC-22 is having throughout the 

industry. [0032]

EPA Response: See previous response in this section to NRDC.

5.2 Providing allowances to reclaimers 

EPA received eight comments related to providing allowances to reclaimers, four in support and four in 

opposition.

Four commenters believe that EPA should issue allowances to reclaimers:

 Golden Refrigerant believes that significant allowances should be provided to reclaimers. The commenter 

suggests that allowances could be distributed to reclaimers based on an average of their past three years 

reported HCFC-22 reclamation totals or some other mechanism that directs the allowances in proportion to 

the actual amount of reclamation being provided by the entity to directly reward reclamation actions. To 

help prevent “gaming” the numbers, reclaimers could be required by EPA to submit (confidentially) both a 

transactional list of received HCFC-22 and production tracking documents showing yields and losses. In 

order to promote good practices, reclaimers that are not able to provide such data should not qualify for 

allowances. 

Golden Refrigerant suggests a pound of consumption allowance for each pound of average reclamation 

yield for HCFC-22, which is approximately 10% to 15% of the total allowances for 2012, and the 

percentage would increase as the phaseout progresses. The reclaimers would buy the material from the 

manufacturers and importers, which will provide a strong incentive for the manufacturers and other 

allowance holders to work cooperatively with the reclamation industry. As HCFC-22 becomes scarce, the 

commenter believes that reclaimers will likely distribute their product back first to the wholesalers and 
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

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contractors that provide the reclaimer with the recovered and used refrigerant. According to Golden 

Refrigerant, this will provide a strong incentive to the wholesalers and contractors to participate in good 

recovery practices since it will allow them greater access to supplies of HCFC-22 moving forward. 

Therefore, by providing allowances to reclaimers, all parties will have their best interests aligned with 

EPA in addition to strengthening the reclamation industry, fostering a competitive environment for 

reclamation, and leading to a smoother transition from HCFCs. [0054]

Golden Refrigerant notes that a large majority of the current reclaimers do not have access to any of the 

allocations and that most allowances are given to a few manufacturers, putting the reclamation industry 

in a weak position. The commenter provides a few examples of how manufacturers provide a difficult 

working environment for reclaimers: 

• The manufacturers exert pressure on wholesalers and contractors not to return their used 

refrigerants to a reclaimer, using their supply of virgin refrigerants as leverage.

• The manufacturers seldom work cooperatively with reclaimers and often expect reclamation 

work to be done for a low number (50 cents/lb) that would not allow the reinvesting of any 

profits into new technology.

• The manufacturers have threatened legal action against reclaimers attempting to work on 

newer patented blends.

• The manufacturers have refused to sell components or allow reclaimers a method to work with 

them to restore fractionated blends back to specification.

• The manufacturers have asked cylinder manufacturers not to sell pre-labeled DOT 39 cylinders 

for their blends to reclaimers.

• The manufacturers will offer cash bounties to wholesalers collecting their used refrigerant but 

will not offer any incentive to reclaimers to do the same.

• The manufacturers or their agents will buy an account back by offering cash for the used 

refrigerants higher than justified.

• The desire of manufacturers to promote their own best self-interest results in a difficult 

environment for a refrigerant reclaimer to prosper.

For these reasons, Golden Refrigerant believes that EPA should assign a portion of total pool of 

allowances to the reclaimers to build a strong reclamation industry that is profitable enough to 

make investments in the technology to fully reclaim HCFC refrigerants as well as other refrigerants. 

According to the commenter, EPA is only providing the main instrument of financial benefit to a 

portion of the needed participants. 

Further, the commenter believes it would be appropriate to subtract any stockpiles from the 

allowances of any of the allowance holders in their next years’ allowances. Allowance holders could 

choose whether allowances or stockpiles serve their best interests. This would result in a more 

predictable supply of material into the marketplace, which would also allow EPA to better 

understand the market to adjust allocations moving forward. 

Golden Refrigerant comments that they are also concerned about the demand for the reclaimed 

product. They state that the problem occurs when there is an oversupply in the market. Because 

reclaimers work on a fairly low margin, it is critical to sell quickly to recover expenses and fund the 

next round of purchases and production. When demand is low, reclaimers are forced to lower 

prices, which strain the business. Therefore, the commenter suggests that EPA cuts the allocations 

at least to the level that the allocations plus the available amount of material coming from 

reclamation is less than the demand amount for 2011. [0054, 0025]
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EPA Response: See section IV.B.4. of the preamble to the final rule and section 4.1 of this document for a full 

response to comments on this issue.

 USA Refrigerants asks that EPA gives reclaimers an opportunity and level the playing field. They comment 

that the acquisition price, whether imported or produced domestically, of R-22 for allocation holders has 

remained virtually unchanged, despite the years of touting price increases, increased manufacturing costs, 

shortages, etc. [0021]

EPA Response: See section IV.B.4. of the preamble to the final rule for a full response to comments on this issue.

 ICOR International believes that EPA’s refusal to establish reclamation credit allocation was bad policy. They 

state that EPA should provide each EPA certified reclaimer, currently not holding HCFC-22 allocation, HCFC22 consumption allocation equal to two times their previous year’s HCFC-22 recovery activity. They believe 

this process should begin in 2012, using 2011 reclamation data and continue until 2014. [0031]

EPA Response: See section IV.B.4. of the preamble to the final rule for a full response to comments on this issue.

EPA received four comments in opposition of issuing allowances to reclaimers:

 NRI does not believe that EPA should issue allowances to reclaimers. There is no precedent for EPA to do so.

The commenter states that advocating the blending of newly manufactured refrigerant with used refrigerant 

is irresponsible and will adversely affect the reputation of reclaimed refrigerant. Further, they state that it 

does not make economic sense to dilute the supply of newly manufactured refrigerant. NRI disagrees with 

EPA’s assertion that “reclaiming without significant blending further increases the costs of reclamation.” The 

commenter believes that if a reclaimer cannot properly remove impurities in used refrigerant, it should be 

sent to a reclaimer to destroy it. [0068]

EPA Response: See section IV.B.4. of the preamble to the final rule for a full response to comments on this issue.

 Honeywell does not support the allocation of allowances to reclaimers. According to the commenter, to 

provide allowances to reclaimers would give them the ability to contaminate virgin product with recovered 

(but not reclaimed) material and then sell this blend for use. The commenter believes that EPA should not 

encourage such actions, and that reclaimers need to upgrade recovered material to specification by 

reclamation, not by blending contaminants to a lower concentration through the use of virgin-22. 

Moreover, for several reasons, Honeywell does not believe that allocations of consumption allowances 

to reclaimers will have the effect of encouraging greater recycling and reclamation in the marketplace. 

First, Honeywell believes that sufficient reclamation capacity to meet greater future demand already 

exists today, and is aware of several reclaimers, including Honeywell, with capacity to accept large 

additional future volumes of reclamation material. Second, Honeywell notes that additional 

consumption allowances are not needed by reclaimers, because virgin HCFC-22 is not required to 

reclaim product. Reclamation of product can easily be accomplished by distillation processes that do not 

require the use of virgin HCFC-22. Finally, Honeywell states that allocating allowances to reclaimers 

creates a myriad of administrative and practical problems. EPA would face difficult questions relating to 

the amount of allowances to allocate, to whom it should allocate those allowances, and how to prevent 

the virgin HCFC-22 produced or imported with “Reclamation” allocation from simply being sold in the 

marketplace. Honeywell expresses concern that developing, vetting, and implementing these new 

procedures would only further delay the Final Rule. 

Honeywell believes the continued success of efforts to encourage more recycling and reclamation does 

not depend upon the capacity of the reclamation industry (of which there already is plenty), but instead 

depends upon incentives for users to recycle and send more product for reclamation. This has been 

accomplished by limiting the proposed number of HCFC-22 allowances to a volume that is well short of 

EPA demand estimates. Honeywell believes the EPA’s current proposal fully encourages recycling and 

reclamation and there is no need to allocate allowances to reclaimers. [0082]
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EPA Response: See section IV.B.4. of the preamble to the final rule for a full response to comments on this issue.

 DuPont does not support providing allowances to reclaimers. DuPont comments that it is clear from the 

definition of "refrigerant reclamation" contained in a report referenced in the Proposed Rule that blending 

used HCFC-22 with new HCFC-22 is not reclamation. DuPont comments that it is critical that the reclamation 

industry be ready for the 2020 elimination of HCFC-22 consumption by developing the infrastructure to 

reclaim HCFCs. DuPont believes that providing allowances to reclaimers would be counterproductive in 

achieving this objective. [0070]

EPA Response: See section IV.B.4. of the preamble to the final rule for a full response to comments on this issue.

 HARDI believes that refrigerant reclaimers should not be provided allowances. HARDI states it is supportive 

of refrigerant reclamation and maintains that the EPA should continue to support reclamation through 

distillation, which is a much more viable option in the long run and does not require allocation rights for 

refrigerant reclaimers. [0069]

EPA Response: See section IV.B.4. of the preamble to the final rule for a full response to comments on this issue.

 Arkema comments that new entrants to the HCFC market should not receive HCFC allowances. Arkema is 

not aware of any reason to believe that the market has prevented any party, including especially blenders, 

from acquiring unused allowances at a fair price. Given the assumption that the market is saturated with 

HCFC-22, there is no reason to suspect that allowance holders would rather keep and allow allowances to 

expire than to sell them. Arkema notes that it has not been in a position to sell allowances in 2010 and 2011. 

[0073]

EPA response: See section IV.B.4. of the preamble to the final rule for a full response to comments on this issue.

5.3 Providing allowances to manufacturers of HCFC blends

EPA received five comments on the provision of allowances to manufacturers of HCFC blends. Four commenters 

are opposed while one commenter, on the Interim Final Rule, would like EPA to consider redistribution of 

allowances to assist small HCFC blenders. 

 NRI does not believe that EPA should issue allowances to manufacturers of HCFC blends. The commenter 

notes EPA’s provision for new entrants when establishing the HCFC allocation system in 2003, and states 

that this provision plus EPA’s intent to accelerate the phaseout of HCFC-22 does not support a request to 

increase the overall allocation. [0068]

EPA Response: See section IV.B.4. of the preamble to the final rule for a full response to comments on this issue.

 Honeywell does not support providing allowances to manufacturers of HCFC blends. Blend preparers are not 

manufacturers and have no history of production or consumption. In Honeywell’s experience, these entities 

have been able to obtain HCFCs – in fact; Honeywell has been a supplier to parties involved in such blending 

operations. Honeywell believes blend preparers should experience the same market dynamics as the rest of 

the user community. [0082]

EPA Response: See section IV.B.4. of the preamble to the final rule for a full response to comments on this issue.

 DuPont does not support providing additional allowances to manufacturers of HCFC blends. DuPont notes 

that some manufacturers of HCFC blends have baseline allowances and would have HCFC allowances under 

any of the options in the Proposed Rule. For any other company, DuPont supports the agency's conclusion 

that "[c]ompanies can transfer allowances between companies and, on a temporary basis, between 

chemicals ... [and] can also purchase HCFCs at the wholesale price.” DuPont notes that others are not 

prevented from entering the market but can purchase HCFC baseline allowances in accordance with the 

established practices. [0070]

EPA Response: See section IV.B.4. of the preamble to the final rule for a full response to comments on this issue.
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 Arkema comments that new entrants to the HCFC market should not receive HCFC allowances. Arkema is 

not aware of any reason to believe that the market has prevented any party, including especially blenders, 

from acquiring unused allowances at a fair price. Given the assumption that the market is saturated with 

HCFC-22, there is no reason to suspect that allowance holders would rather keep and allow allowances to 

expire than to sell them. Arkema notes that it has not been in a position to sell allowances in 2010 and 2011. 

[0073]

EPA response: See section IV.B.4. of the preamble to the final rule for a full response to comments on this issue.

 ICOR International requests an updated recalibration of allowances, recognizing that millions of pounds of 

U.S. HCFC allowances are left unused every year. They believe that EPA’s current allocation system puts 

small firms that are producing HCFC refrigerant blends out of business. [0031]

EPA Response: See section IV.B.4. of the preamble to the final rule for a full response to comments on this issue.

5.4 Potential impacts of the proposed rule on small entities and consumers

EPA received 33 comments expressing concern about the impact of the proposed rule on small entities and 

consumers.

 Goodman comments that if the proposed rule is made final, American consumers would find it increasingly 

difficult and more expensive to service their existing HCFC-22 systems, and in many instances would be 

forced to purchase new, more expensive systems that use a different refrigerant. Goodman does not believe 

that EPA should promulgate a Final Rule on allowances that penalizes consumers who want to service 

existing equipment.

Goodman comments that EPA’s proposed rule is creating uncertainty and chaos within the industry, and 

increasing costs to American consumers. Goodman notes that the first few months of every year is the 

period during which air conditioning manufacturers ramp up production for the coming cooling season.

The increased uncertainty as to the availability of HCFC-22 is making the manufacturing process much 

more difficult to manage and speculative, which Goodman believes is inconsistent with EPA’s desire for 

a “smooth transition” away from HCFC-22. 

Goodman comments that American businesses that utilize HCFC-22 equipment, as well as consumers 

who need to service their existing HCFC-22 systems, will bear the brunt of these higher prices. Goodman 

notes that if industry stakeholders do not have adequate assurances regarding the availability of HCFC22 in 2012 and beyond, distributors and installers will increasingly recommend the installation of more 

costly air conditioning systems that utilize other refrigerants. Goodman believes that by accelerating the 

phase-down of HCFC-22 allowances, EPA’s proposed rule would make the repair and servicing of existing 

HCFC-22 systems much more expensive and difficult, which is at cross purposes with the interests of 

American consumers. [0084]

EPA Response: While EPA does not set the price, the agency is aware that the price of HCFC-22 has risen. As 

explained in the preambles to the proposed rule and the final rule, EPA proposed adjustments in the HCFC-22 

consumption allocation because of industry feedback and data. Ample existing supply and low price were not 

encouraging transition to alternatives or recovery and recycling of existing refrigerant. EPA notes that the 

phaseout schedule is already in place and that the agency is not altering it. This final rule simply prepares 

industry and consumers for the 2015 stepdown, and the complete HCFC-22 phaseout in 2020. EPA is striving to 

encourage a smooth transition out of HCFC-22 over time and believes that a smooth transition is supported by 

strong incentives to properly manage and recover refrigerant, which is less likely to happen when the value of 

the refrigerant is low. The allocation in the final rule balances the needs of consumers to service their air 

conditioning and refrigeration systems while also incentivizing greater recovery and recycling of HCFC-22 and 

transition to non-ODS alternatives. The continued allocation of allowances for production and import for 
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servicing existing equipment helps consumers and small businesses who cannot currently afford to buy new 

equipment. Additionally, the final rule relieves the regulatory uncertainty that some commenters feel was linked 

to price fluctuations, and the final rule also allows for an amount of consumption (i.e., production and import for 

U.S. use) that is above the minimum proposed allocation.

 Mayeaux’s A/C & Heating, Inc. commented that small businesses as well as end-users would be hurt by 

decreasing current production allowances. The commenter further states that decreasing current 

production allowances will result in an aggressive push of the market for R-410A. [0093]

EPA Response: See previous response in this section to Goodman.

 One commenter is concerned about the cost increases associated with further production restrictions. They 

state restrictions will cause hardships to low and middle class citizens and state “the small people need a 

break.” [0128]

EPA Response: See previous response in this section to Goodman.

 One commenter noted that further restrictions on HCFC-22 production will cause unnecessary hardships to 

citizen, as they pay inflated costs for R-22 repair. [0130]

EPA Response: See previous response in this section to Goodman.

 One commenter is concerned about the economic burden on landlords and tenants that may result from a 

decrease in current production allowances. The commenter asks that EPA considers how this action could 

increase the cost of housing. [0105]

EPA Response: See previous response in this section to Goodman.

 One commenter is concerned the price escalation [of HCFC-22] will eventually find its way to the end 

consumer, many who are elderly and on fixed incomes and can least afford to do without air conditioning or 

who can absorb unnecessary price escalations. [0159]

EPA Response: See previous response in this section to Goodman.

 Mondy Global Inc. states that reducing consumption allowances would threaten small businesses like them 

and is not warranted by the current market situation. [0055]

EPA Response: See previous response in this section to Goodman.

 One commenter stated that the economic realities of the past few years has been difficult for small 

businesses and that contractors who want to follow the law find themselves at a disadvantage by those who 

vent. Reducing R-22 availability would increase the value of reclaimed product, thus incentivizing recovery. 

[0075]

EPA Response: See previous response in this section to Goodman.

 HARDI states its belief that EPA erred in limiting the production and importation on the basis of a proposed 

rule and this could have a negative impact on small businesses. According to the commenter, there could be 

financial harm and devaluation of inventory for distributors who purchased HCFC-22 during the interim 

period if the allocation is higher than at the level prescribed in the non-enforcement letter. [0069]

EPA Response: See previous response in this section to Goodman. EPA notes that without the No Action 

Assurance (which allowed limited production and import based on the minimum amounts proposed), no import 

or production could have occurred. Without prejudging the outcome of the final rule, EPA’s No Action Assurance 

limited the extent of market disruption that could have otherwise occurred under a complete regulatory ban on 

production and import. 

 One commenter stated that a reduction in production levels will impose an undue burden on many working 

Americans who would have to go without AC. The commenter suggested a phaseout during better economic 

conditions. [0141]
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EPA Response: See previous response in this section to Goodman. Additionally, the rationale for the rule, as well 

as the requirements under the Montreal Protocol and Clean Air Act are discussed in sections III.A. and III.B. of 

the preamble to the final rule.

 Rocky Mountain Refrigerant Abatement, Greer Holdings, Rhynard and White Enterprises, Bettcher 

Enterprises, Southeast Refrigerant Recovery, and Bay Area Refrigerant Recovery comment that the 

economic realities of the past few years have been difficult for small businesses. Most commenters state 

that contractors who follow the law and recover HCFC-22 find themselves disadvantaged because venting 

refrigerant is easier and more profitable. The commenters encourage EPA to reduce consumption 

allowances to the fullest extent, to decrease the availability of HCFC-22 and increase the buyback price paid 

to contractors. [0052, 0056, 0058, 0059, 0074, 0075, 0080]

EPA Response: See previous response in this section to Goodman.

 One commenter urges EPA to consider the small businesses and consumers that will suffer with a large price 

increase on HCFC-22. [0102]

EPA Response: See previous response in this section to Goodman.

 One air conditioning contractor comments that an increased phaseout will create extreme hardship on all 

those with HCFC-22 systems since it is costly to change to a R-410a system due to the type of line sets, oil, 

etc. that must be changed when conversion to R-410a systems are installed. The contractor urges EPA to 

remember that R-410a components and HCFC-22 components are not interchangeable, and complete 

systems must be installed with new copper line sets as needed. The commenter notes that most people 

cannot pay for a simple HCFC-22 condenser change out, which costs significantly less than a complete 

system change-out conversion to R-410a. [0092]

EPA Response: See previous response in this section to Goodman.

 One commenter states that a reduction of the magnitude EPA is considering will cause great financial 

turmoil. Consumers have planned their change-over with the phaseout schedule as their guide. Some 

businesses have spent large sums of money on repairs of their HCFC-22 equipment with the phaseout

schedule in mind, to get the most from their existing equipment. [0115]

EPA Response: See previous response in this section to Goodman.

 One contractor noted that economic burdens are being placed on American households at rates never seen 

before, and any acceleration of the impending phase out of HCFC-22 would be disastrous to the critically 

fragile American economy because it would cause an unnatural and unplanned shift in the market. The 

commenter believes the cost will ultimately be borne by the citizens as they will pay inflated cost for HCFC22 repair. [0113]

EPA Response: See previous response in this section to Goodman.

 Three commenters state that further restrictions on HCFC-22 will cause an unnatural and unplanned shift in 

the market. The commenter believes the cost will ultimately be borne by citizens as they will pay inflated 

cost for HCFC-22 repair. [0135, 0094, 0097]

EPA Response: See previous response in this section to Goodman.

 One commenter states that running a small business is hard enough without increasing prices of 

consumable goods. [0094]

EPA Response: See previous response in this section to Goodman.

 Commenters from Johnstone Supply note that EPA’s proposed ruling to reduce the quantity of HCFC-22 for 

production and import in 2012 will only hurt small businesses and consumers. The commenters urge EPA to 

consider that if the total amount of HCFC-22 is not produced as planned, HVAC businesses and their 

customers will suffer due to a large price increase on HCFC-22. [0124, 0132, 0098]
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EPA Response: See previous response in this section to Goodman.

 One commenter from Johnstone Supply notes that this proposed rule not only affects distributors that have 

produced equipment, wholesalers inventorying stagnate product, customers buying power to allow a 

product at a lower cost, and the consumer having to absorb a high price in an economy that is steadily 

sinking. The commenter states that the whole U.S. is affected by this move. [0133]

EPA Response: See previous response in this section to Goodman.

 One commenter notes that HVAC is one of the greatest expenses a property owner has. The commenter 

states that raising the cost of maintenance will cause property expenses to increase, raising rents and 

further creating economic hardship on the ultimate consumer. [0155] 

EPA Response: See previous response in this section to Goodman.

 One company comments that the cost of the phaseout presents an additional hardship to people already 

struggling in the current economy. [0112]

EPA Response: See previous response in this section to Goodman.

 One commenter notes that the increase in price is being paid by the consumer, which seems unfair in 

today’s economy. The commenter believes homeowners will not be able to pay their air conditioning service 

bills because the fear of higher prices has driven the cost of HCFC-22 beyond reason. In the commercial 

market, decisions were made to retrofit or not based on the government’s published plans, and changing 

the plans overnight after years of notification of a set schedule unduly affects all business plans. The 

commenter believes further production restrictions will result in unnecessary hardships to citizens. [0127]

EPA Response: See previous response in this section to Goodman.

 Two commenters note that with the difficult economic times, many consumers are opting to repair and not 

replace their systems. The commenter states that many of the systems in use are under warranty, so the 

HCFC-22 will have to be replaced, and with the current shortage and the concurrent rise in price, the cost to 

a consumer has now doubled to repair a unit. The commenters do not want to raise prices in these 

economic times [0095, 0136]

EPA Response: See previous response in this section to Goodman.

 One commenter notes that reducing production of HCFC-22 will place an undue and perhaps unmeant 

burden on the consumer. The commenter notes that this will be an especially hard burden on lower income 

individuals who cannot afford to switch over to another refrigerant and should not have to if their unit is still 

under warranty [0095].

EPA Response: See previous response in this section to Goodman.

 One commenter is concerned with how the rulemaking will affect the lower and middle class U.S. citizens.

They state that after the ruling was made, the price of HCFC-22 greatly increased in just one day primarily 

affecting those who cannot afford to switch systems. They believe that EPA is disconnected with these 

citizens. [0143]

EPA Response: See previous response in this section to Goodman.

 One commenter suggested that Nu-22B be used to avoid an expensive change in systems for the consumer. 

In the commenter’s experience, the transition from HCFC-22 to R-410a has been very challenging in the field 

since a lot of citizens are not aware of the phaseout and therefore don’t understand why those in the HVAC 

industry have no choice to change refrigerants. Further, the commenter has concerns about the safety of R410a and the time it takes to service. The commenter also expresses concern about the welfare of citizens in 

warm climates and what would happen to them without AC, and suggests that environmental damage from 

refrigerants should not be the biggest of concerns. The commenter states that either more R-22 should be 

sold, or Nu-22B should be pushed as a replacement. [0104]
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EPA Response: See previous response in this section to Goodman. EPA’s SNAP program has approved numerous 

alternatives to HCFC-22 for this end use. A full list of approved alternatives is available at 

http://www.epa.gov/ozone/snap/refrigerants/index.html.

 ICOR International believes that the phase down total U.S. baseline HCFC production and consumption most 

benefited the legacy chemical producers. They state that the three companies that received approximately 

90% of the total HCFC allocation would use the extraordinary competitive advantage that the HCFC 

allocation rule gave them to put small businesses like ICOR out of business by denying them the components 

to make products, or effectively reclaim HCFC refrigerants. They point out that the three producers with the 

majority of allocation are not using all their allocation, but now refuse to trade. ICOR International is 

concerned that EPA did not allow flexibility to empower small refrigerant manufacturers. [0031]

EPA Response: See section IV.B.4. of the preamble to the final rule for the full response.

5.5 Timely completion of the rule

EPA received 18 comments related to timely completion of the rule. 

 NRI comments that EPA’s timing for releasing the proposed rule was a disservice to the industry that has 

worked tirelessly over the years with EPA to accomplish the mutually beneficial goal of protecting the ozone 

layer. [0068]

EPA Response: The agency recognizes the importance of regulatory certainty in order for companies to plan and 

be prepared for the eventual phaseout of HCFCs. The 2009 Final Rule covered HCFC allocations for 2010-2014, 

but was partially vacated by the D.C. Court of Appeals for the District of Columbia Circuit. In response to that 

partial vacatur, EPA worked as quickly as possible to issue the 2011 Interim Final Rule and the 2012-2014 Final

Rule, and hopes to establish allowances for 2015-2019 well before that regulatory period begins.

 Arkema comments that EPA has created market disruptions by changing the rules mid-stream, starting with 

the 2009 Final Rule. The IFR set allowance levels for 2011 that did not take effect until August of that year 

and the current rule is not expected until later 2012. Arkema states that these types of delays have 

increased cost and injected unnecessary uncertainty into the economy. They believe that by failing to re-set 

2012 allowances in a timely manner, EPA is denying to Solvay and Arkema the relief mandated by the D.C. 

Circuit. [0073, 0028]

EPA Response: See previous response in this section to NRI. EPA does not agree that the timing of this rule 

means it is denying Solvay and Arkema appropriate relief. Realizing that the final rule would be issued late, EPA 

allowed companies to produce and import at the lower end of the proposed range through No Action 

Assurance. That authorized amount was proportional to the baseline allowances which EPA established in the 

2011 Interim Final Rule, in direct response to the Court’s ruling. In addition, any costs or uncertainty associated 

with the timing of the 2012-14 rule fall equally on all allowance holders, not on Solvay and Arkema uniquely.

 ACCA comments that the proposed rule must be promulgated quickly to reduce the uncertainty in the 

market. ACCA urges EPA to send a signal to industry to communicate intentions before the summer season. 

[0081]

EPA Response: See previous response in this section to NRI.

 AHRI urges EPA to finalize the rulemaking as soon as feasible to avoid uncertainty and restore confidence in 

the marketplace. [0072]

EPA Response: See previous response in this section to NRI.

 While HARDI is supportive of EPA efforts in reducing HCFC-22, they are concerned that EPA’s delay in 

publishing the proposed rule has negatively impacted distributors and caused a great deal of confusion. The 

commenter recommends that in the future, EPA should consider extending the prior year’s allocation level if 
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the rulemaking for the next control period is delayed and pro-rate the allocations established in the new 

rule for remainder of the new control period once the rule is complete. 

HARDI states that there are concerns within its membership that EPA’s delay in publishing the proposed 

rule and delay in issuing non-enforcement letters has negatively impacted distributors. HARDI 

discourages EPA from further consideration of adjustments to caps or allocations established by this rule 

after its effective date. HARDI does not support retroactive enforcement actions. HARDI comments on 

the risk for market confusion due to the lateness of the rulemaking and encourages EPA to complete 

subsequent rulemakings prior to the control period which they are intended to govern.

Further, the commenter has concerns with the non-enforcement letter process. They question why 

there was such a delay in providing this letter to the producers and importers of HCFC-22. The 

commenter believes that this three week delay in providing the non-enforcement letter to producers 

and importers caused market uncertainty and should have been avoided. HARDI emphasizes that this 

delay has caused (and continues to cause) significant harm to many HARDI members. HARDI 

recommends that in the future, a posting in the Federal Register, followed by a communication to all 

stakeholders would suffice, noting that impacts are felt in the marketplace far beyond just the allocation 

holders. [0069] 

EPA Response: See previous response in this section to NRI. Additionally, EPA will keep HARDI’s comments in 

mind if future No Action Assurance letters are issued to authorize production and consumption in the absence 

of a final rule.

 Solvay comments that a timely decision by EPA to issue recoupment allowances and make other necessary 

adjustments will give all market participants sufficient notice that Solvay believes they were denied in 2010.

Solvay notes that EPA issued the Final Rule governing HCFC production and consumption for 2010-2014 on 

December 15, 2009, giving Solvay and customers less than two weeks to adjust to the loss of 90 percent of 

the allowances that the company had anticipated receiving. Solvay comments that a timely decision by EPA 

to issue recoupment allowances will provide the precise allowance shares to all participants as EPA originally 

intended to do over the life of the control period, and allow the market to function smoothly. [0064]

EPA Response: See previous response in this section to NRI.

 Two commenters request EPA to allow the full allocation to be produced for 2012 that was originally 

planned since changing the allocation at such late notice will put an unreasonable hardship on HVAC 

businesses and customers. [0102, 0098]

EPA Response: See previous response in this section to NRI.

 NORDYNE does not support reducing the 2012 allocation since 2012 has already started. NORDYNE notes 

that the possibility of reducing this allocation is already creating significant issues in the marketplace. Pricing 

has become extremely volatile and significant inventory concerns are commonly discussed. Manufacturers 

have already planned their production for 2012. NORDYNE believes that to change the rules mid-year is 

unfair, disruptive, and will create significant unnecessary burdens on the industry. [0089]

EPA Response: See previous response in this section to NRI. In addition, the court vacated the allocations. As a 

result, EPA is not changing an existing allocation but rather issuing a new allocation. 

 Goodman comments that this proposed rule is tantamount to changing the rules in the middle of the game 

as industry stakeholders prepare to meet the next scheduled phase-down of HCFC-22 in 2015. Goodman is 

disconcerted that EPA is now promulgating a rule for 2012 that will not provide allowances for HCFC-22 until 

well into calendar year 2012. Goodman notes that if last year’s experience is any guide, a final rule or 

interim final rule may not be published until the traditional cooling system is practically over. Goodman 

states that while EPA’s No Action Assurance letters have given refrigerant manufactures certainty that they 
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may permissibly produce specified quantities of HCFC-22, industry stakeholders already have seen the price 

of HCFC-22 double, and in the upcoming weeks and months, prices will potentially increase further. [0084]

EPA Response: See previous responses in this section to NRI and NORDYNE.

 Able Distributors, APR Supply Co. and Coburn Supply Company state their opposition to the proposed 2012 

allocation reduction since 2012 has already started. According to the commenters, the possibility of 

reducing this allocation has already created significant issues in the market place and created price volatility. 

The three companies comment that manufacturers have already planned their production for 2012 and 

regard a change in rules to be unfair, disruptive and will create unnecessary burdens. [0147, 0148, 0149]

EPA Response: See previous responses in this section to NRI and NORDYNE.

 One commenter noted that industry has already made plans and purchases according to the guidelines that 

were advertised. [0130]

EPA Response: See previous responses in this section to NRI and NORDYNE.

 Golden Refrigerant suggests that EPA issue 2012 allowances as quickly as possible and review the market 

conditions, setting the allowances for the following years by September of the previous year. [0054]

EPA Response: See previous response in this section to NRI.

 The National Multi Housing Council (NMHC) and the National Apartment Association (NAA) call upon EPA to 

promulgate the final rule within 60 days to ease supply disruptions and facilitate routine maintenance on 

equipment before the nationwide peak demand for air conditioning. [0156]

EPA Response: See previous response in this section to NRI.

 The Food Marketing Institute (FMI) states that lack of time to assess options will lead to suboptimal results.

Accelerated retrofits will likely result in higher energy usage as retailers are forced to retrofit without 

complete evaluation of all potential refrigerants. They believe that the pricing pressures imposed by the 

proposed rule will cause a rush to implement new and unproven technologies to reduce refrigerant charge.

This will likely result in additional emissions due to unproven technology (e.g., micro channel condenser 

leaks). [0157]

EPA Response: See previous response in this section to NRI as well as the previous response to FMI in section 

4.1 of this document.

 Hudson Technologies comments that further delay in the finalization of a final rule for subsequent control 

periods will create confusion and disruption in the industry, will adversely affect the market, and will likely 

further damage an already withering reclamation industry. [0027]

EPA Response: See previous response in this section to NRI.

5.6 Compliance and enforcement issues

EPA received 13 comments regarding compliance and enforcement of regulations, generally urging EPA to 

increase the level of enforcement for refrigerant recovery.

 Rapid Recovery Franchise Partners comment that if there is to be a significant reduction in venting and a 

corresponding increase in the amount of R-22 recovered and made available for reclamation, EPA will need 

to significantly increase both the level of enforcement of Section 608 of the CAA and the visibility of that 

enforcement. As the national refrigerant recovery experts, the commenters meet every day with HVAC and 

demolition contractors as well as recycling and disposal companies. The commenters hear two different 

perspectives from these companies. Those who are complying with EPA regulations, many of whom are 

Rapid Recovery customers, express frustration that they are at a significant competitive disadvantage when 

bidding against those companies who do not comply. They believe that increased enforcement will create a 

level playing field. On the other hand, those who are not presently in compliance, advise Rapid Recovery 
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that they have never been contacted by the EPA and they know of no one in their particular industry who 

has been. 

In the commenters’ experience there are no regular audits and often the commenters are told that even 

when violations have been reported to the EPA, there has been no follow up. The franchise partners of 

Rapid Recovery note, however, that in those few situations that some enforcement or even threat of 

enforcement has taken place, there has been immediate and wide-spread compliance for a time. The 

commenters believe that if EPA desires a significant increase in both compliance and additional 

recovered R-22, enforcement must be a significant part of the process. [0086]

EPA Response: EPA encourages all industry participants and private citizens to report any illicit activity. EPA 

takes enforcement of its regulations seriously, and encourages all industry players to maintain accurate records 

that document appropriate handling and use of refrigerant. To report a violation online, visit 

http://epa.gov/tips/. Additionally, EPA’s enforcement history of ODS cases can be found at 

http://www.epa.gov/ozone/enforce/index.html

 Certified Refrigerant Services, Inc. is concerned that participation in the reclaiming effort is taken too lightly 

and are not satisfied with the estimated 10% compliance with the regulations. Further, they state that 

money is the only real motivator for participation in the reclamation effort. [0057]

EPA Response: See previous response in this section to Rapid Recovery Franchise Partners. Additionally, see the 

response to NRDC in section 5.1 of this document.

 One commenter stated that enforcement is necessary for compliance with Section 608. Increased visibility 

of enforcement efforts may increase the level of reclamation. [0075]

EPA Response: See previous response in this section to Rapid Recovery Franchise Partners.

 Rocky Mountain Refrigerant Abatement notes that EPA should increase the level and visibility of its 

enforcement efforts so that contractors comply with EPA regulations to recover refrigerant. [0059]

EPA Response: See previous response in this section to Rapid Recovery Franchise Partners.

 LA Refrigerant Recovery, AZ Refrigerant Abatement, Rhynard and White Enterprises, and Houston 

Refrigerant Recovery, all comment that customers are best motivated to recover refrigerant by publicized 

enforcement. The commenter states that contractors do not believe EPA will enforce the CAA Section 608 

regulations, they have never been visited by the EPA, and they believe that no one cares about venting. The 

commenter notes that contractors are therefore ignoring the regulations. [0051, 0053, 0058, 0060]

EPA Response: See previous response in this section to Rapid Recovery Franchise Partners.

 NRDC, IGSD, and EIA believe that the over-supply and low price of virgin HCFC-22 is undermining compliance 

and enforcement of current anti-venting requirements to the detriment of the atmosphere and to the 

detriment of the public health and the environment. [0067] 

EPA Response: See previous response in this section to Rapid Recovery Franchise Partners.

 A group of 20 EPA Certified ODS Reclaimers appreciate EPA's desire to promote a viable recovery and 

reclamation industry. They comment that by reducing allocations, EPA and reclaimers have a joint 

opportunity to utilize the existing "Recovery and Reclamation Network", which is needed to meet the needs 

of2015 and beyond. To do this the EPA must help those who provide recovered refrigerants to reclaimers 

develop a "culture" of recovery for reclamation. The twenty certified refrigerant reclaimers note that EPA 

must enforce existing regulations, especially “no venting” rules. They comment that as a result of these 

efforts, a positive value for the recovered product will be established and maintained, not just in 2012, but 

throughout the phaseout period. [0085]

EPA Response: See previous response in this section to Rapid Recovery Franchise Partners.

 Bay Area Refrigerant Recovery comments that that any enforcement taken by the EPA has a significant 

impact on the industry and that the number of companies that recover refrigerants increases greatly. The 
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commenter believes that gentle reminders of the rules and the threat of enforcement would go a long way 

toward increasing the amount of recovered and subsequently reclaimed refrigerants. Bay Area Refrigerant 

Recovery urges the EPA to consider new and creative ways in which it might engage in appropriate 

enforcement. Bay Area Refrigerant Recovery would welcome the opportunity to discuss some ideas with 

those in the San Francisco office who are responsible for this important part of the process. [0080]

EPA Response: See previous response in this section to Rapid Recovery Franchise Partners. EPA is always 

interested in effective ways to improve compliance, and encourages the commenter to contact EPA 

headquarters to discuss ideas.

 Consolidated comments that there are three potential motivators for recovering refrigerant, the first of 

which is doing the right thing. The commenter believes a program similar to GreenChill that encourages 

government and industry partnerships that will recognize and reward good recovery practices, would lead to 

greater compliance and additional available recovered refrigerants. Consolidated continues that the second 

motivator is economic incentive (aggressive allotment adjustments which impact price will address this), and 

the third is enforcement by the EPA. Consolidated notes that it appears that the EPA does not have the 

resources necessary to police the industry. Until such time that contractors actually believe they risk 

enforcement and penalties, the only tangible incentive is the buyback they receive from reclamation and/or 

recovery companies. A letter from the EPA to stakeholders reminding them of the laws and penalties for 

violations would go a long way toward compliance. Consolidated believes publicized cases of enforcement 

on the average sized company would also result in compliance. Consolidated believes that EPA can publicize 

its work and enforcement through News Releases. Consolidated also believes that contractors in compliance 

are at a disadvantage contractors not in compliance and think enforcement would level the playing field. 

[0083]

EPA Response: See previous response in this section to Rapid Recovery Franchise Partners and Bay Area 

Refrigerant Recovery. The agency appreciates suggestions for encouraging better compliance and will consider 

ways it can improve compliance. EPA also lists all ODS enforcement cases at 

http://www.epa.gov/ozone/enforce/index.html.

 NRI agrees with EPA that refrigerant should be reclaimed using distillation and separation and encourages 

EPA to require third party certification of reclaimers so that consumers can have as much confidence in 

reclaimed refrigerant as they do newly manufactured refrigerant. [0068]

EPA Response: This comment is beyond the scope of this rulemaking. However, EPA will consider this comment

as it develops future regulations. Reclaimers are currently required to follow the certification provisions in 40 

CFR 82.164.

 Polar Technology believes that proper reclamation of R-22 will not occur because of the lack of 

enforcement. They state that technicians, contractors, and system owners do not fear that the failure to 

properly recover will be met with punishment; there are too many systems and technicians to monitor and 

hold accountable. Polar Technology cites California’s AB32 that, according to the commenter, was created 

based on the failure of the CAA. AB32 holds the system owner accountable for refrigerants in their control.

Without enforcement, there is no motivating reason for anyone to adhere to regulations. [0076]

EPA Response: See previous response in this section to Rapid Recovery Franchise Partners.

 Golden Refrigerant is concerned about where additional HCFC-22 that will be reclaimed will come from. The 

commenter believes additional HCFC-22 will come from increased compliance and increased retrofits. They 

believe that the majority of non-compliance comes from smaller heating and cooling contractors, smaller 

demolition contractors, and individuals because their prices are too low for legitimate contractors to match 

and they do not want to pay the cost or take the time to correctly recover the refrigerant. They suggest that 

EPA dramatically increases enforcement, or it is doubtful that there will be a dramatic increase in the 

returned refrigerant from this source. [0054]
Response to Comments on the 2012-2014 HCFC Allocation Rulemaking

Page 76

EPA Response: See previous response in this section to Rapid Recovery Franchise Partners.