February 2021

Regulatory Issues

Federal HFC Legislation
The U.S. Congress passed the COVID-19 Economic Relief Bill. Besides providing economic stimulus initiatives in response to the Coronavirus pandemic, this legislation grants the Federal government the authority to regulate the phase-down of the use of all hydrofluorocarbons (HFCs). The legislation also provides the U.S. Environmental Protection Agency (EPA) the ability to phase-down the production and consumption of HFCs. Section 103 of Division S of this legislation grants the EPA the power to regulate HFCs in a manner consistent with the Kigali Amendment to the Montreal Protocol. Remember, the U.S. Government has not signed the Kigali Amendment—yet!

The phase-down of HFCs per the Kigali Amendment to the Montreal Protocol is as follows:

2021–2023: 10% reduction
2024–2028: 40% reduction
2029–2033: 70% reduction
2034–2035: 80% reduction
2036–beyond: 85% reduction

The bill includes some provision such as:

• A petition process to determine a transition date for specific products.
• Five-year state pre-emption and allocation for specific products determined to be essential uses by Congress.
• After 2024, allows for phase-down to be slightly adjusted if quota is not used.
• Allows for exports to countries that don’t produce HFCs that are adhering to a similar phase-down.
• “Exchange value” is the term used for global warming potential (GWP).
• There is a petition process in order to gain an allocation of allowances for essential uses such as safety, availability of alternatives and technical issues.
• Determinations of essential uses will be good for five years and can be extended.

This new authority is critical to eventual ratification of the Kigali Amendment. Without this legislation, the Federal government would have lacked express authority to phase down HFCs. Such authority is a prerequisite for the Senate to consider the Kigali Amendment.

What does this mean to the aerosol industry? First, this will hopefully put a halt to all the State activities on this issue, especially if a petition is submitted to EPA for a transition.

Second, it brings in HFC-152a as one of 20 chemicals that is phased down based on GWP (which is low for HFC-152a). Remember, under the old EPA Significant New Alternatives Policy (SNAP) rule, HFC-152a was exempt. This will be something Industry will need to address.

Third, we will again start working with EPA to ensure our original essential uses are maintained.

Finally, Industry will need to navigate through the baseline consumption quotes and eventual phasedown quotas. More to come on this issue.

State HFC rules
As mentioned, State activity was busy last year. The National Aerosol Association (NAA) and the Household & Commercial Products Association (HCPA) have been following these State activities, which is an extremely time consuming process.

Since the EPA SNAP rule debacle, States have been adopting their own rules. Luckily, all States to date have maintained the original aerosol product exception list that existed in the original SNAP Rule 20 of 2015.

The current State activities and effective dates for aerosol propellants are:

• California Adopted Effective date 1/1/2019
• Colorado Adopted Effective date 1/1/2021
• Connecticut In progress
• Delaware Proposed Regulation Proposed effective date TBD
• Maryland Adopted Effective date 9/1/2021
• Massachusetts Proposed Regulation Proposed effective date 1/1/2021
• New Jersey In progress
• New York Adopted Effective 1/1/2021
• Pennsylvania In progress
• Rhode Island Proposed regulation Proposed Effective date 6/1/2021 (likely to change)
• Vermont Adopted Effective date 1/1/2021

• Virginia In progress
• Washington Effective (adopted to Effective date 1/1/2020 replace Emergency rule)

Updates will be provided as situations change.

The California Air Resources Board (CARB) is still developing amendments to its volatile organic compound (VOC) Consumer Products regulation. The rule development is in it last phase. Before Feb. 8, CARB staff will release its final draft proposal and Industry will have 45 days to comment. On Feb. 25–26, 2021, the CARB Executive Board will vote to approve these amendments. Therefore, if you have not followed this regulation for the last 18 months, you have fewer than 45 days to review the proposed changes and submit comments. SPRAY