REPLACE, CAPTURE, AND RECYCLE OZONE-DEPLETING SUBSTANCE SUBSTITUTES

Hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6) are compounds that are used as substitutes for ozone-depleting substances (ODS). The U.S. Climate Alliance’s roadmap on reducing short-lived climate pollutants (e.g., ODS substitutes) has identified that HFCs—which are used in air conditioning units, refrigeration systems, foams, aerosols, and other applications—are thousands of times more potent than CO2 and represent the fastest-growing source of greenhouse gas (GHG) emissions in the United States and globally. This is also true for Nevada. 

Replacing, capturing, and recycling ODS substitutes or other measures could reduce the usage of these compounds, thus ensuring healthy air while combating climate change. Coupled with efficiency opportunities in refrigeration and cooling, phasing down the use of HFCs and replacing them would deliver significant climate and energy efficiency benefits.

The U.S. Environmental Protection Agency (EPA) and various industries are working together to measure, manage, and reduce these emissions. An option for Nevada could be to increase reliance on healthier, less-harmful substitutes in partnership with the EPA. 

Greenhouse Gas Implications

Although an important component of modeling future GHG emissions under different policy scenarios, data about ODS substitute management and use within Nevada is not currently collected by the state. Rather, estimates of these emissions are modeled based on population, which is an imprecise extrapolation. However, absent other changes, the growing population alone would likely increase GHG emissions from ODS substitutes. 

Consequently, although it is clear that a reduction in GHG emissions would be achieved, and that this is an important target in order to achieve the state’s goals, the trajectory and timeline is unknown. However, given the projected increase, failure to address the emissions of ODS substitutes will compromise the state’s ability to meet GHG emissions-reduction targets and undermine other climate-mitigation policies. 

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Climate Justice

There are health benefits to reducing and ultimately eliminating ODS substitutes in homes and businesses. However, whether there is a broader suite of information that could help understand any impacts and benefits requires further research and coordination with Nevada’s communities.

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Integrated Economic Assessment

In Oregon, California, and Colorado—states that have adopted policies surrounding the reduction and/or elimination of ODS substitutes—each state has identified that additional funding and staff are required to conduct rulemaking, implement and enforce the restrictions, and provide ongoing reporting.

During Oregon’s 2020 session, HB 4024 B was introduced and passed prohibiting certain products that use or contain HFCs manufactured after a specific date from entering commerce into the state. In HB 4024, appropriations in the amount of $176,600 from the General Fund are allocated to the Department of Environmental Quality (DEQ) in order to conduct the rulemaking, implement and enforce restrictions, and provide ongoing reporting. In order to manage the rulemaking, establish use-restriction dates, and develop labeling and reporting requirements, DEQ will need one permanent full-time Operations & Policy Analyst 3 position (0.63 full-time equivalent (FTE)). Once the rules have been established, the position will be needed to manage and implement the ongoing reporting requirements.

In California, SB 1013 established the Fluorinated Gases Emission Reduction Incentive Program (FRIP) to phase out HFCs. The administrative costs associated with the ongoing development of engineering criteria and guidelines to assess and implement incentives for low-global-warming-potential (GWP) refrigerants, coordination of the program implementation, and evaluation of low-GWP refrigerants were estimated to be $355,000 in FY 2018–2019 and $353,000 in FY 2019–2020. The state’s Public Utilities Commission (PUC) estimates costs of $516,000 to $1.2 million to consider and develop a strategy for energy-efficiency programs to incorporate low-GWP refrigerants in equipment. In the 2019–2020 budget (AB 74, Budget Act of 2019) the California Air Resource Board (CARB) received $1 million to reduce emissions from the use of fluorinated refrigerants as directed by SB 1013.

Colorado’s proposed Regulation 22 Part B (HFC Rule) is based on a draft regulation that includes nearly all end-uses covered by the initial SNAP Rules. The Division anticipates the potential need for additional staff for enforcement of this rule. The state expects that the proposed regulation will cost $1.9 million per year.

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Implementation Feasibility

The State Environmental Commission (SEC) may need to adopt new regulations to require replacement, capture, and recycling, or other measures to reduce the use of ODS substitutes such as HFCs and PFCs. Colorado recently proposed a regulation to accomplish a similar purpose. Note that Oregon and California adopted new legislation, rather than a regulation, to prohibit or phase out HFCs or products that contain them. 

Through NRS 445B.210(5), the SEC has authority to “establish such requirements for the control of emissions as may be necessary to prevent, abate, or control air pollution.” The Commission may also “require elimination of devices or practices which cannot be reasonably allowed without generation of undue amounts of air contaminants” (NRS 445B.210(9)). In addition, the Commission “may cooperate with other governmental agencies, including other states and the federal government” regarding air pollution (NRS 445B.210(4)).

ODS substitutes such as HFCs and PFCs are likely “air contaminants” when discharged into the atmosphere, as defined in NRS 445B.110. As such, the SEC can likely establish that ODS substitutes in the outdoor air constitute “air pollution,” as defined in NRS 445B.115. They are present in the outdoor air in quantities and durations that, due to their high GWP, “may tend to . . . injure human health or welfare, animal or plant life or property; . . . interfere with scenic, esthetic and historic values of the State; and interfere with the enjoyment of life or property” (NRS 445B.115).

A brief preliminary federal preemption analysis indicates that federal law may not preempt Nevada laws that reduce the use of ODS substitutes, as long as Nevada’s requirements are more stringent than federal requirements. However, more research is necessary to confirm this. 

Section 116 of the Clean Air Act, 42 U.S.C. § 7416 (“Retention of State Authority”) states, with exceptions not relevant here, that nothing in the Clean Air Act “shall preclude or deny the right of any State . . . to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution.” Under Section 116, states may adopt emissions standards and limitations that are more stringent than standards or limitations in federally approved State Implementation Plans (SIPs). They may not, however, adopt standards or limitations that are less stringent (42 U.S.C. § 7416).

Section 116 applies to the Clean Air Act’s requirements for protecting the stratospheric ozone layer (42 U.S.C. § 7671q). This seems to imply that states may adopt more-stringent requirements for ODS substitutes than under the federal Clean Air Act.

Title VI of the federal Clean Air Act covers protection of stratospheric ozone. 42 U.S.C. §§ 7671-7671q; see also 42 C.F.R. Subpart G. In particular, Section 612 (“Safe Alternatives Policy”) governs safer alternatives for ODS. https://www.govinfo.gov/content/pkg/USCODE-2013-title42/html/USCODE-2013-title42-chap85-subchapVI-sec7671k.htm

A thorough analyses of the potential for federal preemption of state laws regarding ODS substitutes should be completed. 

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