[Federal Register: January 11, 2005 (Volume 70, Number 7)]
[Rules and Regulations]
[Page 1971-1993]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11ja05-12]
[[Page 1971]]
-----------------------------------------------------------------------
Part III
Environmental Protection Agency
-----------------------------------------------------------------------
40 CFR Part 82
Protection of Stratospheric Ozone: Leak Repair Requirements for
Appliances Using Substitute Refrigerants; Final Rule
[[Page 1972]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[FRL-7858-7]
RIN 2060-AM05
Protection of Stratospheric Ozone: Leak Repair Requirements for
Appliances Using Substitute Refrigerants
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is amending the rule
on mandatory leak repair of appliances, promulgated under section 608
of the Clean Air Act (CAA or Act), to clarify how the requirements of
section 608 extend to appliances using substitutes for
chlorofluorocarbon (CFC) and hydrochlorofluorocarbon (HCFC)
refrigerants. This final rule affects the owners and operators of
comfort cooling, commercial refrigeration, and industrial process
refrigeration (IPR) appliances with regard to leak repair provisions
promulgated under section 608 of the Act. Certain aspects of this
action will also affect Federal owners and operators of commercial and
comfort-cooling appliances normally containing more than 50 pounds of
refrigerant. This rule supplements a statutory and self-effectuating
prohibition on venting substitutes to the atmosphere that became
effective on November 15, 1995 (i.e., section 608(c)(2) of the Act).
EPA is amending the current leak repair requirements for refrigeration
and air-conditioning equipment (i.e., appliances) containing CFC and
HCFC refrigerants to accommodate the proliferation of new refrigerants
on the market. In addition to amending the leak repair requirements,
this final rule extends the leak repair provisions of section 608 to
appliances using substitutes consisting in whole or in part of a class
I or class II ozone-depleting substance (ODS).
DATES: This final rule is effective on March 14, 2005.
ADDRESSES: Materials related to this rulemaking are contained in EPA
Office of Air and Radiation (OAR) Docket OAR-2003-0167. Docket OAR-
2003-0167 is the electronic version of the legacy OAR Docket No. A-92-
01. All documents in the docket are listed in the docket index.
Although listed in the index, some information is not publicly
available, i.e., confidential business information (CBI) or other
information whose disclosure is restricted by statute. Publicly
available docket materials are available in hard copy at the OAR Docket
at Room B108, 1301 Constitution Ave., NW.; Washington, DC, 20460. This
Docket Facility is open from 8 a.m. to 5:30 p.m., Monday through
Friday, excluding legal holidays. The Docket telephone number is (202)
566-1742.
FOR FURTHER INFORMATION CONTACT: Information concerning this rulemaking
should be forwarded to Julius Banks; U.S. Environmental Protection
Agency; Global Programs Division-Stratospheric Program Implementation
Branch; Mail Code 6205-J; 1200 Pennsylvania Avenue, NW.; Washington, DC
20460. The Stratospheric Ozone Information Hotline (800-296-1996) and
the Ozone Web page, http://www.epa.gov/ozone, can also be reached for
further information.
SUPPLEMENTARY INFORMATION: The contents of this action's preamble are
listed in the following outline:
I. General Information
A. Does This Action Apply to Me?
B. How Can I Get Copies of Related Information?
1. Docket
2. Electronic Access
II. Overview
A. Section 608 of the Clean Air Act
B. Notice of Proposed Rulemaking (NPRM) Regarding Recycling of
Substitutes for CFC and HCFC Refrigerants
III. Final Rule
A. Overview
B. Definitions
1. Full Charge
2. Leak Rate
a. Comments on Option 1--Use of Annualizing Method
b. Comments on Option 2--Use of EPA's Rolling Average Method
c. Comments on Option 3--Use of the Method Yielding the Highest
Leak Rate
d. Comments on Option 4--Owners or Operators Leak Rate Method of
Choice
C. Required Practices for Leak Repair
1. Comfort Cooling Appliances
2. Commercial Refrigeration
3. Industrial Process Refrigeration (IPR)
4. Cross-sector Issues
5. Extension of Leak Repair Requirements to HFC and PFC
Appliances
6. Clarification of Leak Repair Requirements
a. Scenario 1
b. Scenario 2
c. Scenario 3
d. Scenario 4
e. Scenario 5
D. Recordkeeping for Leak Repair
1. Applicability to Substitutes
a. General Service and Repair Recordkeeping and Reporting
b. Extension of 30-day Repair Requirement
c. Notification Due to Failed Verification Test
d. Relief From the Obligation To Retrofit or Replace an
Appliance
e. Relief From 30-day Repair Requirement Due to Adoption of
Retrofit/Retirement Plan
f. Additional Time for Retirement or Retrofit
g. Omission of Purged Refrigerant From Leak Rate Calculations
2. Retrofit/Retire Using Lower Ozone-Depleting Potential (ODP)
Refrigerants
3. Minor Clarifications
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health & Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer Advancement Act
J. The Congressional Review Act
I. General Information
A. Does This Action Apply to Me?
Entities potentially regulated by this action include those who
own, operate, maintain, service, or repair comfort cooling, commercial
refrigeration, and industrial process refrigeration appliances.
Regulated entities include:
------------------------------------------------------------------------
Category Examples of regulated entities
------------------------------------------------------------------------
Industry.......................... Technicians who service, maintain,
repair, air-conditioning and
refrigeration equipment.
Owners and operators of comfort
cooling, commercial refrigeration,
and industrial process
refrigeration equipment.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated and
potentially affected by this action. Other types of entities not listed
in the table could also be affected. To determine whether your company
is regulated by this action, you should carefully examine the
applicability
[[Page 1973]]
criteria contained in section 608 of the CAA Amendments of 1990. The
applicability criteria are discussed below and in regulations published
on December 30, 1993 (58 FR 69638). If you have questions regarding the
applicability of this action to a particular entity, consult the person
listed in the preceding FOR FURTHER INFORMATION CONTACT section.
B. How Can I Get Copies of Related Information?
1. Docket
EPA has established an official public docket for this action at
OAR Docket ID No. OAR-2003-0167. The official public docket consists of
the documents specifically referenced in this action and other
information related to this action. Hard copies of documents related to
previous refrigerant recycling and emissions reduction rulemakings and
other actions may be found in legacy EPA Air Docket ID No. A-92-01. The
public docket does not include Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute. The
public docket is available for viewing at the Air and Radiation Docket
in the EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301
Constitution Ave., NW., Washington, DC. The EPA Docket Center Public
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Air and
Radiation Docket is (202) 566-1742. EPA may charge a reasonable fee for
copying docket materials.
2. Electronic Access
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, ``EPA Dockets.'' You
may use EPA Dockets at http://www.epa.gov/edocket to view public
comments, access the index listing of the contents of the official
public docket, and to access those documents in the public docket that
are available electronically. Once in the system, select ``search,''
then key in the appropriate docket identification number.
II. Overview
Effective November 15, 1995, section 608(c)(2) of the Act prohibits
the knowing venting, release, or disposal of any substitute for CFC and
HCFC refrigerants by any person maintaining, servicing, repairing, or
disposing of air-conditioning and refrigeration equipment. This
prohibition applies unless EPA determines that such venting, releasing,
or disposing does not pose a threat to the environment.
On June 11, 1998, EPA proposed (63 FR 32044) to strengthen the
existing leak repair requirements for commercial, comfort cooling, and
industrial process refrigeration (IPR) appliances containing CFCs and
HCFCs. Tightening of the leak rates was proposed because EPA believed
that manufacturer design changes have lowered achievable leak rates.
EPA also proposed to extend the leak repair requirements to appliances
using substitutes that the Agency did not propose to exempt from the
statutory venting prohibition (i.e., hydrofluorocarbon (HFC) and
perfluorocarbon (PFC) substitutes).
Today's final rule clarifies how the leak repair requirements apply
to substitutes for class I and class II ODSs. Today's final rule also
extends the leak repair requirements to appliances containing HFC
blends that contain an ODS. However, today's rule does not finalize the
proposals to tighten the existing leak repair trigger rates or extend
the leak repair requirements to substitutes that do not contain an ODS.
A. Section 608 of the Clean Air Act
Section 608 of the CAA requires EPA to establish a comprehensive
program to limit emissions of ozone-depleting refrigerants. Section 608
also prohibits the knowingly venting or otherwise knowingly release or
disposal of ozone-depleting refrigerants and their substitutes during
the maintenance, service, repair, or disposal of air-conditioning and
refrigeration appliances.
Section 608 is divided into three subsections. In brief, the first,
section 608(a), requires EPA to promulgate regulations to reduce the
use and emission of class I substances (i.e., CFCs, halons, carbon
tetrachloride, and methyl chloroform) and class II substances (HCFCs)
to the lowest achievable level, and to maximize the recycling of such
substances. Second, section 608(b) requires that the regulations
promulgated pursuant to subsection (a) contain requirements for the
safe disposal of class I and class II substances. Finally, section
608(c) establishes self-effectuating prohibitions on the knowingly
venting, release or disposal into the environment of any class I or
class II substances, and eventually their substitutes, during servicing
and disposal of air-conditioning or refrigeration appliances.
Section 608(a) provides EPA authority to promulgate the
requirements in today's rule. Section 608(a) requires EPA to promulgate
regulations regarding use and disposal of class I and II substances to
``reduce the use and emission of such substances to the lowest
achievable level'' and ``maximize the recapture and recycling of such
substances.'' Section 608(a) further provides that ``such regulations
may include requirements to use alternative substances (including
substances which are not class I or class II substances) * * * or to
promote the use of safe alternatives pursuant to section [612] or any
combination of the foregoing'' EPA's authority to promulgate
regulations regarding use of class I and II substances (including
requirements to use alternatives) is sufficiently broad to include
requirements on how to use alternatives.
Section 608(c) provides in paragraph (1) that, effective July 1,
1992, it is ``unlawful for any person, in the course of maintaining,
servicing, repairing, or disposing of an appliance or industrial
process refrigeration, to knowingly vent or otherwise knowingly release
or dispose of any class I or class II substance used as a refrigerant
in such appliance (or industrial process refrigeration) in a manner
which permits such substance to enter the environment.'' The statute
exempts from this prohibition ``[d]e minimis releases associated with
good faith attempts to recapture and recycle or safely dispose'' of a
substance. To implement and enforce the venting prohibitions of this
section, EPA through its regulations interprets releases to meet the
criteria for exempted de minimis releases when they occur while the
recycling and recovery requirements of sections 608 and 609 regulations
are followed (Sec. 82.154(a)).
EPA is promulgating leak repair regulations to implement and
clarify the requirements of section 608(c)(2), which extends the
prohibition on venting to substitutes for CFC and HCFC refrigerants.
These regulations also carry out its mandate under section 608(a) to
minimize emissions of ozone-depleting substances to the lowest
achievable level.
B. Notice of Proposed Rulemaking (NPRM) Regarding Recycling of
Substitutes for CFC and HCFC Refrigerants
On June 11, 1998, EPA published an NPRM (63 FR 32044) outlining
requirements for substitutes for CFC and HCFC refrigerants. In that
notice, EPA proposed regulations under section 608 of the Act to amend
the leak repair requirements and reporting and recordkeeping
requirements of 40 CFR part 82, subpart F (promulgated under section
608 of the Act).
[[Page 1974]]
In the NPRM, EPA proposed to extend the leak repair requirements
for ozone-depleting CFC and HCFC refrigerants to substitutes including
pure and blended HFC and PFC substitutes. The proposal would have
required owners or operators of appliances with substitute refrigerant
charges greater than 50 pounds to repair leaks, and in some cases
retrofit or replace appliances, when the applicable annual leak repair
rate was exceeded. Based on improvements in equipment design and
maintenance that have reduced leak rates, EPA also proposed to reduce
the maximum allowable leak rates for appliances containing more than 50
pounds of refrigerant. The proposal would have also extended the
proposed lower leak rate to appliances using substitutes.
The NPRM asked for public comment on the Agency's proposals and on
the rationale behind them. The Agency received 167 public comment
letters (comments) in response to all aspects of the NPRM. In general,
most commenters recognized the need for mandatory recovery of
substitutes in order to help protect the ozone layer and to provide a
source of refrigerant to service existing capital equipment after the
phaseout of CFC and HCFC refrigerant production is complete. The
majority of commenters believed that the proposed amendments would
clarify the refrigerant regulations, but many expressed concerns over
the regulation of refrigerants that do not deplete the ozone layer.
Today's final rule addresses the public comments received in
response to the proposed rule as they relate to the leak repair
requirements. Other aspects of the final rule, specifically, the
applicability of the venting prohibition and the refrigerant sales
restriction were addressed in a separate final rulemaking (69 FR 11946;
March 12, 2004). The proposed requirements for the certification of
refrigerant recovery/recycling equipment will be addressed in a
separate rulemaking.
III. Final Rule
A. Overview
On March 12, 2004 (69 FR 11946), EPA published a final rule
extending a number of the required practices at Sec. 82.156 to
substitutes consisting of an ODS. These changes were intended to
accommodate the growing number of refrigerants, including newer blended
HFC/HCFC substitutes that are subject to the regulations because they
consist of a class II ODS. Such changes included the adoption of
evacuation requirements based solely on the saturation pressures of
refrigerants, the requirement for service apertures on appliances, and
mandatory certification of service technicians.
In this rule, EPA did not finalize the proposal to extend all of
the regulations concerning emissions reduction of CFC and HCFC
refrigerants, at 40 CFR part 82, subpart F, to pure HFC and PFC
substitutes. The rule did not mandate any of the following proposed
requirements from the NPRM: a sales restriction on HFC or PFC
substitutes that do not consist of an ODS; specific evacuation levels
for servicing appliances containing HFC or PFC substitutes that do not
consist of an ODS; certification of recycling and recovery equipment
intended for use with appliances containing HFC or PFC substitutes that
do not consist of an ODS; certification of technicians who maintain,
service, or repair appliances containing HFC or PFC substitutes that do
not consist of an ODS; reclamation requirements for used HFC or PFC
substitutes that do not consist of an ODS; certification of refrigerant
reclaimers who reclaim only HFC or PFC substitutes that do not consist
of an ODS; or leak repair requirements for appliances containing more
than 50 pounds of HFC or PFC substitutes that do not consist of an ODS.
Today's final rule amends the leak repair regulations at subpart F
covering CFC and HCFC refrigerants, and extends these requirements to
owners or operators of appliances containing substitutes that consist
of a class I or class II ODS. EPA is finalizing the proposed amendments
to the leak repair requirements at Sec. 82.156(i), the associated
recordkeeping provisions at Sec. 82.166(n) and (o), the definition of
``full charge'' at Sec. 82.152; and adding a definition for ``leak
rate'' at Sec. 82.152. EPA also describes compliance scenarios to
address inquiries concerning whether or not leaks that occur after
repairs have been completed and all applicable verification tests have
been successfully performed are considered a new leak occurrence for
the appliance.
EPA is not finalizing the proposal to extend the leak repair
requirements to owners or operators of appliances using HFC or PFC
substitutes that do not contain a class I or class II ODS. The Agency
is not finalizing the proposal (63 FR 32066; June 11, 1998) to lower
the permissible leak rates for air-conditioning and refrigeration
appliances containing more than 50 pounds of an ODS refrigerant or to
extend these requirements to appliances using HFC and PFC substitutes.
B. Definitions
1. Full Charge
Compliance with the leak repair requirements requires calculating
both the full charge of the appliance and the leak rate. EPA has
previously defined full charge at Sec. 82.152 as the amount of
refrigerant required for normal operating characteristics and
conditions of the appliance as determined by using one or a combination
of the four methods specified at Sec. 82.152. In the NPRM, EPA
proposed to eliminate the phrase ``for the purposes of Sec.
82.156(i)'' and the word ``all'' from paragraph (2) in the definition
of full charge at Sec. 82.152.
EPA did not receive any comments concerning the removal of the
phrase ``for the purposes of Sec. 82.156(i)'' and the word ``all''
from paragraph (2) in the definition of full charge at Sec. 82.152.
EPA did receive comments on the definition of ``full charge'' that were
outside of the scope of the proposed changes.
EPA received no adverse comments to the proposed editorial change;
therefore, EPA is finalizing the proposal to eliminate the phrase ``for
the purposes of Sec. 82.156(i)'' and the word ``all'' from paragraph
(2) in the definition of full charge at Sec. 82.152, because the term
and the phrase are implicit in that language. EPA believes that these
changes will improve the readability of the provision by eliminating
redundancy.
The NPRM did not propose to alter the means by which the owner or
operator could determine the full charge of the appliance. The edits
were proposed to add clarity to the definition without changing the
means by which ``full charge'' can be determined. Owners or operators
of appliances are still required to use one or a combination of the
four methods to determine the full charge of appliances. Full charge
means the amount of refrigerant required for normal operating
characteristics and conditions of the appliance as determined by using
one of the following four methods or a combination of one of the
following four methods:
(1) The equipment manufacturers' determination of the correct full
charge for the equipment;
(2) Determining the full charge by appropriate calculations based
on component sizes, density of refrigerant, volume of piping, and all
other relevant considerations;
(3) The use of actual measurements of the amount of refrigerant
added or evacuated from the appliance; and/or
(4) The use of an established range based on the best available
data, regarding the normal operating characteristics and conditions for
the
[[Page 1975]]
appliance, where the midpoint of the range will serve as the full
charge, and where records are maintained in accordance with Sec.
82.166(q).
Hence EPA has provided flexibility in determining the full charge
for appliances under ``normal operating characteristics.'' The onus is
on the owner or operator of the appliance to determine the full charge
by using one or a combination of the four methods listed in the
definition of full charge at Sec. 82.152. The leak rate then
determines what actions are required by the appliance owner or operator
in order to remain in compliance with the leak repair requirements of
Sec. 82.156.
2. Leak Rate
EPA has not previously promulgated a formal definition for leak
rate. In the NPRM, EPA proposed to define leak rate for the purposes of
applying leak repair requirements in Sec. 82.156(i) for industrial
process refrigeration, comfort cooling and commercial appliances. EPA
proposed to add a definition in the regulations for clarity, and to
address some of the issues raised by the regulated community concerning
calculating leak rates in order to comply with the leak repair
requirements contained in Sec. 82.156(i).
EPA and the Chemical Manufacturers' Association (CMA) jointly
issued a compliance guide for leak repair in October 1995. That guide,
known as the Compliance Guidance for Industrial Process Refrigeration
Leak Repair Regulations Under Section 608 of the Clean Air Act
(Compliance Guidance), includes a section on calculating leak rates.
The Compliance Guidance states that each time the owner or operator
adds refrigerant to an appliance normally containing 50 pounds or more
of refrigerant, the owner or operator should promptly calculate the
leak rate to ensure that the appliance is not leaking at a rate that
exceeds the applicable allowable leak rate. If the amount of
refrigerant added indicates that the leak rate for the appliance is
above the applicable allowable leak rate, the owner or operator must
perform corrective action by repairing leaks, such that appliances do
not continue to leak above the applicable leak rate, retrofitting the
appliance, or retiring \1\ the appliance in accordance with the
requirements of Sec. 82.156(i).
---------------------------------------------------------------------------
\1\ EPA considers retirement of an appliance as an action to
permanently remove the appliance from operation.
---------------------------------------------------------------------------
The Compliance Guidance specifically mentions two methods for
calculating leak rates. The first method is referred to as the
``annualizing method,'' because it takes the quantity of refrigerant
(percentage of charge) lost between charges and scales it up or down to
calculate the quantity that would be lost over a year-long period. This
method is described in the Compliance Guidance as follows:
(1) Take the number of pounds of refrigerant added to the appliance
to return it to a full charge and divide it by the number of pounds of
refrigerant that the appliance normally contains at full charge;
(2) take the number of days that have passed since the last day
refrigerant was added and divide by 365 days;
(3) take the number calculated in step (1) and divide it by the
number calculated in step (2); and
(4) multiply the number calculated in step (3) by 100 to calculate
a percentage.
EPA's section 608 annualizing method is summarized in the following
formula:
[GRAPHIC] [TIFF OMITTED] TR11JA05.008
The second method for calculating leak rates discussed in the
Compliance Guidance is the ``rolling average'' method. The term
``rolling average'' is not defined in the Compliance Guidance, but EPA
proposed (63 FR 32057) to calculate it by:
(1) Taking the sum of the quantity of refrigerant added to the
appliance over the previous 365-day period (or over the period that has
passed since leaks in the appliance were last repaired, if that period
is less than one year);
(2) dividing the result of step one by the quantity (e.g., pounds)
of refrigerant the appliance normally contains at full charge; and
(3) multiplying the result of step two by 100 to obtain a
percentage.
EPA's section 608 rolling average method is summarized in the
following formula:
[GRAPHIC] [TIFF OMITTED] TR11JA05.009
In the NPRM, EPA considered four options for the formal definition
of ``leak rate.'' The first option was to require appliance owners or
operators to calculate leak rates using only the ``annualizing''
method. The second proposed method was to exclusively use EPA's Rolling
Average Method. The third proposed method was to use whichever method
yielding the highest leak rate. The forth proposed method was to allow
appliance owners or operators to use either method of their choosing
provided the same method is used consistently for all appliances
located at the facility. Discussion of the comments and EPA's decision
on these options are detailed below.
a. Comments on Option 1--Use of Annualizing Method
The first proposed option requiring owners or operators to
exclusively use the annualizing method received support from
commenters, but with some concern. Commenters generally expressed a
comfort level with the annualizing method, and consistently noted its
acceptance by CMA and EPA. However, several commenters expressed
[[Page 1976]]
concern over the projection of the leak rate over a 12-month period. A
trade group representing the commercial food sector expressed concern
that the proposed leak rate definition generates a total representing
an amount that would have been lost per 12-month period had the leak(s)
not been repaired rather than the amount of refrigerant actually
released in each instance prior to repair.
The proposed annualizing method does include the actual amount of
refrigerant added to the appliance in its calculation of the leak rate,
but projects or ``annualizes'' the leak rate by considering the amount
of time that has passed between refrigerant charges. EPA understands
commenters' concerns. For instances where owners or operators have
leaking appliances that continue to require addition of refrigerant,
the annualizing method may result in a higher leak rate than other
possible calculations that fail to annualize over a 12-month period, by
looking at the leak as a one time event and a simple ratio of
refrigerant added versus the full charge. Taking such an approach would
allow for continued patterns of repair attempts followed by refrigerant
recharge and subsequent release. Such a pattern is not viewed by EPA as
advantageous to the environment since the total amount of refrigerant
release is compounded over time. The leak repair amendments are aimed
at preventing such patterns and requiring owners or operators to
sufficiently repair or replace/retrofit appliances that cannot be
sufficiently repaired.
EPA believes that the first method (i.e., exclusive use of the
annualizing method) has the advantage of being relatively simple and
familiar. As a result of the compliance guidance, EPA believes that
many owners or operators are familiar with the method and have
incorporated the methodology into their manual and computerized
refrigerant tracking systems and standard operating procedures dealing
with repair of refrigerant leaks. However, EPA believes that the
preferred approach is to provide appliance owners or operators with
greater flexibility in calculating the ``leak rate.'' Hence EPA is not
mandating exclusive use of the annualizing method in defining the leak
rate.
b. Comments on Option 2--Use of EPA's Rolling Average Method
Commenters were generally opposed to the second proposed option
that requires owners or operators to calculate leak rates using only
the ``rolling average'' method, because they believed it resulted in
elevated leak rates when compared to calculating the leak rate with the
annualizing method. Commenters stated that under this method owners of
such appliances may be required to repair an appliance that has actual
leak rates below accepted limits. As examples, commenters cautioned:
(1) That the proposed formula would artificially elevate the leak rates
on appliances with large reserve capacity; and (2) that if the number
of days since refrigerant was last added to the system is more than 365
days, the percent leak rate is artificially elevated, and may require a
system to be repaired when there may be no substantial leak. An
additional commenter noted that while the compliance guidance mentions
the ``rolling average'' method, it was not defined until the NPRM
proposed a definition which may have caused some inconsistency between
industry practice and the proposed definition.
Several commenters expressed concern over the Agency's use of 365
days in the proposed option to include the rolling average method in
the definition of leak rate. Commenters stated their interpretation
that in order for the rolling average method to work, the last time
refrigerant was added to a system has to be less than 365 days. They
also stated that in order to calculate a true leak rate the operator
must know both how much refrigerant was lost and over what period of
time that loss occurred. One commenter stated that the time period must
always equal the interval between the realization of a leak and the
last time refrigerant was added in order to restore the system to its
normal operating charge, thus making the number 365 useless. Several
commenters objected to the rolling average method based on their
understanding that the calculation assumes that all leaks have occurred
within the past 365 days. The commenters stated that leak repairs occur
whenever operators find them, not on a set schedule (e.g., every 365
days). Commenters also stated that appliances with large reserve
capacities could be negatively impacted since the full charge may not
coincide with the operating charge.
EPA believes that the second method (i.e., exclusive use of the
rolling average method) is relatively simple and catches certain leaks
(such as the sudden fast leak described in the previous paragraph) more
quickly than the annualizing method. The disadvantage of the rolling
average method is that it permits owners or operators to delay repair
of certain types of leaks longer than the annualizing method and may
not show that appliances are leaking until they have lost a relatively
large percentage of charge; however, EPA does not find that this method
artificially inflates leak rates for appliances with large reserve
capacities. Appliance owners or operators have four options to
determine the full charge and have opportunity to take reserve amounts
under consideration when determining the full charge.
EPA is not requiring owners or operators to determine the amount of
refrigerant that has leaked from the appliance since the last repair,
but the owner or operator must determine how much refrigerant has been
added to the system within the past 12-month period or the number of
days since refrigerant was last added in order to calculate the leak
rate using the rolling average method. The time period of 365 days is
meant to cover all additions of refrigerant to the appliance over a
consecutive 12-month period, and does not imply that leaks only occur
once per year or on any particular schedule. EPA is aware that many
owners or operators repair appliances as soon as they realize that the
appliance is not functioning properly; however, the goal of the leak
repair requirements is to require owners or operators to take action on
chronic leakers that require repair on a frequent basis. The 365-day
time frame has significance, because it ``annualizes'' the leak rate of
the appliance over a consecutive 12-month period, and requires
operators and owners or operators to take action to repair, retrofit,
or replace leaking appliances.
In the NPRM, EPA noted that the second option was not preferable
but wished to provide notice and comment on the proposed options for
the definition of ``leak rate.'' Based in part upon comments received,
and the Agency's desire to provide more flexibility to owners or
operators in determining leak rates, EPA has decided to not finalize
the second option requiring exclusive use of the ``rolling average'' in
calculating the leak rate.
c. Comments on Option 3--Use of the Method Yielding the Highest Leak
Rate
EPA noted in the NPRM (63 FR 32058) that the third option,
requiring use of whichever method yields the higher calculated leak
rate, was its preferred option. This option is a more complicated
approach (both for compliance and enforcement) than requiring the use
of either method alone, but ensures that leaks are caught and addressed
as quickly as possible.
Commenters were generally opposed to the proposed third option of
calculating leak rates by whichever method yielded a higher leak rate,
[[Page 1977]]
because it would be more burdensome on equipment owners or operators
and EPA enforcement personnel because it requires facilities to
calculate leak rates using both methods and maintain supporting
documentation for both. Several commenters felt that if EPA were to
finalize this option, that the Agency should provide multiple formula
choices, thereby making the regulation more workable for business while
allowing the Agency to meet its objective of reducing leaks.
EPA is not finalizing the third proposed method for calculating the
annual leak rate. EPA believes that the third proposed method does not
provide a level of flexibility that is warranted for diverse appliances
used in the commercial and IPR sectors. EPA has reconsidered the
possible burden placed upon owners or operators who would be required
to calculate leak rates using both methods and maintain records on both
of the methods used to calculate leak rates. The enforcement of such a
requirement would also be more difficult as EPA enforcement personnel
would have to review multiple leak repair methods for different
appliances located at the same facility. Therefore, EPA is not
finalizing the third proposed method for calculating the annual leak
rate. However, EPA is not opposed to considering additional
methodologies for calculating or defining the leak rate, and may
propose alternative methodologies in future rulemakings.
d. Comments on Option 4--Owners or Operators Leak Rate Method of Choice
The fourth option proposed to permit owners or operators to
calculate leak rates using either method, so long as the same method is
always used for the same appliance, facility, or firm. While the
majority of commenters preferred the fourth option over the other three
options, a few commenters objected to the specification of a method for
calculating annual leak rates and argued that the Agency's method for
calculating leak rates should be revised to allow owners and operators
of the equipment to use any method that is technically sound and
consistently used for determining annual leak rates. The commenter
noted that this would address situations where the EPA/CMA methods do
not permit the accurate determination of leak rates. One commenter
believed that the Agency should provide two or three formula choices,
which would make the regulation more workable for business and allow
the Agency to meet its objective of reducing leaks. The commenter
stated that appliance owners and operators have economic and quality
control incentives to monitor and control leaks and should be afforded
maximum flexibility in calculating leak rates to ease and facilitate
compliance. Another commenter noted that if employed, this method
should not require use of the same method beyond the site or facility,
since such a requirement could lead to the disruption of established
programs.
EPA did not propose additional methods of calculating the leak rate
for incorporation into the proposed definition at Sec. 82.152. EPA
emphasizes that the onus is on the owner or operator of the appliance
to determine the leak rate (as defined at Sec. 82.152) upon addition
of refrigerant. If they fail to do so, owners or operators would have
no way of knowing what actions are required to remain in compliance
with the leak repair requirements.
EPA finds that while permitting appliance owners or operators to
select either of the two methods of their choice to calculate the leak
rate is somewhat more complicated, but could be easier for owners or
operators to comply with if they have more experience with one method
than the other. Both the annualizing and rolling average methods
eventually catch all leaks above the maximum allowable rate. Because
appliance owners or operators using the rolling average method would be
doing so at their discretion, this approach neutralizes any equity
concerns associated with that method. EPA believes that this option
provides flexibility to owners or operators of appliances and permits
them to choose whichever method they prefer. Furthermore, this option
addresses any concerns about ambiguity or inconsistencies concerning
the inclusion of the term ``rolling average'' in the definition of leak
repair and owners or operators are likely to have more experience with
one method than the other. Both the annualizing and the EPA's rolling
average methods catch all leaks above the maximum allowable rates.
While EPA prefers the use of the annualizing method, this fourth option
allows owners and operators to use the method of their choice and
neutralizes any equity concerns associated with either method.
Therefore, with this action, EPA is defining leak rate using the
fourth option which allows appliance owners or operators to use either
of the two methods of their choice, provided the option chosen is used
consistently for calculating leak rates for the lifetime of all
appliances located at an operating facility that are subject to the
leak repair requirements. EPA is also requiring the owner or operator
to promptly calculate the leak rate each time an owner or operator adds
refrigerant to a system normally containing more than 50 pounds of
refrigerant.
C. Required Practices for Leak Repair
In the NPRM, EPA proposed to lower the permissible leak rates for
some air-conditioning and refrigeration appliances containing more than
50 pounds of CFC and HCFC refrigerant. EPA also proposed to extend the
leak repair requirements (as they would be amended) to air-conditioning
and refrigeration appliances containing more than 50 pounds of HFC and
PFC substitutes.
EPA proposed to lower the permissible annual leak rate for new
commercial refrigeration appliances to 10 percent of the charge per
year, the permissible annual leak rate for older commercial
refrigeration appliances to 15 percent per year, the permissible annual
leak rate for some IPR appliances to 20 percent of the charge per year,
the permissible annual leak rate for other new appliances (e.g.,
comfort cooling chillers) to 5 percent of the charge per year, and the
permissible annual leak rate for other existing comfort cooling
appliances to 10 percent of the charge per year.
1. Comfort Cooling Appliances
EPA proposed to lower the leak rates based on indications from
appliance manufacturers that reductions in leak rates have been most
dramatic in comfort cooling chillers, where leak rates have been
lowered from between 10 and 15 percent per year to less than 5 percent
per year in many cases. In the NPRM, EPA noted that based on
information provided by equipment manufacturers that design changes and
leak detection technologies warranted the proposal to lower leak rates.
EPA referenced several design changes, such as installation of high-
efficiency purge devices on low-pressure chillers, the installation of
microprocessor-based monitoring systems that can alert system operators
to warning signs of leakage (such as excessive purge run time), the use
of leak-tight brazed rather than leak-prone flared connections, and the
use of isolation valves, which permit technicians to make repairs
without evacuating and opening the entire refrigerant circuit. In
addition, EPA noted that the reported leak rates for new chillers all
fall below 5 percent with the exception of the open-drive type of high
pressure chiller which has reported leak rates between 4 and 7 percent.
EPA requested comment on whether EPA should set a larger leak rate for
this type of chiller.
[[Page 1978]]
The majority of commenters were opposed to any effort to tighten
the existing leak rates for comfort cooling appliances. Several
commenters supported lower permissible leak rates for comfort cooling
appliances containing more than 50 pounds of refrigerant, but only to a
20-25%. Several commenters opposed applying more stringent leak repair
rates to older appliances, noting that the proposed leak rates (63 FR
32066) would be feasible only for some primary systems associated with
secondary fluid systems and would not be feasible for most comfort
cooling appliances. Another commenter claimed that the Agency failed to
provide any facts to support a finding that the regulated community
could locate and detect the small leaks. The commenter felt that at a
permissible leak rate of 5 percent, small and perhaps undetectable
leaks would become significant since they may result in an appliance
leaking above the proposed 5 percent leak rate.
Some commenters requested that the Agency consult with appliance
owners or operators to determine if their experiences confirm original
equipment manufacturers' claims on the leak tightness of newer
refrigeration and air-conditioning systems before finalizing tighter
leak rates that may not be practical. The commenter suggested that
separate leak rate criteria be created for new site-assembled
refrigeration units and chillers versus such equipment assembled in
factories.
Several commenters stated that more stringent rates for older
appliances would cause financial and operational burdens on owners or
operators, partially because many older systems were not designed to
accommodate devices that reduce emission losses to the proposed level.
Specifically, medium and high-pressure appliances for which retrofit
high-efficiency purge systems are not available were of particular
concern. One commenter suggested that lowering the permissible leak
rate for newer comfort cooling units to 5 percent goes beyond the
``lowest achievable level'' of emissions reductions required by Sec.
608(a)(3)(A). The commenter pointed out that as these new units age,
their leak rates will inherently increase.
In response to comments EPA notes that the intent of the leak
repair regulations is to require owners or operators to maintain
appliances over their life-span. EPA recognizes that these appliances
may leak with greater frequency as they age. By promulgating these
regulations, EPA intends to minimize refrigerant releases by requiring
owners or operators to take actions to maintain appliances as they age
or retire or replace inherently leaking appliances. Replacement of
leaking appliances has the benefit of use of newer appliances that in
general tend to have lower refrigerant charges and fewer leak
occurrences. These efforts insure that refrigerant emissions are
minimized to the lowest achievable level, in accordance with section
608 of the Clean Air Act.
EPA believes that additional data on historical repair trends and
leak tightness of comfort cooling appliances are warranted prior to
lowering the leak rates. EPA intends to initiate efforts to gather data
on the availability and effectiveness of current leak detection methods
and equipment prior to amending the leak repair trigger rates.
Therefore, as a part of today's action, EPA is not finalizing the
proposal to lower the permissible leak rates for comfort cooling
appliances containing more than 50 pounds of refrigerant to 5 and 10
percent of the charge per year for new and existing appliances,
respectively.
2. Commercial Refrigeration
In the NPRM, EPA proposed that the maximum permissible leak rate
for new commercial refrigeration equipment (commissioned after 1992) be
lowered to 10 percent per year, and that the maximum rate for old
commercial refrigeration equipment (commissioned in or before 1992) be
lowered to 15 percent per year.
EPA based the proposal to lower the leak rate in part on a study
sponsored by EPA's Office of Research and Development (ORD). The ORD
study analyzed two detailed bodies of data on leakage from commercial
refrigeration equipment, one collected by a Midwestern chain of 110
stores and the other gathered by the South Coast Air Quality Management
District (SCAQMD), which requires monitoring and reporting of leak
rates from large refrigeration systems. The Midwestern chain achieved
an average leak rate of 15 percent by establishing written procedures
for equipment installation (including a requirement for brazed or
``sweated'' expansion valves), a refrigerant monitoring system, and an
equipment inspection protocol. This rate was achieved in 1992, before
EPA's leak repair requirements were even in effect. The data collected
by SCAQMD was based upon 440 recharging and leak testing events from 56
different stores representing 20 different businesses. The average leak
rate achieved by the stores was eight (8) percent of the total charge.
The ORD report also investigated the cost-effectiveness of
different strategies and technologies for reducing leak rates, finding
that many of these approaches could lower leak rates significantly and
thereby pay for themselves. The report indicated that by using a
combination of these approaches, a number of chains had significantly
reduced both overall refrigerant consumption and leakage from equipment
over the previous two to eight years. Some of the most effective
approaches included vibration elimination devices, use of high-quality
brazed rather than mechanical connections, low emission condensers,
stationary leakage monitors, refrigerant tracking and improved
preventive maintenance. A few of the approaches, such as installation
of low-emission condensers, were more applicable to new than to
existing appliances; however, many of the approaches, such as
refrigerant monitors, refrigerant tracking systems, and improved
preventive maintenance, were applicable to both existing and new
appliances. According to the report, these approaches were individually
expected to reduce leak rates from appliances by between 5 and 40
percent of the charge per year.
EPA requested comment on the proposed rates, and whether the
relatively low leak rates observed in new equipment are likely to
persist throughout its lifetime, or whether those rates are likely to
rise over its lifetime to approach the current leak rates of older
equipment. EPA also requested comment on whether higher or lower rates
might be appropriate for different types of commercial refrigeration
equipment, given that compressor rack systems, single compressor
systems, and self-contained units may have significantly different
average leak rates. Finally, EPA requested comment on whether
significant percentages (e.g., 10 percent or more) of the various types
of commercial refrigeration equipment may be able to comply with leak
rates of 10 or 15 percent without being totally replaced, and, if this
is the case, whether permissible leak rates of 15 and 20 percent might
be more achievable.
In general, commenters were opposed to the proposed reduction in
the maximum permissible leak rate for commercial refrigeration
appliances. Commenters were concerned that the two studies used to set
the new leak rates for commercial refrigeration units with charges
greater than 50 pounds excluded small businesses and ignored the
differences between new and old equipment. One commenter stated that
the two studies cited by the Agency do not show that all refrigeration
systems
[[Page 1979]]
can achieve the proposed leak rates, nor do they show that any
regulatory requirements are needed. The commenter noted that the study
did not comprise a statistically significant sample, and the
information from these studies would apply to only a limited subset of
existing and future refrigeration systems. Another commenter stated
that the case studies referenced in the study summarize anecdotal and
limited data by concentrating on best management practices to reduce
maintenance costs instead of the ability for grocers to adhere to the
proposed lower leak rates. The commenter stated that the NPRM would
also have negative financial implications upon small independent
grocers.
Commenters stated that, leaks occur at seals and O-rings and are
the result of normal wear, tear, stress, and vibration. The commenter
noted that due to the nature of the commercial sector that grocers
become aware of such leaks almost immediately because the equipment
owner faces the cost of replacing lost refrigerant and the loss of
perishable goods. Commenters also stated that depending on store
design, leak detection can be costly, difficult, and sometimes labor
intensive. Commenters stated that EPA should not attempt to dictate the
type of commercial appliance used (e.g., open-drive compressors or
direct expansion systems rather than hermetic compressors and secondary
loop systems) in order to justify lowering the leak rates.
EPA received comment that tightening of leak rates for the
commercial sector would negatively impact small independent grocers.
Commenters noted that the life expectancy of a refrigerant case is
typically 20-25 years and argued that the rule will require many
independent grocers to purchase new commercial refrigeration equipment
to lower their annual leak rates to comply with the new requirements. A
commenter explained that for those grocers still legally using older
CFC-based equipment, that it may be impossible to attain a 10 or 15
percent leak rate. The only viable options would be for the grocers to
either close or purchase new equipment.
EPA acknowledges that neither of the studies differentiated between
new and old appliances. The cited studies include in their analyses
commercial refrigeration appliances that are commonly available in the
commercial sector. EPA does not believe that the type of appliance
available and covered under the leak repair regulations differs
depending on the classification of the business owner as an independent
grocer. According to commenters, smaller independent grocers may rely
on older appliances, but EPA does not find a persuasive rationale to
allow older appliances to continue to leak at high rates because they
are aging. EPA agrees that owners or operators of commercial
refrigeration appliances have an economic incentive to repair leaks as
soon as they are discovered. However, EPA finds that continued patterns
of repair attempts followed by refrigerant recharges are not optimal
for environmental protection. This is especially true for appliances
that may be described as ``chronic leakers.'' The intent of the leak
repair regulations is to require owners or operators to sufficiently
repair appliances (especially as appliances age) so that they will not
develop a history of leak events, or retrofit or replace appliances
that cannot be sufficiently repaired. EPA is not mandating the use of
any specific leak detection equipment, but believes that the use of
detection equipment is one means of preventing loses resulting in
extensive repair and use of ozone-depleting refrigerants, in both older
and newer appliances.
EPA believes that additional data on historical repair trends and
leak tightness of commercial refrigeration appliances is warranted
prior to lowering the leak rates. EPA intends to initiate efforts and
seek cooperation from organizations representing the commercial
refrigeration sector to gather data on the availability and
effectiveness of current leak detection methods and equipment prior to
amending the leak repair trigger rates. Therefore, as a part of today's
action, EPA is not finalizing the proposal to lower the permissible
leak rates for commercial appliances containing more than 50 pounds of
refrigerant.
Since EPA is not finalizing a lowering of the leak rate, there is
no need to finalize the proposal of a two-tier leak rate based upon the
date of manufacture, compressor configuration, and possession (or lack)
of a secondary loop in determining maximum allowable leak rates. The
Agency may address the proposal to lower the applicable leak repair
trigger rates by reproposing, in a future NPRM, a lower leak rate for
commercial refrigeration appliances.
3. Industrial Process Refrigeration (IPR)
The conditions that contribute to a wide range of leak rates in the
commercial refrigeration sector apply even more to the industrial
process refrigeration sector. Appliances in the industrial process
refrigeration sector are not only assembled on-site, but are often
custom-designed for a wide spectrum of processes and plants, giving the
sector an extraordinarily broad range of appliance configurations and
designs. Appliances may be high-or low-pressure; may possess hermetic,
semi-hermetic, or open-drive compressors; may use one (primary) or two
(primary and secondary) refrigerant loops; maybe brand new or decades
old; and may range in charge size from a few hundred to more than
100,000 pounds of refrigerant. All of these factors are important in
determining leak rates, leading to a wide range of attainable leak
rates.
In the NPRM, EPA stated that industrial process refrigeration
equipment built more recently has generally been designed to leak less
than equipment built earlier. Thus, EPA proposed to consider the date
of manufacture, compressor configuration, and possession (or lack) of a
secondary loop in determining maximum allowable leak rates for
industrial process refrigeration appliances. The proposal did not
include provisions for higher leak rates for appliances with very large
charge sizes, because a given leak rate in large appliances causes more
environmental harm than the same leak rate in small appliances. For
example, a 20 percent annual leak rate in an appliance with a 10,000
pound charge would result in the release of 2,000 pounds of refrigerant
per year, while a 20 percent annual leak rate in an appliance with a
1,000 pound charge would result in the release of 200 pounds of
refrigerant per year. Although it may be more difficult or expensive to
achieve a given leak rate in large appliances than in small appliances,
EPA believed that these additional efforts were warranted by the larger
environmental impact of leaks from large appliances. In view of these
considerations, EPA proposed different maximum permissible leak rates
based on the appliance's date of manufacture, compressor configuration,
and number of refrigerant loops (primary only vs. primary and
secondary).
Under the proposed approach, industrial process refrigeration
appliances would have been subject to a 20 percent per year maximum
permissible leak rate unless it met all four of the following criteria:
(1) The refrigeration system is custom-built;
(2) The refrigeration system has an open-drive compressor;
(3) The refrigeration system was built in 1992 or before; and
[[Page 1980]]
(4) The system is direct-expansion (contains a single, primary
refrigerant loop).
Systems that met conditions 1, 2, 3, and 4 would continue to be
subject to the 35-percent-per-year maximum permissible leak rate.
The Agency requested comment on the approach, both on the criteria
used to sort appliances between the 20 percent and 35 percent per year
rates, and on the rates themselves. EPA specifically requested comment
on whether it might be appropriate to permit a higher leak rate for
appliances with a charge size above 10,000 pounds that were built
before 1992. EPA also sought comment on whether it would be appropriate
to use a measure other than charge size (such as pipe length) to
characterize sprawling, inherently leaky appliances.
In general commenters were opposed to any effort by EPA to lower
leak rates for IPR appliances. Commenters noted that refrigeration
operators have already lowered leak rates as much as possible due to
the high cost of refrigerant, potential cost of lost productivity,
maintenance costs, and efficiency. Most commenters based their
objections on a lack of sufficient valid and representative data
demonstrating that the lower rates can be achieved. The commenters
expressed their belief that the Agency used references to new equipment
as opposed to data from actual users to arrive at the proposed
permissible leak rates.
In addition, EPA requested comment on the interchangeability of
equipment designs that may be more leak-tight than others. That is, the
Agency wanted to know if there are compelling reasons why users of
industrial process refrigeration must use open-drive compressors or
direct expansion systems rather than hermetic compressors and secondary
loops.
EPA received comments stating that the Agency should not require
retrofitting or rebuilding of older appliances that use open-drive
compressors and/or have long primary refrigerant loops, because the
cost associated with rebuilding a refrigeration system to use hermetic
compressors or secondary refrigerants is large. Additional comments
noted several problems with requiring hermetic compressors for
industrial applications. Commenters noted that maintenance takes longer
and emissions are more likely, because the whole refrigerant charge has
to be cleaned or replaced if the hermetic compressor motor fails. A
commenter suggested that if the Agency is considering requiring
hermetic (or semi-hermetic) compressors and/or secondary refrigerants,
it should do so in a different rulemaking with its own proposal and
comment period due to concerns over technical infeasibility (especially
for lower temperature and larger manufacturing processes) and
associated costs. Commenters stated that hermetic (or semi-hermetic)
compressors would not necessarily always provide a large degree of
emissions reductions, hence there is less certainty as to the
environmental benefit of this proposed requirement.
A commenter stated that a universal requirement to use secondary
refrigerants would be inappropriate. The commenter stated that suitable
or compatible secondary refrigerants might not be available for a
particular process. The commenter believed that switching to secondary
refrigerants would be burdensome because most refrigeration systems are
designed for specific primary refrigerants. According to the commenter,
large portions of the system would have to be replaced at great expense
to successfully switch to a secondary refrigerant.
EPA also sought comment on other possible approaches to leak repair
in industrial process refrigeration equipment that could be more or
less complex than the one proposed. A simple approach would lower the
current permissible leak rate for all industrial process appliances to
a single new rate, perhaps to 25 percent per year. A more complex
approach would establish three or more permissible rates for different
classes of appliances.
One commenter suggested a two-tier approach to lowering the
permissible leak rate that would allow industry to select the tier
which best accommodates their needs. The first tier would be a simple
approach that reduces the permissible leak rate to a new lower rate
(say 25-30%) that would apply to all industrial process refrigeration
appliances. The second tier would be a more complex approach, namely,
to distinguish between appliance types in establishing permissible leak
rates.
Another commenter was concerned that the proposed permissible leak
rates may be difficult to achieve without replacing the entire
appliance or wholesale replacement of joints and seals. Although
technically feasible, the commenter thought this would be an
unreasonable requirement due to the costs associated with such
replacements. The commenter suggested a more lenient acceptable leak
rate to account for normal variations in leak rates between various
pieces of the appliance. The commenter noted that revised regulations
should take into account increasing leak rates in older appliances,
higher leak rates in portable and mobile appliances, and refrigerant
charging errors that may significantly distort the leak rate
calculation. The commenter suggested permissible leak rates of 25
percent for commercial refrigeration, regardless of the age of the
appliance, and 10-15 percent for all other appliances.
EPA also sought comment on the proposal to make the new leak rates
effective for industrial process refrigeration equipment three years
after promulgation for the following reasons:
1. Owners, operators, and servicers of industrial process
refrigeration appliances have had less time than owners, operators, and
servicers of other types of appliances to learn and implement the
existing maximum permissible rates;
2. Custom-built industrial process refrigeration appliances and
replacement parts take longer than other types of appliances to order,
build, and repair, thus providing a rationale for a time delay between
promulgation and effective date;
3. Industrial process refrigeration appliances must be shut down,
at considerable expense before large repairs can be made to their
refrigeration systems or before such systems can be replaced, thus
providing a rationale for permitting significant lead time between the
promulgation and effective date of the new leak rate.
EPA received comment supporting the effective date. Commenters
stated that the use of 30 days after the publication date of the final
rule would be impractical as it does not take into consideration the
work load and scheduling of refrigeration contractors nor the cost and
impact on the budgetary process of the appliance owner. Other
commenters noted that the three-year delay would allow time for
technicians to be retrained, and to help mitigate the burden and
disruption associated with the change in leak rates.
EPA believes, based on the comments it received, that additional
data on historical repair trends and leak tightness of industrial
process refrigeration appliances are warranted prior to lowering the
leak rates. EPA intends to initiate efforts to gather data on the
availability and effectiveness of current leak reduction methods prior
to amending the leak repair trigger rates. Therefore, as a part of
today's action, EPA is not finalizing the proposal to lower the
permissible leak rates for industrial process refrigeration appliances
containing more than 50 pounds of CFC or HCFC refrigerant. Since EPA is
not finalizing the proposal
[[Page 1981]]
to lower leak rates for industrial process refrigeration appliances,
there will not be a corresponding three-year implementation date for
the effective date of the regulations. Due to the apparent difficulties
and incompatibility of hermetic compressors in the industrial process
refrigeration sector, further evaluation is required prior to any
Agency action considering how to incorporate the use of hermetic
compressors or secondary loop systems into the leak repair regulations.
The Agency may address, in a future NPRM, alternative approaches to
determining the leak rate in industrial process refrigeration.
4. Cross-Sector Issues
EPA requested comment on several issues affecting all three sectors
covered by the leak repair requirements. EPA requested comment on its
proposal to establish a two-tier leak rate which would distinguish
between old and new appliances in establishing maximum allowable leak
rates based upon the date of manufacture of the appliances. EPA
proposed and sought comment on the use of the year 1992 as the baseline
to regulate appliances more or less stringently. EPA also requested
comment on whether the environmental and economic benefits of having
two leak rates would justify the increase in administrative complexity
that would result from such an approach.
In proposing to establish a two-tier leak repair requirement based
upon the age of appliances, EPA requested comment on whether the date
of ``manufacture'' should be defined as the date that appliance leaves
the factory or the date that it is installed. EPA noted that it may be
appropriate to define ``manufacture'' differently for different types
of appliances, because some appliances (e.g., comfort cooling chillers)
could be considered ``manufactured'' when they leave the factory, while
appliances that are assembled in the field from numerous components
(e.g., commercial and industrial process refrigeration) could be
considered ``manufactured'' when their installation is complete.
EPA received comments stating that the Agency should not require
refrigeration equipment to continue to meet the same very low leak
rates throughout the life of the equipment, because leak rates are
likely to increase as the refrigeration equipment ages. One commenter
noted that experience indicates that older refrigeration systems
generally have higher leak rates than new ones; hence, systems do not
maintain the same leak rates throughout their life span. Many common
types of machinery exhibit a decline in performance as they age. The
commenter cautioned that if the Agency obtains historic information on
leak-tightness of refrigeration systems, it should not compare pre-rule
(63 FR 32044; June 11, 1998) to post-rule data, because improvements in
the leak rates of older equipment would result from the regulation
going into effect, not from any improvement in that actual equipment.
The commenter stated that because it is unlikely that the Agency will
have historical leak-tightness data on the equipment, and because post-
rule equipment has not yet completed a full life span, the Agency
should not impose leak rates that the equipment may not be able to meet
as it ages. The commenter stated that the Agency should provide a
mechanism that permits equipment to continue to comply as it ages.
EPA concurs with the commenters in that leak rates are likely to
increase as the appliances age, and believes that this is in fact the
rationale for establishing the leak repair requirements. While EPA
proposed a two-tier rate, the NPRM did not propose or imply that the
leak rate for older appliances would not be tightened. To the contrary,
the NPRM discussed the Agency's intent to lower leak rates for older
appliances while establishing a two-tier system. Older appliances
should be maintained to be as tight as possible. By mandating leak
repair trigger rates, EPA ensures that older appliances will be
maintained and emissions of refrigerants will be minimized to the
lowest achievable level as appliances age.
EPA received mixed comments regarding the Agency's proposal to
differentiate leak rates for appliances based upon date of manufacture.
Some commenters expressed concern that this approach complicates the
regulation because owners and operators would need to rely on a
nameplate on the appliance for the date of manufacture or other data
that might not be readily available. Other commenters requested that
the date of manufacture for custom-built appliances be identified
according to the date that the appliance leaves the factory, because
the date of shipment and the date that the appliance was actually
placed into service may be years apart. While others suggested that the
date of manufacture be defined as the date of mechanical completion or
start-up date of the system.
EPA also requested comment on whether it is possible to distinguish
between slow leakage, servicing emissions, and catastrophic emissions
in establishing and complying with leak rate limits. This question
becomes important with a lower permissible leak rate because the
percentage of charge lost through servicing and catastrophic emissions
may be a significant fraction of the lower rate.
EPA received comment that amendments to the leak rate required
practices may not be necessary because in many sectors, such as the
commercial sector, leaks tend to be catastrophic in nature. One
commenter stated that it would not be helpful to exclude catastrophic
losses from leak rate calculations, since the immediate repair of such
appliances is necessary in order to get the refrigeration system back
on-line. The commenter suggested that such an exclusion may actually be
detrimental if the Agency then requires some sort of recordkeeping
requirement to keep track of which emissions were from ordinary leaks
and which were from catastrophic events. In such instances repairs are
not only required but a necessity in order to remain operable; thus, it
is in the best interest of the owner to control and reduce leaks.
Commenters stated that owners or operators should not be faulted for
catastrophic leakage of refrigeration equipment; thus, it is
appropriate to establish leak rates based on slow leaks alone.
The primary goal of the leak repair provisions has been to reduce
emissions from leaking appliances. EPA recognizes that catastrophic
emissions are often beyond the control of appliance owners or
operators. EPA believes that catastrophic losses will come to the
attention of appliance owners or operators very quickly after they
occur and will be large compared to losses from slow emissions. In
sectors such as the commercial refrigeration sector, immediate repair
of catastrophic leaks is required in order to sustain business
operations. EPA believes that a requirement to repair the appliance so
that it does not continue to leak above the applicable annual leak rate
would not be expected to compromise the need of the owner or operator
to repair the catastrophic leak. Since the commercial sector would need
to respond to catastrophic releases immediately, EPA believes that
adherence to the leak repair requirements simply reinforces the need to
repair leaks in a timely manner. The environmental benefit of the
requirements is that they persuade owners or operators to take action
to address the operation of appliances that have a history of
catastrophic failures. Under the proposed and final leak repair
regulations such appliances would eventually require retirement,
replacement, or retrofit to substitutes that are less damaging to the
ozone
[[Page 1982]]
layer. The intent of the requirements is not to mandate continuous
repair attempts on leaking appliances, but to take efforts to maintain
appliances such that they will not undergo repeated patterns of repair
attempts followed by refrigerant recharge. EPA emphasizes that the aim
of the leak repair regulations is to minimize emissions of ozone-
depleting refrigerants to the lowest achievable level by requiring the
repair, replacement, or retrofit of leaking appliances. Therefore,
while catastrophic loses are not the intended focus of the leak repair
requirements, such loses are not exempt from the leak repair
requirements.
5. Extension of Leak Repair Requirements to HFC and PFC Appliances
In the NPRM, EPA explained that establishing consistent leak repair
requirements for CFC, HCFC, HFC, and PFC appliances would minimize
emissions of all four types of refrigerants and substitutes. EPA
further explained that exempting HFC and PFC substitutes from
conservation requirements could lead to confusion and skepticism
regarding similar requirements for CFCs and HCFCs, which would
undermine implementation of the statutory directives to reduce
emissions of these substances to the lowest achievable level and to
maximize their recapture and recycling. Hence in the NPRM, EPA
requested comment on its proposal to extend the leak repair
requirements to owners or operators of appliances using HFC and PFC
substitutes.
EPA received comments opposing the extension of the leak rate
regulations to HFC and PFC refrigerant substitutes. Commenters cited
the price of HFCs and the need for efficient operation of refrigeration
equipment as incentives for owners or operators to repair leaks as soon
as possible, regardless of a maximum permissible leak rate. Comments
also questioned the statutory authority of EPA to regulate substances
that do not contribute to depletion of the stratospheric ozone layer
(i.e., class I and class II ODS). One commenter stated that the
proposal was arbitrary, capricious, or otherwise not in accordance with
law; therefore, it would be illegal for the Agency to impose leak
repair requirements on those systems and refrigerants for which it
lacks sufficient data. The commenter also stated that the requirements
cannot apply to leaks that occur during normal use, since these leaks
do not occur during the servicing, maintenance, or disposal of
appliances.
In the NPRM (63 FR 32045; June 11, 1998) EPA explained that section
608(a) provides EPA with authority to promulgate the proposed
requirements. Section 608(a) requires EPA to promulgate regulations
regarding use and disposal of class I and II substances that ``reduce
the use and emission of such substances to the lowest achievable
level'' and ``maximize the recapture and recycling of such
substances.'' Section 608(a) further provides that ``(s)uch regulations
may include requirements to use alternative substances (including
substances which are not class I or class II substances) * * * or to
promote the use of safe alternatives pursuant to section 612 or any
combination of the foregoing.'' In addition, section 608(a)(2) requires
EPA to promulgate regulations establishing standards and requirements
regarding use and disposal of class I and class II substances during
service, repair, or disposal of appliances.
While market price may be an incentive against venting, it has not
been found to be a sufficient deterrent against the continuous practice
of repair attempts followed by refrigerant recharges. EPA inspections
continue to find excessive leak rates from IPR appliances. EPA believes
that the statutory authority to promulgate regulations regarding use of
class I and II substances, including requirements to use alternatives,
is sufficiently broad to include requirements on how to use
alternatives, where regulation is needed to reduce emissions and
maximize recycling of class I and II substances.
Therefore, in accordance with the requirements of section 608(c) of
the Act, EPA is extending the leak repair required practices and the
associated reporting and recordkeeping requirements to owners or
operators of appliances using HFC blends that consist in part of an
ODS. Therefore owners or operators of appliances using HFC refrigerant
blends including but not limited to R-401A and B, R-402A and B, R-403B,
R-406A, R-408A, R-409A, R-411A, and B, R-414A and B, R-416A, R-500, R-
502, R-503, NARM-502, RB-276 (FreeZone), GHG-HP, GHG-X5, Freeze 12,
ICOR, THR-04, and R-509 are covered under the leak repair required
practices because the refrigerants consist in part of a class II ODS.
This extension has been accomplished by amending the definition of
refrigerant at Sec. 82.152 in a previous rulemaking (March 12, 2004;
69 FR 11946). The change in the definition means that substitutes
consisting in whole or in part of an ODS are covered under the required
practices of 40 CFR part 82, subpart F (i.e., section 608).
EPA has decided not to extend the leak repair requirements or the
associated reporting and recordkeeping requirements to owners or
operators of appliances using pure HFC or PFC substitutes. However, EPA
emphasizes that HFC and PFC substitutes are not exempt from the
statutory venting prohibition of section 608(c)(2) of the Act (69 FR
11946; March 12, 2004). Therefore, in the absence of any required leak
repair requirements, it statutorily remains illegal to knowingly vent
HFC and PFC substitutes during the maintenance, service, repair, and
disposal of comfort cooling, commercial refrigeration, and industrial
process refrigeration appliances.
6. Clarification of Leak Repair Requirements
In the May 14, 1993 final rule (58 FR 28660), EPA published final
regulations requiring owners and operators to ``have all leaks
repaired'' where an appliance subject to the leak repair requirements
was leaking above the applicable allowable annual leak rate (58 FR
28716). In a subsequent rulemaking regarding leak repair requirements
published on August 8, 1995 (60 FR 40420), EPA amended that language to
state that ``repairs must bring the annual leak rate to below 35
percent of the total charge during a 12-month period'' (60 FR 40440),
or where appropriate, to below 15 percent. This change in the rule
recognized that appliances without hermetically sealed refrigerant
circuits should not be expected to have a ``zero percent'' leak rate.
EPA believes that it is practical to require the owners or
operators to maintain a leak rate that is at or below the applicable
allowable annual rate, and where the leak rate has been exceeded to
make the necessary repairs to return the appliance's leak rate to or
below the applicable allowable leak rate or to retrofit/retire the
appliance. EPA emphasizes that compliance with the required practices
for leak repair is dependent upon the leak rate of the appliance not
the repair of a specific leak or leaks.
In response to commenters' concerns regarding verification testing,
EPA is clarifying that at this time verification testing is only
required for: owners or operators of industrial process refrigeration
appliances, in accordance with Sec. 82.156(i)(3); owners or operators
of federally-owned comfort cooling appliances who are granted
additional time for repairs under Sec. 82.156(i)(5)(iii); and owners
or operators of federally-owned commercial refrigeration
[[Page 1983]]
appliances who are granted additional time for repairs under Sec.
82.156(i)(1)(iii). While verification tests are not required for all
sectors, such testing performed as a part of leak repair efforts has
advantages for owners and operators. EPA believes that attempts to
verify repairs at the point of repair and again after the appliance is
operational will aid the owner or operator in demonstrating compliance
with the leak repair regulations. In contrast, multiple repair attempts
of the same leaks followed by refrigerant recharge demonstrate that the
repair of the appliance did not bring the annual leak rate to below the
applicable leak rate as required by Sec. 82.156(i).
EPA requires owners and operators of industrial process
refrigeration appliances and in some instances for federally-owned
commercial refrigeration appliances and federally-owned comfort cooling
appliances that are granted additional time to make repairs, to perform
initial and followup verification tests to establish that repairs were
successful. EPA recognizes that verification tests indicate the success
or failure of the repair effort for a given leak or set of leaks, not
the leak rate of an appliance. In the August 8, 1995 rulemaking, EPA
stated that it was not the Agency's ``intention to imply that the
verification tests show what the leak rate is. However, EPA believes
that where the verification tests show that the repairs have been
successful, in most cases this will mean that there has been a
reduction in the leak rate'' (60 FR 40430).
Section 82.156(i) requires owners or operators to conduct repairs
to lower an appliance's leak rate below the applicable allowable annual
leak rate. EPA emphasizes that knowing a leak has been repaired does
not necessarily mean that the owner or operator is aware of the current
leak rate of the appliance or whether the owner or operator is in
compliance with the required practices of Sec. 82.156. Such is the
case in instances where owners or operators make repair attempts but do
not calculate the leak rate. Without calculating the leak rate the
owner or operator would have no means of determining compliance with
the leak repair required practices.
In the NPRM, EPA described four compliance scenarios to assist the
owners or operators in determining what actions are appropriate when an
appliance is leaking above the applicable allowable annual leak rate.
Due to the volume of questions that those scenarios generated, EPA
feels that further discussion of the leak repair compliance scenarios
is warranted. The compliance scenarios described in the NPRM are
consistent with the regulatory requirements, and the Agency did not
propose any regulatory changes associated with these scenarios. EPA
discussed the scenarios in the NPRM to provide compliance assistance.
EPA solicited feedback on these scenarios and the outcomes described in
each scenario in order to evaluate the need for further clarification
and possible regulatory amendments. The following discussion of five
scenarios (the previous four scenarios from the NPRM (63 FR 32070; June
11, 1998) and one more scenario added for further clarity) aims to
provide further clarification to the regulated community on how the
leak rate and verification tests relate to the repair and/or retrofit/
retire provisions promulgated at Sec. 82.156(i). EPA has edited the
scenarios to remove any ambiguity as to their applicability to
industrial process refrigeration, comfort cooling, or commercial
refrigeration appliances.
a. Scenario 1
In Scenario 1, the owner or operator of industrial process
refrigeration appliances or federally-owned comfort-cooling or
commercial appliances discovers that the appliance is leaking above the
applicable allowable annual leak rate. The owner or operator fixes all
leaks, and verifies that the leaks have been repaired consistent with
the verification testing requirements of Sec. 82.156(i), meaning an
initial verification test was conducted at the conclusion of the repair
efforts and a follow-up verification test was conducted within 30 days
after the initial verification test. If a leak rate above the
applicable allowable annual leak rate for the appliance is suspected
after the repairs are completed and leaks are discovered at new
locations, these leaks will be considered as a new leak occurrence for
the appliance.
Leaks in the appliance that occur after repair attempts (whether or
not they occur at the same location), but in the absence of mandatory
initial and follow-up verification tests are considered violations for
several reasons. First, the verification tests were not conducted in
accordance with Sec. 82.156. It is more likely that failure to verify
that repairs were successful will lead to future leaks within the
appliance. EPA considers refrigeration additions that occur after
repair attempts, but in the absence of successful mandatory
verification tests, to be continuing violations. This is because
without verification, there is no evidence that the owner or operator
brought the leak rate of the appliance beneath the applicable leak
rate, even though repair attempts might have been made.
However, if mandatory verification tests show that repairs were
successful and the appliance is once again suspected of having a leak
at a new location that results in the appliance leaking above the
applicable allowable leak rate (even if the leak occurs a short time
after the repairs were completed), EPA considers these leaks as a new
leak occurrence for the appliance. The next leak occurrence requiring
addition of refrigerant would constitute a new leak occurrence for the
appliance, and the owner or operator would be required to comply with
all applicable requirements promulgated at Sec. 82.156(i).
Scenario 1 as described in the NPRM was not applicable to owners or
operators of comfort cooling or commercial refrigeration appliances
that are not federally-owned or operated. These appliance owners or
operators are encouraged but not currently mandated to perform initial
and follow-up verification tests in order to ensure that the leak rate
has been brought below the applicable leak rate. Owners or operators of
comfort cooling or commercial refrigeration appliances that are not
federally-owned or operated are required to repair leaks such that the
leak rate of the appliance will not exceed the applicable leak rate
within 30 days of discovery. Owners or operators are relieved of this
obligation if they choose to develop, within 30 days of discovery of a
leak, a one-year retrofit or retirement plan in accordance with
Sec. Sec. 82.156(i)(1) and (i)(5), for commercial and comfort cooling
appliances, respectively.
b. Scenario 2
Scenario 2 as described in the NPRM was not applicable to owners or
operators of comfort cooling or commercial refrigeration appliances
that are not federally-owned or operated, because such owners or
operators are not required to perform initial and follow-up
verification tests. In response to public comments requesting clarity
on the scenario, EPA has clarified Scenario 2 such that it is specific
to repeated leaks at the same location (same location meaning an
identical point within the same appliance).
Under Scenario 2, the owner or operator of the industrial process
refrigeration or under certain circumstances the owner or operator of
federally owned comfort cooling or commercial appliance with a
refrigerant charge greater than 50 pounds discovers that the appliance
is leaking above the applicable allowable annual leak rate. The owner
or operator fixes the leaks
[[Page 1984]]
and verifies that they have been repaired consistent with Sec.
82.156(i). The next time leaks are suspected within a consecutive 12-
month period, the owner or operator finds leaks have occurred at the
same location (meaning the identical point within the same appliance).
This ongoing problem is an indication that appropriate repairs have not
been conducted. Where leaks at the same location continue to occur, the
owner or operator has not performed repair efforts necessary to reduce
the leak rate below the applicable allowable annual leak rate. Thus,
the owner or operator has violated the required practices established
in Sec. 82.156(i).
c. Scenario 3
In the third scenario, the owner or operator discovers that the
appliance is leaking above the applicable allowable annual rate and
identifies ten different leak sources that are contributing to the high
leak rate. The owner or operator determines that repairing six leaks
will bring the appliance into compliance by lowering the leak rate to
below the applicable allowable annual rate. The owner or operator
believes that leaving four leaks unrepaired still will result in a leak
rate below the applicable allowable annual rate. The owner or operator
fixes and as required for industrial process refrigeration and
federally-owned comfort cooling and commercial appliances verifies that
these six leaks have been repaired consistent with the requirements
promulgated at Sec. 82.156(i). The appliance continues to leak, but
below the applicable allowable annual rate.
In the NPRM, EPA stated that in this scenario the owner or operator
of the appliance complied with the requirements by actually reducing
and maintaining a leak rate that is below the applicable allowable
annual rate. Such is the case for instances where owners or operators
are mandated to perform initial and follow-up verification tests, in
accordance with Sec. 82.156(i). EPA is concerned that this scenario as
proposed may not provide compliance for owners or operators who are not
currently mandated to perform initial and followup verification tests,
namely owners or operators of commercial and comfort cooling
appliances.
In order to remain consistent with the regulatory language
requiring owners or operators to make repairs that bring the annual
leak rate to below the applicable leak rate, EPA is clarifying that it
cannot condone actions by owners or operators to knowingly allow
appliances to leak. EPA believes that failure to repair all known
leaks, and successfully verify repairs when required, leaves the owner
or operator with a great deal of uncertainty concerning their
compliance with the leak repair required practices. In the absence of
verification, the owner or operator of comfort cooling and commercial
appliances would have no way of knowing if their appliance is not in
compliance until a future need to add refrigerant. If the owner or
operator decided to leave known leaks unchecked, a future addition of
refrigerant could lead to a continuing violation for failure to
sufficiently repair the appliance such that it does not leak above the
applicable leak rate within 30 days of discovery.
d. Scenario 4
In the fourth scenario, the owner or operator discovers that the
appliance is leaking above the applicable allowable annual rate. The
owner or operator identifies ten different leak sources that are
contributing to the leak rate. The owner or operator decides that
repairing six leaks will bring the appliance into compliance by
lowering the leak rate to below the applicable allowable annual rate.
The owner or operator fixes and verifies that these leaks have been
repaired consistent with the requirements promulgated at Sec.
82.156(i).
Upon later inspection, or by the future need to add refrigerant, it
is discovered that the appliance continued leaking above the applicable
allowable annual rate and there are no newly identified leak sources.
In this scenario, the owner or operator of comfort cooling or
commercial refrigeration appliances did not lower the leak rate in
accordance with Sec. 82.156(i).
As previously stated in the discussion of Scenario 3, EPA cannot
condone actions by owners or operators to knowingly allow appliances to
leak, and believes that such actions result in uncertainty concerning
compliance with the leak repair required practices. EPA considers this
failed repair attempt a violation of the leak repair required practices
because the owner or operator did not sufficiently repair the
appliance. Meaning that even after repair attempts, the appliance
continued to leak above the applicable annual leak rate. In the absence
of verification and the subsequent addition of refrigerant without the
identification of new leaks, the owner or operator of the comfort
cooling or commercial appliance is not considered to have used ``sound
professional judgement'' in determining which leaks to repair. Owners
or operators of appliances that pass mandatory initial and followup
verification tests under Sec. 82.156(i) (i.e., industrial process
refrigeration and federally-owned comfort and commercial refrigeration
appliances) are not considered to be in violation of the leak repair
required practices, as they have successfully passed initial and
followup verification tests.
e. Scenario 5
EPA received comments questioning the applicability of the
compliance scenarios to comfort cooling and commercial refrigerant
appliances. Several commenters expressed concern that current EPA
interpretation of the leak repair requirements could result in
enforcement actions when the owner has made good faith attempts to
repair all known leaks.
The commenters described a scenario in which repairs were made on
all known leaks in a commercial or comfort cooling appliance. After
this initial repair, the owner or operator discovers a new leak(s), in
a different location(s) that bring the leak rate of the appliance above
the applicable leak rate, as shown by the addition of refrigerant and
calculation of the leak rate. This second round of leaks is once again
repaired and the appliance is once again recharged with refrigerant.
The commenters questioned why the second repair and second addition of
refrigerant were viewed by EPA as continuing violations of the leak
repair provisions. Or more simply stated, commenters questioned why the
second addition of refrigerant that results in an annual leak rate
above the applicable leak rate is viewed by EPA as a continuing
violation from the first addition of refrigerant and subsequent repair.
The commenters also noted that using this interpretation of the
regulations would make it impossible for the owner or operator to know
that their appliances were in compliance until the next leak occurrence
or need for additional refrigerant. This assumes that the appliance
would have a new leak or require the addition of refrigerant. If it did
not after the initial repair, it may not be possible to know if the
appliance was brought beneath the applicable trigger rate at all.
In response to public comments, EPA is emphasizing that the
appliance owner or operator must demonstrate that the repair(s) brought
the leak rate of the appliance below the applicable annual leak rate,
in accordance with Sec. 82.156. Consecutive or continued cycles of
repair and subsequent refrigerant charges are not viewed by EPA as
compliance with the required practices. However, in the absence of
mandatory initial and followup verification, the owner or operator of
comfort cooling and commercial refrigeration appliances
[[Page 1985]]
may not realize that a repaired appliance has remained out of
compliance until the future need to add refrigerant. Therefore, until
verification tests are mandated, EPA considers leak occurrences in
commercial and comfort cooling appliances that have occurred after the
appliance was repaired in compliance with Sec. 82.156(i)(1) and (i)(5)
as ``new'' if they involve different leak(s) than the previously
repaired leak event.
Conversely, in instances where leaks continue to occur at the same
location in a commercial refrigeration or comfort cooling appliance
(meaning that the owner or operator continues to recharge after
continued repair attempts on the same leak(s)), are viewed as
violations of the leak repair provisions. EPA views patterns of futile
repair attempts to repair leaks that continue to occur at the sale
location followed by refrigerant recharge as violations of the leak
repair requirement to bring the leak rate of the appliance beneath the
applicable leak rate within 30 days of discovery. Such actions are not
viewed as attempts to comply with the leak repair requirements since
they result in an increase in refrigerant release to the atmosphere.
D. Recordkeeping for Leak Repair
Prior to the NPRM (June 11, 1998; 63 FR 32043), EPA received
comments indicating that the recordkeeping and reporting requirements
promulgated at Sec. 82.166(n) may be confusing for those subject to
the requirements. The structure of these provisions changed between the
proposed and final rules (60 FR 3992; January 19, 1995 and 60 FR 40420;
August 8, 1995). The August 8, 1995 final rule required the same
reporting and recordkeeping requirement that EPA proposed in the
January 19, 1995 NPRM, except for the changes discussed in the preamble
to the August 8, 1995 final rule.
In the 1998 NPRM, EPA proposed to modify the structure and
presentation of the requirements to provide clarity by indicating which
records must be maintained and reported. EPA also proposed to extend
the leak repair reporting and recordkeeping provisions to HFC and PFC
appliances by incorporating them into the definition of ``refrigerant''
(63 FR 32058).
1. Applicability to Substitutes
In the NPRM, EPA proposed to extend the leak repair recordkeeping
and reporting requirements for CFC and HCFC appliance owners or
operators to owners or operators of HFC and PFC appliances. The NPRM
proposed to extend these requirements by amending the definition of
``refrigerant'' to include HFC and PFC substitutes. The NPRM proposed
that owners or operators of appliances that contain 50 or more pounds
of refrigerant and leak above the applicable leak rate must adhere to
the reporting and recordkeeping records in accordance with Sec.
82.166(k), (n), (o), (p) and (q).
At this time, EPA is not finalizing the proposal to subject owners
or operators of all HFC and PFC appliances to the recordkeeping and
reporting requirements of Sec. 82.166. However, today's action extends
the recordkeeping and reporting requirements to owners or operators of
appliances that use substitutes consisting of an ODS. EPA has not
otherwise amended the recordkeeping and reporting requirements. These
requirements are summarized below:
a. General Service and Repair Recordkeeping and Reporting
In accordance with Sec. 82.166(k), owners or operators of
appliances normally containing 50 or more pounds of a refrigerant
containing a class I or class II ODS and leak above the applicable leak
rate are subject to the following recordkeeping and reporting
requirements.
(1) Keep service records documenting the date and type of service,
as well as the quantity of refrigerant added.
(2) Keep records of refrigerant purchased and dates of refrigerant
addition in instances where owners or operators service or repair their
own appliances added to such appliances in cases where owners or
operators add their own refrigerant.
b. Extension of 30-day Repair Requirement
In accordance with Sec. 82.156(i)(1)(i), if owners or operators of
the federally-owned commercial refrigeration appliances determine that
leaks cannot be repaired within 30 days and therefore seek an
extension, they must document all repair efforts and notify EPA of
their inability to comply within the 30-day repair requirement. The
notification must state the reason for the inability to comply within
the 30-day repair requirement. If EPA determines that the extension is
not justified, EPA will notify the owner or operator within 30 days of
receipt of the notification.
In accordance with Sec. 82.156(i)(2) and Sec. 82.156(i)(5)(i),
owners or operators of industrial process refrigeration appliances and
federally-owned comfort cooling and commercial refrigeration appliances
who determine that the leak rate of the appliance cannot be brought to
below 35 percent during a 12-month period within 30 days (or 120 days,
where an industrial process shutdown is required) of discovering the
leak and are granted an extension, must document all repair efforts.
They must also notify EPA of the reason for the inability to repair
within 30 days of making such a determination.
c. Notification Due to Failed Verification Test
In accordance with Sec. 82.156(i)(3)(iii), the owner or operator
of an industrial process refrigeration appliance that fails a follow-up
verification test must notify EPA within 30 days of the failed follow-
up verification test. The notification must include the dates and types
of all initial and follow-up verification tests performed and the test
results for all initial and follow-up verification tests within 30 days
after conducting each test.
d. Relief From the Obligation To Retrofit or Replace an Appliance
In accordance with Sec. 82.156(i)(3)(iv), the owner or operator of
industrial process refrigeration appliances and federally owned comfort
cooling and commercial appliances who are granted additional time to
repair are relieved of the obligation to retrofit or replace the
industrial process refrigeration appliance if second repair efforts to
fix the same leaks that were the subject of the first repair efforts
are successfully completed within 30 days (or 120 days where an
industrial process shutdown is required) after the initial failed
follow-up verification test. The owner or operator is required to
notify EPA within 30 days of the successful follow-up verification test
and is no longer subject to the obligation to retrofit or replace the
appliance.
In accordance with Sec. 82.156(i)(3)(v), the owner or operator of
industrial process refrigeration appliances must notify EPA within 30
days if the owner or operator determines that they are relieved of the
obligation to retrofit or replace appliances because within 180 days of
the initial failed follow-up verification test they established that
the appliance's annual leak rate did not exceed the applicable leak
rate (in accordance with Sec. 82.156(i)(4)). The notification must
include a plan to fix other outstanding leaks for which repairs are
planned but not yet completed to achieve a rate below the applicable
allowable leak rate. The notification must also include the
identification of the facility and date the original information
regarding additional time beyond the initial 30 days was filed. The
owner or operator would no longer be subject to the
[[Page 1986]]
obligation to retrofit or replace the appliances that arose as a
consequence of the initial failure to verify that the leak repair
efforts were successful.
The notification must be relevant to the affected appliance and
must include: Identification of the facility; the leak rate; the method
used to determine the leak rate and full charge; the date a leak rate
of greater than the allowable annual leak rate was discovered; the
location of leaks(s) to the extent determined to date; and any repair
work that has been completed thus far including the date that work was
completed. The information must also include written reasons why more
than 30 days are needed to complete the work and an estimate of when
repair work will be completed. If changes from the original estimate of
when work will be completed result in moving the completion date
forward from the date submitted to EPA, the reasons for these changes
must be documented and submitted to EPA within 30 days of discovering
the need for such a change.
e. Relief From 30-Day Repair Requirement Due to Adoption of Retrofit/
Retirement Plan
In accordance with Sec. 82.156(i)(6), owners or operators of
industrial process refrigeration and federally owned comfort cooling
and commercial appliances are not required to repair, if within 30 days
of discovering the exceedance of the applicable leak rate or within 30
days of a failed follow-up verification test in accordance with Sec.
82.156(i)(3)(ii), they develop a one-year retrofit or retirement plan
for the leaking appliance. The retirement or retrofit plan must be kept
at the site of the appliance and made available for EPA inspection upon
request. The plan must be dated and all work under the plan must be
completed within one year of the plan's date.
Similarly, in accordance with Sec. 82.156(i)(6)(i), if the owner
or operator of industrial process refrigeration and federally owned
comfort cooling and commercial appliances has attempted repair but
later decides to proceed with a plan to retrofit or retire the
appliance, they must develop a retrofit or retirement plan within 30
days of the determination to retrofit or retire the appliance and
complete the plan within one year from discovery that the leak rate
exceeded the applicable allowable leak rate.
In all cases, the written plan shall be prepared no later than 30
days after the owner or operator has determined to proceed with
retrofitting or retiring the appliance. In addition, the following
information must be maintained and is due to EPA Headquarters at the
time specified in the paragraph imposing the specific reporting
requirement, or no later than 30 days after the decision to retrofit or
retire the appliance, whichever is later:
(1) The identification of the industrial process facility;
(2) The leak rate;
(3) The method used to determine the leak rate and full charge;
(4) The date a leak rate of 35 percent or greater was discovered;
(5) The location of leaks(s) to the extent determined to date;
(6) Any repair work that has been completed thus far and the date
that the work was completed;
(7) A plan to complete the retrofit or replacement of the
appliance;
(8) The reasons why more than one year is necessary to retrofit to
replace the appliance;
(9) The date of notification to EPA; and
(10) An estimate of when retrofit or replacement work will be
completed.
If the estimated date of completion changes from the original
estimate and results in moving the date of completion forward,
documentation of the reason for these changes must be submitted within
30 days of making the determination that an extension is required along
with the date of notification to EPA regarding this change and the
estimate of when the work will be completed.
f. Additional Time for Retirement or Retrofit
In accordance with Sec. 82.156(i)(7), the owners or operators of
industrial process refrigeration appliances will be allowed additional
time to complete the retrofit or retirement of industrial process
refrigeration appliances if due to delays occasioned by the
requirements of other applicable Federal, State, or local laws or
regulations, or due to the unavailability of a suitable replacement
refrigerant with a lower ozone depletion potential. Under these
circumstances, the owner or operator of the appliance must notify EPA
within six months after the 30-day period following the discovery of an
exceedance of the 35 percent leak rate. Records necessary to allow EPA
to determine that these provisions apply and the length of time
necessary to complete the work must be submitted to EPA in accordance
with Sec. 82.166(o), as well as maintained on-site. EPA will notify
the owner or operator of its determination within 60 days of receipt
the submittal.
An additional one-year period beyond the initial one-year retrofit
period is allowed for industrial process refrigeration appliances where
the following criteria are met:
(A) The new or the retrofitted industrial process refrigerant
appliance is custom-built;
(B) The supplier of the appliance or one or more of its critical
components has quoted a delivery time of more than 30 weeks from when
the order is placed;
(C) The owner or operator notifies EPA within six months of the
expiration of the 30-day period following the discovery of an
exceedance of the 35 percent leak rate to identify the owner or
operator, describe the appliance involved, explain why more than one
year is needed, and demonstrate that the first two criteria are met in
accordance with Sec. 82.166(o); and
(D) The owner or operator maintains records that are adequate to
allow a determination that the criteria are met.
The owners or operators of industrial process refrigeration
appliances may request additional time to complete retrofitting or
retiring the appliance beyond the additional one-year period if needed
and where the initial additional one year was granted. The request
shall be submitted to EPA before the end of the ninth month of the
first additional year and shall include revisions of information
required under Sec. 82.166(o). Unless EPA objects to this request
submitted in accordance with Sec. 82.166(o) within 30 days of receipt,
it shall be deemed approved.
In accordance with Sec. 82.156(i)(8), owners or operators of
federally-owned commercial or comfort-cooling appliances will be
allowed an additional year to complete the retrofit or retirement of
the appliances if the conditions described in paragraph Sec.
82.156(i)(8)(i) of this section are met, and will be allowed one year
beyond the additional year if the conditions in paragraph Sec.
82.156(i)(8)(ii) are met.
In accordance with Sec. 82.156(i)(8)(i), up to one additional one-
year period beyond the initial one-year retrofit period is allowed for
such appliances where the following criteria are met:
(A) Due to complications presented by the Federal agency
appropriations and/or procurement process, a delivery time of more than
30 weeks from the beginning of the official procurement process is
quoted, or where the appliance is located in an area subject to
radiological contamination and creating a safe working environment will
require more than 30 weeks;
(B) The operator notifies EPA within six months of the expiration
of the 30-day period following the discovery of an exceedance of the
applicable allowable annual leak rate to identify the operator,
[[Page 1987]]
describe the appliance involved, explain why more than one year is
needed, and demonstrate that the first criterion is met in accordance
with Sec. 82.166(o); and
(C) The operator maintains records adequate to allow a
determination that the criteria are met.
In accordance with Sec. 82.156(i)(8)(ii), the owners or operators
of federally-owned commercial or comfort-cooling appliances may request
additional time to complete retrofitting, replacement or retiring such
appliances beyond the additional one-year period if needed and where
the initial additional one year was granted in accordance with
paragraph Sec. 82.156(i)(8)(i). The request shall be submitted to EPA
before the end of the ninth month of the first additional year and
shall include revisions of information earlier submitted as required
under Sec. 82.166(o). Unless EPA objects to this request submitted in
accordance with Sec. 82.166(o) within 30 days of receipt, it shall be
deemed approved.
g. Omission of Purged Refrigerant From Leak Rate Calculations
In calculating annual leak rates, purged refrigerant that is
destroyed at a verifiable destruction efficiency of 98 percent or
greater will not be counted toward the leak rate. Owners or operators
who wish to exclude purged refrigerants that are destroyed from annual
leak rate calculations must maintain records on-site to support the
amount of refrigerant claimed as sent for destruction. Records shall be
based on a monitoring strategy that provides reliable data to
demonstrate that the amount of refrigerant claimed to have been
destroyed is not greater than the amount of refrigerant actually purged
and destroyed and that the 98 percent or greater destruction efficiency
is met. Records shall include flow rate, quantity or concentration of
the refrigerant in the vent stream, and periods of purge flow.
In addition, the owners or operators who wish to exclude purged
refrigerants that are destroyed from annual leak rate calculations must
maintain on-site and submit to EPA, within 60 days after the first time
such exclusion is used by that facility, the following information:
(i) The identification of the facility and a contact person,
including the address and telephone number;
(ii) A general description of the refrigerant appliance, focusing
on aspects of the appliance relevant to the purging of refrigerant and
its subsequent destruction;
(iii) A description of the methods used to determine the quantity
of refrigerant sent for destruction and type of records that are being
kept by the owners or operators where the appliance is located;
(iv) The frequency of monitoring and data-recording; and
(v) A description of the control device, and its destruction
efficiency.
h. Determination of Full Charge
EPA has previously defined full charge as the amount of refrigerant
required for normal operating characteristics and conditions of the
appliance as determined by using one of the following four methods or a
combination of one of the following four methods: (1) The appliance
manufacturers' determination of the correct full charge for the
appliance; (2) Determining the full charge by appropriate calculations
based on component sizes, density of refrigerant, volume of piping, and
other relevant considerations; (3) The use of actual measurements of
the amount of refrigerant added or evacuated from the appliance; and/or
(4) The use of an established range based on the best available data,
regarding the normal operating characteristics and conditions for the
appliance, where the midpoint of the range will serve as the full
charge, and where records are maintained in accordance with Sec.
82.166(q).
Owners or operators choosing to determine the full charge as
defined in Sec. 82.152 of an affected appliance by using an
established range or using that methodology in combination with other
methods for determining the full charge defined in the following
information: (1) The identification of the owner or operator of the
appliance; (2) The location of the appliance; (3) The original range
for the full charge of the appliance, its midpoint, and how the range
was determined; (4) Any and all revisions of the full charge range and
how they were determined; and (5) The dates such revisions occurred.
These records are required to be maintained on-site at the facility in
which the appliance is located for a minimum of three years.
2. Retrofit/Retire Using Lower Ozone-Depleting Potential (ODP)
Refrigerants
In the NPRM, EPA proposed to amend Sec. 82.156(i)(6) to
incorporate a requirement that was discussed in the preamble to the May
14, 1993 final rule but that was inadvertently excluded from the
regulatory text. In the preamble to the final rule, EPA indicated that
if the owners or operators elect to retrofit or retire an appliance
rather than repair leaks that are above the applicable allowable leak
rate, the owners or operators must use a substitute with a lower ODP
than the original refrigerant (58 FR 28680; May 14, 1993).
EPA received comments stating that the replacement of leaking
appliances with more efficient appliances should yield significant
environmental benefits, and the Agency should not require further
environmental benefits by limiting the types of refrigerant that may be
used (i.e., requiring retrofit or replacement with a lower ODP
refrigerant). Commenters also requested that the Agency address what
the owner or operator should do when the only available substitute does
not have a lower ODP and consider exempting systems using refrigerants
with an ODP of zero.
EPA supports the use of higher efficiency appliances whenever
possible. The Agency also believes that a requirement for owners or
operators to retrofit or replace leaking appliances with a refrigerant
with a lower ODP is important to minimize the use of refrigerants that
are potentially more harmful to the stratospheric ozone layer. It would
be environmentally unsound to exempt owners or operators from repairing
leaks on the grounds that they will retrofit or replace the leaky
appliance if the replacement refrigerant would pose an equivalent or
even a greater threat to the stratospheric ozone layer. EPA also
believes that in many instances older appliances that were designed to
use ozone-depleting refrigerants (especially CFCs) are less efficient
than newer HCFC and HFC appliances that are currently available.
Therefore, EPA has modified the regulatory text to ensure that only a
substitute with a lower or equivalent ODP is used.
EPA has amended Sec. 82.156(i)(6) to incorporate the requirement
to retrofit with a lower ODP refrigerant, as originally discussed in
the preamble to the May 14, 1993 final rule (58 FR 28680). In
accordance with the amended Sec. 82.156(i)(6), owners or operators who
elect to retire or retrofit an appliance rather than repair leaks that
are above the applicable allowable leak rate, must use a refrigerant or
substitute with a lower ODP than the original refrigerant. Owners and
operators still retain the option to either retrofit/retire the
appliance or repair the existing leaks in accordance with the existing
requirements at Sec. 82.156(i)(6) for industrial process refrigeration
and Sec. Sec. 82.156(i)(1)(i), (i)(5)(i), (i)(6), and (i)(9) for
commercial refrigeration and comfort cooling appliances.
3. Minor Clarifications
EPA proposed to modify the text throughout Sec. 82.156(i) and
Sec. 82.166(n)
[[Page 1988]]
and (o) to substitute the word ``retire'' for the word ``replace'' and
to add ``operators'' where the regulation inadvertently refers solely
to owners in order to better describe the activities that are discussed
and to clarify that the requirements are applicable to both owners and
operators (63 FR 32071; June 11, 1998). EPA also proposed to modify
Sec. 82.156(i)(3) which requires owners and operators to exercise
sound professional judgement and to perform verification tests, to
clarify that it applies to all owners and operators of industrial
process refrigeration appliances and not just to those who are granted
additional time to complete repairs. At the same time, EPA proposed to
clarify that the paragraph applies to owners and operators of
federally-owned commercial refrigeration appliances and of federally-
owned comfort cooling appliances who are granted additional time to
repair under paragraphs (i)(1) and (i)(5). EPA requested comment on
these proposed changes regarding whether the changes would improve the
clarity and readability of the regulatory text. EPA received general
comments stating uncertainly with interpretation of the leak repair
required practices at Sec. 82.156 for leak repair; however, the Agency
did not receive any negative or controversial comments specific to the
request for comments concerning the proposed minor clarifications.
As proposed, EPA has modified the text throughout Sec. 82.156(i)
and Sec. 82.166(n) and (o)(4) to substitute the word ``retire'' for
the word ``replace'' and to add ``operators'' where the regulation
inadvertently refers solely to owners. EPA deems these changes as
necessary, because as explained in the NPRM the term ``retire'' better
describes the activities that are discussed and the requirements are
applicable to both appliance owners and operators.
As proposed, EPA has modified paragraph Sec. 82.156(i)(3) which
requires owners and operators to exercise sound professional judgement,
to clarify that ``sound professional judgment'' applies to all owners
and operators of industrial process refrigeration appliances,
federally-owned commercial refrigeration appliances, and federally-
owned comfort cooling appliances and not just to those who are granted
additional time under paragraphs (i)(1)(i), (i)(2)(i), and (i)(5).
EPA has made minor clarifying changes to the regulatory text at
Sec. 82.156(i)(3)(i) and (ii) by specifically stating that the
requirements apply to owners and or operators of federally-owned
comfort cooling and commercial appliances. EPA has also specifically
stated, in Sec. 82.156(i)(3)(i), that the exemption from the
verification requirement is applicable in instances when the owners or
operators will retrofit or retire the industrial process refrigeration
equipment, federally-owned commercial refrigeration appliance, or
federally-owned comfort cooling appliance (formerly included only by
reference to paragraph (i)(6)).
In addition, EPA has amended Sec. 82.156(i)(3)(ii) and (i)(6)(i)
to provide owners and operators of industrial process refrigeration
appliances, federally-owned commercial refrigeration appliances, or
federally-owned comfort cooling appliances who have been unsuccessful
in their repair attempts, and therefore are switching to a retrofit/
retirement mode, 30 days from leak discovery to prepare and one year to
execute a retrofit/retirement plan. EPA recognizes the need to provide
the owners or operators with sufficient time to develop and implement
retrofit or retirement plans; therefore, the reference to the date of
the failure to verify that repairs have been successfully completed has
been eliminated. By deleting this reference, owners or operators have
30 days from the verification test failure to develop a retrofit/
retirement plan, and one year from the plan's date to complete the
retrofit or retirement (or such longer time periods as may apply under
Sec. 82.156(i)(7) and (i)(8)). In addition, EPA has added the term
``comfort cooling'' to Sec. 82.156(i)(5) to remove any ambiguity as to
the type of appliance that is applicable to this subparagraph.
EPA has also made minor changes to the reporting and recordkeeping
requirements throughout Sec. 82.166(n) and (q). EPA has clarified that
the reporting requirements of paragraphs (n), (n)(1), (n)(2), and
(n)(3) are only required when specified under Sec. 82.156. EPA has
restated the required contents of retrofit or retirement plans
throughout Sec. 82.166(n). EPA has also clarified Sec. 82.166(q) by
stating that owners or operators who choose to determine the ``full
charge,'' as defined at Sec. 82.152, of an appliance by using an
established range or using that methodology in combination with other
methods for determining the full charge must maintain the specified
information identifying the appliance and the methodology used to
determine the ``full charge.''
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735 (October 4, 1993)) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to Executive Order 12866 review.
B. Paperwork Reduction Act
The Office of Management and Budget (OMB) has previously approved
the information collection requirements contained in the existing
regulations at 40 CFR part 82, subpart F under the provisions of the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB
Control Number 2060-0256, EPA ICR number 1626.07. A copy of the OMB
approved Information Collection Request (ICR) may be obtained from
Susan Auby, Collection Strategies Division; U.S. Environmental
Protection Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC
20460 or by calling (202) 566-1672. This action does not impose any new
information collection burden beyond the already-approved ICR. This
final rule amends the leak repair reporting and recordkeeping
requirements of Sec. 82.166, without imposing additional requirements.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop,
[[Page 1989]]
acquire, install, and utilize technology and systems for the purposes
of collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements; train personnel to be able to respond to
a collection of information; search data sources; complete and review
the collection of information; and transmit or otherwise disclose the
information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
EPA has determined that it is not necessary to prepare a regulatory
flexibility analysis in connection with this final rule. For purposes
of assessing the impacts of today's rule on small entities, small
entity is defined as: (1) A small business as defined by the Small
Business Administration's regulations at 13 CFR 121.201; (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
EPA is finalizing this rule to clarify how the leak repair
requirements that implement the venting prohibition of Clean Air Act,
section 608(c)(2) apply to substitutes for class I and class II ODS
used in the refrigerant and air-conditioning appliances. The need for
and the goal of this action is to reduce emissions of class I and class
II ODS and their substitutes to the lowest achievable level consistent
with section 608 of the Clean Air Act. Public comments submitted in
response to the June 11, 1998 NPRM (63 FR 32043) raised concerns over
the regulation of substitutes that do not contribute to the depletion
of stratospheric ozone, and the extension of the leak repair
requirements to appliances using such substitutes. Commenters also
requested clarification of compliance scenarios that were presented in
the NPRM.
As discussed in detail above, EPA is not finalizing the proposed
changes to lower the leak rate and extend the requirements to
appliances using substitutes that do not contain an ODS. EPA has also
made editorial changes to clarify the compliance scenarios without
changing their applicability, in order to remain consistent with the
leak repair required practices. Therefore, the remainder of this rule
results in a clarification of the existing leak repair requirements as
they apply to substitutes that consist of an ODS.
EPA performed a detailed screening analysis in 1992 of the impact
of the recycling regulation for ozone-depleting refrigerants on small
entities that may be impacted by this rulemaking such as owners or
operators of commercial refrigeration appliances (such as, small
independent grocers and warehouses), comfort cooling appliances (such
as small residential and office buildings), and industrial process
refrigeration appliances. The methodology of this analysis is discussed
at length in the May 14, 1993 regulation (58 FR 28710). That analysis
showed that recovery of refrigerants during repair is cost-effective
due in part to the increased cost of ozone-depleting refrigerants.
EPA has updated that analysis to examine the impact of the
recycling regulation for substitutes for all aspects of the June 11,
1998 NPRM (63 FR 32044). EPA is finalizing the NPRM in three separate
actions (i.e., venting prohibition and substitutes sales restriction
(69 FR 11946; March 12, 2004), certification of refrigerant recovery
and recycling equipment, and leak repair requirements). The methodology
for the updated analysis is the same as for the initial 1992 analysis,
except EPA has also considered the changing market share of HFC
equipment and compliance with the venting prohibition that would occur
in the absence of the rule. This approach makes the screening analysis
more consistent with the cost-benefit analysis discussed above. In the
updated screening analysis, EPA estimates that 118 small businesses may
incur compliance costs in excess of 1% of their sales, while 39 small
businesses may incur compliance costs in excess of 3% of their sales
for all aspects of the refrigerant recovery and recycling rule when
taking all aspects of the rule under consideration (i.e., venting
prohibition and sales restriction, refrigerant recycling and recovery
equipment, and leak repair requirements). These numbers respectively
represent 0.1% and 0.03% of the 122,416 small businesses that EPA
estimates are affected by finalization of all three components of the
NPRM.
EPA has concluded that when isolating portions of the analysis
dealing with the clarification of the leak repair requirements for
appliances using substitutes consisting of an ODS, that today's
rulemaking will not have a significant economic impact on a substantial
number of small entities. Since this rule does not finalize the
proposal to extend the leak repair reporting and recordkeeping
requirements, as summarized above in Section D. ``Recordkeeping for
Leak Repair,'' to appliances containing 50 pounds or more of a non-ODS
substitutes, the remainder of this rule is viewed as a clarification of
how the leak repair requirements for ODS refrigerants apply to
appliances using ODS substitutes. With this rulemaking EPA is stating
that regulations affecting appliances using ODSs apply to refrigerants
and substitutes alike, if they consist whole or in part of an ODS. In
addition, it is assumed that ODS substitutes are replacing refrigerants
whose manufacture and import is banned, restricted, or currently
undergoing phaseout under the EPA phaseout regulations (40 CFR 82, part
82 subpart A). Therefore EPA assumes an impact of less than 1% upon
owners or operators of appliances with refrigerant charges of 50 pounds
or more, including the 0.1% and 0.03% of the 122,416 small businesses
that EPA estimates would have been affected by finalizing all three
components of the NPRM.
Although this final rule will not have a significant economic
impact on a substantial number of small entities, EPA nonetheless has
tried to reduce the impact of this rule on small entities. EPA has made
numerous efforts to involve small entities in the rulemaking process
and to incorporate flexibility into the proposed rule for small
entities, where appropriate. Efforts to involve small entities include
formal and informal stakeholder meetings, which included several trade
groups representing small businesses, and a number of individual
meetings with both small businesses and associations representing small
businesses. EPA has also met with industry groups representing the
commercial grocery and supermarket sectors. EPA has accepted and
considered all comments and suggestions from trade organizations in
finalizing this rule, regardless if the comments were received outside
of the comment period. EPA has also developed outreach materials,
including fact sheets which are available online and via the Ozone
Hotline, to help small businesses to comply with the existing
refrigerant recycling regulations and the prohibition on venting of
both ozone-depleting refrigerants and their substitutes. Moreover, the
proposed rule grants to small businesses working with
[[Page 1990]]
substitutes the same flexibility that was granted to small businesses
working with CFC and HCFC refrigerants (58 FR 28667-28669, 28712).
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government Agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
EPA has determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and tribal governments, in the aggregate, or the private
sector in any one year. This rule is not expected to have a high cost
because it supplements the statutory self-effectuating prohibition
against venting refrigerants by ensuring that certain service practices
are conducted that reduce emissions of ozone-depleting refrigerants and
their substitutes. Thus, today's rule is not subject to the
requirements of sections 202 and 205 of the UMRA. EPA has also
determined that this rule contains no regulatory requirements that
might significantly or uniquely affect small governments. Thus, today's
rule is not subject to the requirements of section 203 of the UMRA.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This final rule does not have federalism implications. It will not
have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. Thus, Executive Order 13132 does
not apply to this rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This final rule does not have
tribal implications, as specified in Executive Order 13175. Today's
rule does not significantly or uniquely affect the communities of
Indian tribal governments. Thus, Executive Order 13175 does not apply
to this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health & Safety Risks
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This final rule is not subject to the Executive Order because it is
not economically significant as defined in Executive Order 12866, and
because the Agency does not have reason to believe the environmental
health or safety risks addressed by this action present a
disproportionate risk to children. This rule amends the leak repair
requires for appliances using substitutes consisting of an ozone-
depleting substance, which in turn protects human health and the
environment from increased amounts of UV radiation and increased
incidence of skin cancer.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355; May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.
I. National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards. This
rulemaking does not involve technical standards; therefore, EPA did not
consider the use of any voluntary consensus standards in this
rulemaking.
J. The Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the Agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the
[[Page 1991]]
Congress and to the Comptroller General of the United States. EPA will
submit a report containing this rule and other required information to
the U.S. Senate, the U.S. House of Representatives, and the Comptroller
General of the United States prior to publication of the rule in the
Federal Register. A major rule cannot take effect until 60 days after
it is published in the Federal Register. This action is not a ``major
rule'' as defined by 5 U.S.C. 804(2). It will become effective March
14, 2005.
List of Subjects in 40 CFR Part 82
Environmental protection, Air pollution control, Reporting and
recordkeeping requirements.
Dated: December 29, 2004.
Michael O. Leavitt,
Administrator.
0
For the reasons stated in the preamble, title 40, chapter I, part 82,
of the Code of Federal Regulations is amended as follows:
PART 82--[AMENDED]
0
1. The authority citation for part 82 continues to read as follows:
Authority: 42 U.S.C. 7414, 7601, 7671-7671q.
0
2. Section 82.152 is amended by revising the definition of ``Full
charge'' and by adding a definition for ``Leak rate'' in alphabetical
order to read as follows:
Sec. 82.152 Definitions.
* * * * *
Full charge means the amount of refrigerant required for normal
operating characteristics and conditions of the appliance as determined
by using one or a combination of the following four methods:
(1) Use the equipment manufacturer's determination of the correct
full charge for the equipment;
(2) Determine the full charge by making appropriate calculations
based on component sizes, density of refrigerant, volume of piping, and
other relevant considerations;
(3) Use actual measurements of the amount of refrigerant added or
evacuated from the appliance; and/or
(4) Use an established range based on the best available data
regarding the normal operating characteristics and conditions for the
appliance, where the midpoint of the range will serve as the full
charge, and where records are maintained in accordance with Sec.
82.166(q).
* * * * *
Leak rate means the rate at which an appliance is losing
refrigerant, measured between refrigerant charges. The leak rate is
expressed in terms of the percentage of the appliance's full charge
that would be lost over a 12-month period if the current rate of loss
were to continue over that period. The rate is calculated using only
one of the following methods for all appliances located at an operating
facility.
(1) Method 1. (i) Step 1. Take the number of pounds of refrigerant
added to the appliance to return it to a full charge and divide it by
the number of pounds of refrigerant the appliance normally contains at
full charge;
(ii) Step 2. Take the shorter of the number of days that have
passed since the last day refrigerant was added or 365 days and divide
that number by 365 days;
(iii) Step 3. Take the number calculated in Step 1. and divide it
by the number calculated in Step 2.; and
(iv) Step 4. Multiply the number calculated in Step 3. by 100 to
calculate a percentage. This method is summarized in the following
formula:
[GRAPHIC] [TIFF OMITTED] TR11JA05.010
(2) Method 2. (i) Step 1. Take the sum of the quantity of
refrigerant added to the appliance over the previous 365-day period (or
over the period that has passed since leaks in the appliance were last
repaired, if that period is less than one year),
(ii) Step 2. Divide the result of Step 1. by the quantity (e.g.,
pounds) of refrigerant the appliance normally contains at full charge,
and
(iii) Step 3. Multiply the result of Step 2. by 100 to obtain a
percentage. This method is summarized in the following formula:
[GRAPHIC] [TIFF OMITTED] TR11JA05.011
* * * * *
0
3. Section 82.156 is amended by revising paragraphs (i)(3) introductory
text, (i)(3)(i), (i)(3)(ii), (i)(5) introductory text, (i)(6)
introductory text, and (i)(6)(i), to read as follows:
Sec. 82.156 Required practices.
* * * * *
(i) * * *
(3) Owners or operators of industrial process refrigeration
equipment and owners or operators of federally-owned commercial
refrigeration equipment or of federally-owned comfort cooling
appliances who are granted additional time under paragraphs (i)(1) or
(i)(5) of this section, must have repairs performed in a manner that
sound professional judgment indicates will bring the leak rate below
the applicable allowable leak rate. When an industrial process shutdown
has occurred or when repairs have been made while an appliance is
mothballed, the owners or operators shall conduct an initial
verification test at the conclusion of the repairs and a follow-up
verification test. The follow-up verification test shall be conducted
within 30 days of completing the repairs or within 30 days of bringing
the appliance back on-line, if taken off-line, but no sooner than when
the appliance has achieved normal operating characteristics and
conditions. When repairs have been conducted without an industrial
process shutdown or system mothballing, an initial verification test
shall be conducted at the conclusion of the repairs, and a follow-up
verification test shall be conducted within 30 days of the initial
[[Page 1992]]
verification test. In all cases, the follow-up verification test shall
be conducted at normal operating characteristics and conditions, unless
sound professional judgment indicates that tests performed at normal
operating characteristics and conditions will produce less reliable
results, in which case the follow-up verification test shall be
conducted at or near the normal operating pressure where practicable,
and at or near the normal operating temperature where practicable.
(i) If the owners or operators of industrial process refrigeration
equipment takes the appliance off-line, or if the owners or operators
of federally-owned commercial refrigeration or of federally-owned
comfort cooling appliances who are granted additional time under
paragraphs (i)(1) or (i)(5) of this section take the appliance off-
line, they cannot bring the appliance back on-line until an initial
verification test indicates that the repairs undertaken in accordance
with paragraphs (i)(1)(i), (ii), (iii), or (i)(2)(i) and (ii), or
(5)(i), (ii), and (iii) of this section have been successfully
completed, demonstrating the leak or leaks are repaired. The owners or
operators of the industrial process refrigeration equipment, federally-
owned commercial refrigeration appliances, or federally-owned comfort
cooling appliances are exempted from this requirement only where the
owners or operators will retrofit or retire the industrial process
refrigeration equipment, federally-owned commercial refrigeration
appliance, or federally-owned comfort cooling appliance in accordance
with paragraph (i)(6) of this section. Under this exemption, the owner
or operators may bring the industrial process refrigeration equipment,
federally-owned commercial refrigeration appliance, or federally-owned
comfort cooling appliance back on-line without successful completion of
an initial verification test.
(ii) If the follow-up verification test indicates that the repairs
to industrial process refrigeration equipment, federally-owned
commercial refrigeration equipment, or federally-owned comfort cooling
appliances have not been successful, the owner or operator must
retrofit or retire the equipment in accordance with paragraph (i)(6)
and any such longer time period as may apply under paragraphs
(i)(7)(i), (ii) and (iii) or (i)(8)(i) and (ii) of this section. The
owners and operators of the industrial process refrigeration equipment,
federally-owned commercial refrigeration equipment, or federally-owned
comfort cooling appliances are relieved of this requirement if the
conditions of paragraphs (i)(3)(iv) and/or (i)(3)(v) of this section
are met.
* * * * *
(5) Owners or operators of comfort cooling appliances normally
containing more than 50 pounds of refrigerant and not covered by
paragraph (i)(1) or (i)(2) of this section must have leaks repaired in
accordance with paragraph (i)(9) of this section if the appliance is
leaking at a rate such that the loss of refrigerant will exceed 15
percent of the total charge during a 12-month period, except as
described in paragraphs (i)(6), (i)(8) and (i)(10) of this section and
paragraphs (i)(5)(i), (i)(5)(ii) and (i)(5)(iii) of this section.
Repairs must bring the annual leak rate to below 15 percent.
* * * * *
(6) Owners or operators are not required to repair leaks as
provided in paragraphs (i)(1), (i)(2), and (i)(5) of this section if,
within 30 days of discovering a leak greater than the applicable
allowable leak rate, or within 30 days of a failed follow-up
verification test, or after making good faith efforts to repair the
leaks as described in paragraph (i)(6)(i) of this section, they develop
a one-year retrofit or retirement plan for the leaking appliance.
Owners or operators who decide to retrofit the appliance must use a
refrigerant or substitute with a lower or equivalent ozone-depleting
potential than the previous refrigerant and must include such a change
in the retrofit plan. Owners or operators who retire and replace the
appliance must replace the appliance with an appliance that uses a
refrigerant or substitute with a lower or equivalent ozone-depleting
potential and must include such a change in the retirement plan. The
retrofit or retirement plan (or a legible copy) must be kept at the
site of the appliance. The original plan must be made available for EPA
inspection upon request. The plan must be dated, and all work performed
in accordance with the plan must be completed within one year of the
plan's date, except as described in paragraphs (i)(6)(i), (i)(7), and
(i)(8) of this section. Owners or operators are temporarily relieved of
this obligation if the appliance has undergone system mothballing as
defined in Sec. 82.152.
(i) If the owner or operator has made good faith efforts to repair
leaks from the appliance in accordance with paragraphs (i)(1), (i)(2),
or (i)(5) of this section and has decided prior to completing a follow-
up verification test, to retrofit or retire the appliance in accordance
with paragraph (i)(6) of this section, the owner or operator must
develop a retrofit or retirement plan within 30 days of the decision to
retrofit or retire the appliance. The owner or operator must complete
the retrofit or retirement of the appliance within one year and 30 days
of when the owner or operator discovered that the leak rate exceeded
the applicable allowable leak rate, except as provided in paragraphs
(i)(7) and (i)(8) of this section.
* * * * *
0
10. Section 82.166 is amended by revising paragraphs (n), (o)(4),
(o)(7), (o)(8), (o)(10), and paragraph (q) introductory text to read as
follows:
Sec. 82.166 Reporting and recordkeeping requirements.
* * * * *
(n) The owners or operators of appliances must maintain on-site and
report to EPA Headquarters at the address listed in Sec. 82.160 the
information specified in paragraphs (n)(1), (n)(2), and (n)(3) of this
section, within the timelines specified under Sec. 82.156 (i)(1),
(i)(2), (i)(3) and (i)(5) where such reporting or recordkeeping is
required. This information must be relevant to the affected appliance.
(1) An initial report to EPA under Sec. 82.156(i)(1)(i), (i)(2),
or (i)(5)(i) regarding why more than 30 days are needed to complete
repairs must include: Identification of the facility; the leak rate;
the method used to determine the leak rate and full charge; the date a
leak rate above the applicable leak rate was discovered; the location
of leak(s) to the extent determined to date; any repair work that has
been completed thus far and the date that work was completed; the
reasons why more than 30 days are needed to complete the work and an
estimate of when the work will be completed. If changes from the
original estimate of when work will be completed result in extending
the completion date from the date submitted to EPA, the reasons for
these changes must be documented and submitted to EPA within 30 days of
discovering the need for such a change.
(2) If the owners or operators intend to establish that the
appliance's leak rate does not exceed the applicable allowable leak
rate in accordance with Sec. 82.156(i)(3)(v), the owner or operator
must submit a plan to fix other outstanding leaks for which repairs are
planned but not yet completed to achieve a rate below the applicable
allowable leak rate. A plan to fix other outstanding leaks in
accordance with Sec. 82.156(i)(3)(v) must include the following
information: The identification of the facility; the leak rate; the
method used to determine the leak rate and full charge; the date a leak
[[Page 1993]]
rate above the applicable allowable leak rate was discovered; the
location of leak(s) to the extent determined to date; and any repair
work that has been completed thus far, including the date that work was
completed. Upon completion of the repair efforts described in the plan,
a second report must be submitted that includes the date the owner or
operator submitted the initial report concerning the need for
additional time beyond the 30 days and notification of the owner or
operator's determination that the leak rate no longer exceeds the
applicable allowable leak rate. This second report must be submitted
within 30 days of determining that the leak rate no longer exceeds the
applicable allowable leak rate.
(3) Owners or operators must maintain records of the dates, types,
and results of all initial and follow-up verification tests performed
under Sec. 82.156(i)(3). Owners or operators must submit this
information to EPA within 30 days after conducting each test only where
required under Sec. 82.156 (i)(1), (i)(2), (i)(3) and (i)(5). These
reports must also include: Identification and physical address of the
facility; the leak rate; the method used to determine the leak rate and
full charge; the date a leak rate above the applicable allowable leak
rate was discovered; the location of leak(s) to the extent determined
to date; and any repair work that has been completed thus far and the
date that work was completed. Submitted reports must be dated and
include the name of the owner or operator of the appliance, and must be
signed by an authorized company official.
* * * * *
(o) * * *
(4) The date a leak rate above the applicable allowable rate was
discovered.
* * * * *
(7) A plan to complete the retrofit or retirement of the system;
(8) The reasons why more than one year is necessary to retrofit or
retire the system;
* * * * *
(10) An estimate of when retrofit or retirement work will be
completed. If the estimated date of completion changes from the
original estimate and results in extending the date of completion, the
owner or operator must submit to EPA the new estimated date of
completion and documentation of the reason for the change within 30
days of discovering the need for the change, and must retain a dated
copy of this submission.
* * * * *
(q) Owners or operators choosing to determine the full charge as
defined in Sec. 82.152 of an affected appliance by using an
established range or using that methodology in combination with other
methods for determining the full charge as defined in Sec. 82.152 must
maintain the following information:
* * * * *
[FR Doc. 05-429 Filed 1-10-05; 8:45 am]
BILLING CODE 6560-50-P