Protection of Stratospheric Ozone: Update to the Refrigerant Management Requirements Under the Clean Air Act

Federal RegisterNov 18, 2016

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[EPA-HQ-OAR-2015-0453; FRL-9950-28-OAR]

RIN 2060-AS51

Protection of Stratospheric Ozone: Update to the Refrigerant Management Requirements Under the Clean Air Act

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Clean Air Act prohibits the knowing release of ozone-depleting and substitute refrigerants during the course of maintaining, servicing, repairing, or disposing of appliances or industrial process refrigeration. The existing regulations require that persons maintaining, servicing, repairing, or disposing of air-conditioning and refrigeration equipment containing more than 50 pounds of refrigerant observe certain service practices that reduce emissions of ozone-depleting refrigerant. This rule updates those existing requirements as well as extends them, as appropriate, to non-ozone depleting substitute refrigerants, such as hydrofluorocarbons. Updates include strengthened leak repair requirements, recordkeeping requirements for the disposal of appliances containing more than five and less than 50 pounds of refrigerant, revisions to the technician certification program, and revisions for improved readability and compliance. As a result, this action reduces emissions of ozone-depleting substances and gases with high global warming potentials.

DATES:

This final rule is effective on January 1, 2017. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of on January 1, 2017. This rule contains information collection activities that have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). Under the PRA, comments on the information collection provisions are best assured of consideration if the Office of Management and Budget (OMB) receives a copy of your comments on or before December 19, 2016.

ADDRESSES:

The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2015-0453. All documents in the docket are listed on the

www.regulations.go

v Web site. Although listed in the index, some information is not publicly available,

e.g.,

CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available electronically through

www.regulations.gov

FOR FURTHER INFORMATION CONTACT:

Jeremy Arling, Stratospheric Protection Division, Office of Atmospheric Programs, Mail Code 6205T, 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone number (202) 343-9055; email address

arling.jeremy@epa.gov.

You may also visit

www.epa.gov/section608

for further information about refrigerant management, other Stratospheric Ozone Protection regulations, the science of ozone layer depletion, and related topics.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. General Information

A. Does this action apply to me?

B. What action is the Agency taking?

C. What is the Agency's authority for taking this action?

D. What are the incremental costs and benefits of this action?

E. Judicial Review

II. Background

A. What are ozone-depleting substances?

B. What is the National Recycling and Emission Reduction Program?

C. What developments have occurred since EPA first established the National Recycling and Emission Reduction Program?

D. What are the goals of this rule?

E. What are the major revisions being finalized in this rule?

F. Enforcement of Subpart F Regulations

G. Incorporation by Reference

III. EPA's Authority Under the Clean Air Act

A. Summary of EPA's Authority for the Revisions to Subpart F

B. Comments and Responses Related to EPA's Authority

IV. The Revisions Finalized in This Rule

A. Revisions to the Definitions in § 82.152

B. Revisions to the Venting Prohibition in § 82.154(a)

C. Revisions to the Refrigerant and Appliance Sales Restrictions in § 82.154

D. Revisions to the Safe Disposal Provisions in § 82.155

E. Revisions to the Evacuation Requirements in § 82.156

F. Revisions to the Leak Repair Requirements in § 82.157

G. Revisions to the Standards for Recovery and/or Recycling Equipment in § 82.158

H. Revisions to the Standards for Equipment Testing Organizations in § 82.160

I. Revisions to the Technician Certification Requirements in § 82.161

J. Revisions to the Technician Certification Program Requirements in § 82.161

K. Revisions to the Reclamation Requirements in § 82.164

L. Revisions to the Recordkeeping and Reporting Requirements in § 82.166

M. Effective and Compliance Dates

V. Possible Future Revisions to Subpart F

VI. Economic Analysis

VII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act (RFA)

D. Unfunded Mandates Reform Act (UMRA)

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 and Safety Risks

H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

I. National Technology Transfer and Advancement Act

J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

K. Congressional Review Act (CRA)

List of Acronyms

AHRI Air Conditioning, Heating, and Refrigeration Institute

ARI Air Conditioning and Refrigeration Institute (now AHRI)

ASHRAE American Society of Heating, Refrigerating and Air-Conditioning Engineers, Inc.

CAA Clean Air Act

CARB California Air Resources Board

CBI Confidential Business Information

CFC Chlorofluorocarbon

Carbon Dioxide

GHG Greenhouse Gas

GWP Global Warming Potential

HCFC Hydrochlorofluorocarbon

HFC Hydrofluorocarbon

HFO Hydrofluoroolefin

IPCC Intergovernmental Panel on Climate Change

IPR Industrial Process Refrigeration

MMTCO

eq Million Metric Tons Carbon Dioxide Equivalent

MVAC Motor Vehicle Air Conditioner

NAICS North American Industry Classification System

ODP Ozone depletion potential

ODS Ozone-depleting substance

PFC Perfluorocarbon

RCRA Resource Conservation and Recovery Act

RMP Refrigerant Management Program

SCAQMD South Coast Air Quality Management District

SNAP Significant New Alternatives Policy

UL Underwriters Laboratories

I. General Information

A. Does this action apply to me?

Categories and entities potentially regulated by this action include those who own, operate, maintain, service, repair, recycle, or dispose of refrigeration and air-conditioning appliances and refrigerants, as well as entities that manufacture or sell refrigerants, products and services for the refrigeration and air-conditioning industry, including motor vehicle air conditioning. Regulated entities include, but are not limited to, the following:

Table 1—Potentially Affected Entities

Category

North American industry

classification system

(NAICS) code

Examples of regulated entities

Industrial Process Refrigeration (IPR)

111, 11251, 11511, 21111, 2211, 2212, 2213, 311, 3121, 3221, 3222, 32311, 32411, 3251, 32512, 3252, 3253, 32541, 3256, 3259, 3261, 3262, 3324, 3328, 33324, 33341, 33361, 3341, 3344, 3345, 3346, 3364, 33911, 339999

Owners or operators of refrigeration equipment used in agriculture and crop production, oil and gas extraction, ice rinks, and the manufacture of frozen food, dairy products, food and beverages, ice, petrochemicals, chemicals, machinery, medical equipment, plastics, paper, and electronics

Commercial Refrigeration

42374, 42393, 42399, 4242, 4244, 42459, 42469, 42481, 42493, 4451, 4452, 45291, 48422, 4885, 4931, 49312, 72231

Owners or operators of refrigerated warehousing and storage facilities, supermarkets, grocery stores, warehouse clubs, supercenters, convenience stores, and refrigerated transport

Comfort Cooling

45211, 45299, 453998, 512, 522, 524, 531, 5417, 551, 561, 6111, 6112, 6113, 61151, 622, 7121, 71394, 721, 722, 813, 92

Owners or operators of air-conditioning equipment used in the following: hospitals, office buildings, colleges and universities, metropolitan transit authorities, real estate rental & leased properties, lodging and food services, property management, schools, and public administration or other public institutions

Plumbing, Heating, and Air-Conditioning Contractors

238220, 811111, 81131, 811412

Plumbing, heating, and air-conditioning contractors, and refrigerant recovery contractors, including automotive repair

Manufacturers and Distributors of Small Cans of Refrigerant

325120, 441310, 447110

Automotive parts and accessories stores and industrial gas manufacturers

Reclaimers

325120, 423930, 424690, 562920, 562212

Industrial gas manufacturers, recyclable material merchant wholesalers, materials recovery facilities, solid waste landfills, and other chemical and allied products merchant wholesalers

Disposers and Recyclers of Appliances

423990, 562212, 562920

Materials recovery facilities, solid waste landfills, and other miscellaneous durable goods merchant wholesalers

Refrigerant Wholesalers

325120, 42, 424690

Industrial gas manufacturers, other chemical and allied products merchant wholesalers, wholesale trade

Certifying Organizations

541380

Environmental test laboratories and services

This table is not intended to be exhaustive, but rather provides a guide for readers regarding the types of entities that could potentially be regulated by this action. Other types of entities not listed in the table could also be affected. To determine whether your facility, company, business organization, or other entity is regulated by this action, you should carefully examine the regulations in subpart F and this rule. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the

FOR FURTHER INFORMATION CONTACT

section.

B. What action is the Agency taking?

The regulations in 40 CFR part 82, subpart F (subpart F) that are in effect before this final action takes effect (often referred to in this notice as the “prior” or “previous” regulations) require that persons servicing, maintaining, repairing, or disposing of air-conditioning and refrigeration equipment observe certain service practices that reduce emissions of ozone-depleting refrigerant. Specifically, these provisions include: Restricting the servicing of appliances and the sale of refrigerant to certified technicians; specifying the proper evacuation levels before opening an appliance; requiring the use of certified refrigerant recovery and/or recycling equipment; requiring the maintenance and repair of appliances that meet size and leak rate thresholds; requiring that refrigerant be removed from appliances prior to disposal; requiring that appliances have a servicing aperture or process stub to facilitate refrigerant recovery; requiring that refrigerant reclaimers be certified in order to reclaim and sell used refrigerant; and establishing standards for technician certification programs, recovery equipment, and quality of reclaimed refrigerant.

This rule updates the prior refrigerant management requirements in subpart F that apply to ozone-depleting refrigerants. It also extends those requirements, as appropriate, to non-ozone depleting substitute refrigerants that are not exempt from the venting prohibition, including but not limited to hydrofluorocarbons (HFCs), in order to interpret, explain, and enforce the venting prohibition.

C. What is the Agency's authority for taking this action?

Section 608 of the CAA provides EPA authority for these revisions to the regulations found at 40 CFR part 82, subpart F. EPA's authority for this rulemaking is supplemented by section 301(a), which provides authority to “prescribe such regulations as are necessary to carry out [the EPA Administrator's] functions under this Act,” and section 114, which provides authority for the EPA Administrator to require recordkeeping and reporting in carrying out any provision of the CAA (with certain exceptions that do not apply here). More detail on EPA's authority for this action is provided in subsequent sections.

D. What are the incremental costs and benefits of this action?

The revisions in this rule require certain businesses to take actions that have associated costs, such as conducting leak inspections, repairing leaks, and keeping records. Total annual incremental compliance costs associated with this rule are estimated to be $24.5 million per year in 2014 dollars using a 7 percent discount rate. Costs were modeled for a single typical year in which all the requirements were in effect, based on the appliance distribution modeled for 2015. Total annual operating savings associated with reduced refrigerant use are estimated to be $44 million; thus incremental compliance costs and refrigerant savings combined are estimated to be approximately $19.5 million per year. A detailed description of the comments received on the proposed analysis can be found in Section VI of this preamble as well as the response to comments document found in the docket. A full description of the technical analysis can be found in the document

Analysis of the Economic Impact and Benefits of Final Revisions to the National Recycling and Emission Reduction Program

in the docket.

EPA estimates that this rule will prevent damage to the stratospheric ozone layer by reducing emissions of ozone-depleting refrigerants by approximately 114 metric tons per year, weighted by the ozone-depletion potential (ODP) of the gases emitted. Avoided emissions of ozone-depleting refrigerants and non-ozone depleting substitutes will also reduce climate impacts because most of these refrigerants are potent greenhouse gases. Weighted by their global warming potentials (GWP)

, EPA estimates that the revisions will prevent annual emissions of greenhouse gases equivalent to 7.3 million metric tons of carbon dioxide (MMTCO

eq). The reductions in emissions of GHGs and ODS have benefits for human health and the environment because of the threats these substances pose to human health and the environment. Such threats are discussed further in Section II.D of this notice.

Unless otherwise stated, GWPs stated in this document are 100-year integrated GWPs, relative to a GWP of 1 for carbon dioxide, as reported in IPCC, 2007.

Climate Change 2007: The Physical Science Basis. Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change

[Solomon, S., D. Qin, M. Manning, Z. Chen, M. Marquis, K.B. Averyt, M. Tignor and H.L. Miller (eds.)]. Cambridge University Press, Cambridge, United Kingdom and New York, NY, USA. This document is accessible at

www.ipcc.ch/publications_and_data/ar4/wg1/en/contents.html

. For blends of multiple compounds, we are weighting the GWP of each component by mass percentage in the blend.

Table 2—Annual GHG and ODS Emissions Avoided

Rule component

GHG emissions avoided

(MTCO

eq)

HFC

ODS

Total

ODS

emissions

avoided

(ODP-

weighted

MT)

ODS

Leak Repair and Inspection

Comfort Cooling

1,425,000

2,487,000

3,912,000

Commercial Refrigeration

1,246,000

1,077,000

2,323,000

IPR

275,000

169,000

444,000

Reporting & Recordkeeping

Self-sealing Valves on Small Cans

657,000

Total

3,603,000

3,733,000

7,336,000

114

Totals may not sum due to independent rounding.

Details of the methods used to estimate the benefits are discussed in Section VI of this notice and the

Analysis of the Economic Impact and Benefits of Final Revisions to the National Recycling and Emission Reduction Program

in the docket.

E. Judicial Review

Under CAA section 307(b)(1), judicial review of this final action is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by January 17, 2017. This final action is a nationally applicable regulation and has nationwide scope and effect because it makes revisions to the EPA's regulations for the National Recycling and Emission Reduction Program found at 40 CFR part 82, subpart F, which are nationally applicable regulations that have nationwide scope and effect. Under CAA section 307(d)(7)(B), only an objection to this final action that was raised with reasonable specificity during the period for public comment can be raised during judicial review. This section also provides a mechanism for EPA to convene a proceeding for reconsideration, “[i]f the person raising an objection can demonstrate to [EPA] that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of this rule.” Any person seeking to make such a demonstration to us should submit a Petition for Reconsideration to the Office of the Administrator, Environmental Protection Agency, Room 3000, William Jefferson Clinton Building, 1200 Pennsylvania Ave. NW., Washington, DC 20460, with a copy to the person listed in the preceding

FOR FURTHER INFORMATION CONTACT

section, and the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344-A), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460.

II. Background

A. What are ozone-depleting substances?

The stratospheric ozone layer protects life on Earth from the sun's harmful ultraviolet (UV) radiation. ODS are generally man-made chemicals that, when transported by winds into the stratosphere, release chlorine or bromine and damage that protective ozone layer. ODS are used as refrigerants, solvents, foam blowing

agents, aerosol propellants, fire suppression agents, and in other smaller applications. The Clean Air Act divides ODS into two categories: Class I and class II substances. The production of new class I ODS, which includes chlorofluorocarbons (CFCs), methyl chloroform, carbon tetrachloride, halons, and other compounds has been banned for over a decade. The production of new class II substances, which are all hydrochlorofluorocarbons (HCFCs), will be phased down 99.5 percent by 2020.

The initial concern about the ozone layer in the 1970s led to a ban on the use of CFCs as aerosol propellants in several countries, including the United States. In 1985, the Vienna Convention on the Protection of the Ozone Layer was adopted to formalize international cooperation on this issue. Additional efforts resulted in the adoption of the Montreal Protocol on Substances that Deplete the Ozone Layer in 1987. Today, all Parties to the Montreal Protocol have agreed to phase out the production and consumption of ODS controlled by the Protocol.

B. What is the National Recycling and Emission Reduction Program?

Section 608 of the CAA bears the title “National Recycling and Emissions Reduction Program.” Under the structure of section 608, this program has three main components. First, section 608(a) requires EPA to establish standards and requirements regarding use and disposal of class I and II substances, including a comprehensive refrigerant management program to limit emissions of ozone-depleting refrigerants. This program is to include regulations that reduce the use and emissions of class I and II substances to the lowest achievable level and that maximize the recapture and recycling of such substances. The second component, section 608(b), requires that the regulations issued pursuant to subsection (a) contain requirements for the safe disposal of class I and class II substances. The third component, section 608(c), prohibits the knowing venting, release, or disposal of ozone-depleting refrigerants and their substitutes during the maintenance, service, repair, or disposal of air-conditioning and refrigeration appliances or IPR. This prohibition is also referred to as the “venting prohibition” in this action. Section 608 is described in greater detail in Section III.

EPA first issued regulations under section 608 of the CAA on May 14, 1993 (58 FR 28660, “1993 Rule”), to establish the national refrigerant management program for ozone-depleting refrigerants recovered during the maintenance, service, repair, and disposal of air-conditioning and refrigeration appliances. These regulations were intended to substantially reduce the use and emissions of ozone-depleting refrigerants.

The regulations first established in the 1993 Rule require that persons servicing air-conditioning and refrigeration equipment containing an ozone-depleting refrigerant observe certain practices that reduce emissions. They also established requirements for refrigerant recovery equipment, reclaimer certification, and technician certification, and restricted the sale of refrigerant so that only certified technicians could purchase it. In addition, they required the removal of ODS from appliances prior to disposal, and that all air-conditioning and refrigeration equipment using an ODS be provided with a servicing aperture or process stub to facilitate refrigerant recovery.

The 1993 Rule also established a requirement to repair leaking appliances containing 50 or more pounds of ODS refrigerant. The rule set an annual leak rate of 35 percent for commercial refrigeration appliances and IPR and 15 percent for comfort cooling appliances. If the applicable leak rate was exceeded, the appliance must be repaired within 30 days.

EPA revised these regulations through subsequent rulemakings published on August 19, 1994 (59 FR 42950), November 9, 1994 (59 FR 55912), August 8, 1995 (60 FR 40420), July 24, 2003 (68 FR 43786), March 12, 2004 (69 FR 11946), January 11, 2005 (70 FR 1972), May 23, 2014 (79 FR 29682), and April 10, 2015 (80 FR 19453). EPA also issued proposed rules to revise the regulations in subpart F on June 11, 1998 (63 FR 32044), elements of which were not finalized, and on December 15, 2010 (75 FR 78558), which was also not finalized. EPA is withdrawing and therefore not finalizing the 2010 proposed rule. Instead, EPA re-proposed elements of both the 1998 and the 2010 proposed rules in the notice of proposed rulemaking (80 FR 19453) for this rule.

The August 19, 1994, rule amended specific definitions, required practices, and reporting and recordkeeping requirements, as well as adopted industry standards for reclaimed ODS refrigerants.

The November 9, 1994, rule clarified the conditions under which technician certification programs were grandfathered, allowing technicians who had participated in voluntary technician training and certification programs prior to the publication of the 1993 Rule to receive formal certification. The rule also clarified the scope of the technician certification requirement and provided a limited exemption from certification requirements for apprentices.

The August 8, 1995, rule responded to a settlement agreement between EPA and the Chemical Manufacturers Association to give additional flexibility to repair or retrofit IPR appliances containing ODS. EPA allowed owners or operators additional time beyond 30 days to complete repairs and more than one year to retrofit appliances where certain conditions applied (

i.e.,

federally owned equipment located in areas subject to radiological contamination, unavailability of necessary parts for IPR, or instances where adherence to local, state, or federal laws hinder immediate repairs for IPR). EPA also clarified that purged refrigerants that have been captured and destroyed can be excluded from the leak rate calculations.

The July 24, 2003, rule finalized portions of a proposed rulemaking (61 FR 7858; February 29, 1996) that amended the recordkeeping aspects of the section 608 technician certification program, refined aspects of the refrigerant sales restriction, adopted updated versions of ARI Standards 700

and 740

, amended several definitions, and set forth procedures for the revocation and/or suspension of approval to certify technicians and refrigerant recovery and/or recycling equipment and revocation and/or suspension procedures for certification as a refrigerant reclaimer.

The Air Conditioning and Refrigeration Institute Standard 700,

Specification for Fluorocarbons and Other Refrigerants,

contains standards for the reclamation of used refrigerants.

The Air Conditioning and Refrigeration Institute Standard 740,

Performance Rating of Refrigerant Recovery Equipment and Recovery/Recycling Equipment,

contains standards for the equipment used to recover refrigerant from air-conditioning and refrigeration appliances.

The March 12, 2004, rule exempted from the venting prohibition under section 608(c)(2) specific non-ozone depleting substances that the Agency found did not pose a threat to the environment (69 FR 11946). Notably, EPA did not exempt HFC or perfluorocarbon (PFC) refrigerants from the venting prohibition. The rule clarified that regulations affecting the handling and sales of ozone-depleting refrigerants apply to blends that contain an ODS.

The January 11, 2005, rule clarified that the leak repair requirements also apply to blends that contain an ODS (70

FR 1927). The rule amended the required practices and associated reporting/recordkeeping requirements and clarified certain leak repair requirements.

On December 15, 2010 (75 FR 78558, “proposed 2010 Leak Repair Rule”), EPA proposed to create a streamlined set of leak repair requirements that are applicable to all types of appliances containing 50 or more pounds of ozone-depleting refrigerant. The rule also proposed to reduce the leak repair rates. EPA did not finalize that rule and EPA has withdrawn that proposal through this rulemaking, although, as noted above, EPA also re-proposed elements of that proposal in the notice of proposed rulemaking for this rule.

Finally, on May 23, 2014 (79 FR 29682), and April 10, 2015 (80 FR 19453), EPA expanded the list of substitute refrigerants that EPA has exempted from the CAA venting prohibition to include certain hydrocarbons in specific end-uses.

C. What developments have occurred since EPA first established the National Recycling and Emission Reduction Program?

1. Phaseout of CFCs and HCFCs

In 1993, when EPA established the refrigerant management requirements of subpart F, CFCs and HCFCs were the most commonly used refrigerants, depending on the specific application. Just six months prior, in November 1992, the Parties to the Montreal Protocol accelerated the phaseout schedule for CFCs through the Copenhagen Amendment, so that there would be a complete phaseout by 1996. The Copenhagen Amendment also established a phaseout schedule for HCFCs. The schedule for HCFCs was later amended and now calls for a 35 percent reduction in production and consumption from each Article 2 Party's (developed country's) cap by 2004, followed by a 75 percent reduction by 2010, a 90 percent reduction by 2015, a 99.5 percent reduction by 2020, and a total phaseout by 2030. From 2020 to 2030, production and consumption at only 0.5 percent of baseline is allowed solely for servicing existing air-conditioning and refrigeration equipment.

The United States chose to implement the Montreal Protocol phaseout schedule on a chemical-by-chemical basis. In 1993, as authorized by section 606 of the CAA, EPA established a phaseout schedule that eliminated HCFC-141b first and would greatly restrict HCFC-142b and HCFC-22 next, due to their high ozone depletion potentials (ODPs), followed by restrictions on all other HCFCs, and ultimately a complete phaseout (58 FR 15014, March 18, 1993, and 58 FR 65018, December 10, 1993). EPA continues to issue allowances for the production and consumption of HCFCs that have not yet been phased out. The allowance levels reflect not only phaseout schedules but also use restrictions under section 605(a) of the CAA. The phaseout schedule and allowance levels can be found at 40 CFR part 82, subpart A.

EPA established the refrigerant management program shortly before the CFC phaseout. Similarly, today's rule to update those regulations closely precedes the phaseout of HCFCs. In 2020, production and consumption of HCFCs will be limited to 0.5% of baseline, and may not include HCFC-22, the most commonly used HCFC refrigerant. The reasons for encouraging a viable CFC recycling program support the same approach for HCFCs. The 1993 Rule discussed a 1990 advance notice of proposed rulemaking regarding a national CFC recycling program. As the 1993 Rule discussed, that 1990 notice emphasized that recycling is important because it would allow the continued use of equipment requiring CFCs for service past the year in which CFC production is phased out, thereby eliminating or deferring the cost of early retirement or retrofit of such equipment. Because of the continued use of these substances in existing equipment, recycling can serve as a useful bridge to alternative products while minimizing disruption of the current capital stock of equipment. (58 FR 28661).

More than twenty years later, with the experience gained through the phaseout of CFCs, reducing emissions of HCFCs and maximizing their recovery and reclamation remains just as important for ensuring the continued viability of the current stock of equipment. The transition out of CFC and now HCFC refrigerants is one reason that it is important to update the refrigerant management regulations in subpart F.

2. Development of Non-ODS Alternatives

The universe of available refrigerants has expanded dramatically since EPA first established the refrigerant management regulations in subpart F. Under the Significant New Alternatives Policy (SNAP) program (CAA section 612), EPA identifies substitutes that pose lower overall risks to human health and the environment and must prohibit the use of substitutes for which there are other available or potentially available alternatives posing lower overall risk to human health and the environment for the same use. Thus, EPA's SNAP program does not provide a static list of alternatives. Instead, the SNAP list evolves as EPA makes decisions informed by our overall understanding of the environmental and human health impacts as well as our current knowledge about available substitutes. Under SNAP, EPA has reviewed over 400 substitutes in the refrigeration and air-conditioning; fire suppression; foam blowing; solvent cleaning; aerosols; adhesives, coatings, and inks; sterilants; and tobacco expansion sectors. To date, SNAP has issued 31 notices and 20 rulemakings listing alternatives as acceptable, acceptable subject to use conditions, acceptable subject to narrowed use limits, or unacceptable for those various end-uses.

For example, on April 10, 2015, the SNAP Program listed as acceptable, subject to use conditions, three hydrocarbons, one hydrocarbon blend, and HFC-32 as substitute refrigerants in a number of refrigeration and air-conditioning end-uses (80 FR 19454). The SNAP program has also recently listed a number of additional refrigerant options, including blends of hydrofluoroolefins (HFOs) and HFCs that have lower global warming potentials (GWPs) (October 21, 2014, 79 FR 62863; July 20, 2015, 80 FR 42870). EPA anticipates that industry will continue to develop safer alternatives and that EPA will continue to review information concerning additional refrigerant options and determine the appropriate action needed to safeguard human health and the environment.

Due to the change in the suite of acceptable refrigerants available for some end-uses, EPA anticipates that the relative amounts of different refrigerants in stocks in the United States will change, and thus that the universe of refrigerants subject to the refrigerant management program will continue to evolve. The diversity of refrigerants and the potential for cross-contamination are two reasons why it is important to clarify how all refrigerants, including non-exempt substitute refrigerants, should be handled under the refrigerant management regulations in subpart F.

3. Increased Attention to HFCs as Climate Pollutants

Domestic and international efforts to protect the ozone layer have also helped to protect the global climate, because in addition to damaging ozone in the stratosphere, CFCs and HCFCs are also potent GHGs. HFCs, which are the predominant class of compounds being used as replacements for ODS, also can

have high GWPs. As their use has increased, concern has grown over the environmental damage caused by heat trapped in the atmosphere by HFCs.

On December 7, 2009, (74 FR 66496) the Administrator issued an Endangerment Finding regarding GHGs under section 202(a) of the CAA. As part of this finding, EPA concluded that the current and projected concentrations of six key well-mixed GHGs in the atmosphere—carbon dioxide (CO

), methane (CH

), nitrous oxide (N

O), HFCs, PFCs, and sulfur hexafluoride (SF

)—endanger both the health and welfare of current and future generations. While this finding was made specifically for the purposes of section 202(a) of the CAA, EPA is cognizant of the global climate risks generally discussed in the finding in its work to reduce emissions of HFCs and other GHGs.

i. Climate Action Plan

In June 2013, the President announced the Climate Action Plan.

Among the many actions called for, the Climate Action Plan outlined a set of measures to address HFCs. The Climate Action Plan states: “to reduce emissions of HFCs, the United States can and will lead both through international diplomacy as well as domestic actions.” Part of this international diplomacy is the proposed Amendment to the Montreal Protocol discussed below. The Climate Action Plan also directed EPA to use its authority through the SNAP program “to encourage private sector investment in low-emissions technology by identifying and approving climate-friendly chemicals while prohibiting certain uses of the most harmful chemical alternatives.” In July 2015, EPA finalized a rule that revised the listing status for certain substitutes previously listed as acceptable under the SNAP program (80 FR 42870). That rule revised the status of certain HFCs and HCFCs for various end-uses in the aerosols, refrigeration and air-conditioning, and foam blowing sectors. EPA made these revisions based on information showing that other substitutes are available for the same uses that pose lower risk overall to human health and the environment. A copy of the Climate Action Plan is available in the docket to this rule.

The President's Climate Action Plan, 2013,

https://www.whitehouse.gov/sites/default/files/image/president27sclimateactionplan.pdf.

The President's Climate Action Plan also calls on the federal government to reduce emissions of HFCs by purchasing alternatives whenever feasible and transitioning to equipment that uses safer and more sustainable alternatives to HFCs. To implement the Climate Action Plan, the Department of Defense, General Services Administration, and National Aeronautics and Space Administration recently amended the Federal Acquisition Regulation to encourage the purchase of alternatives to high GWP HFCs (81 FR 30429; May 16, 2016). This rule is designed to promote the use of safer chemical alternatives to HFCs by service and vendor contractors. To help agencies monitor progress, the amendment requires contractors to keep records of and report on the amounts of HFCs added or removed during the routine maintenance, repair, or disposal of appliances with a full charge of 50 or more pounds of HFC or HFC blend refrigerant.

Minimizing the emissions and maximizing the recovery and reuse of ODS and HFC refrigerants are consistent with the Climate Action Plan. EPA estimates that the revisions finalized in this action will prevent annual emissions of refrigerant equivalent to 7.3 MMTCO

eq. Of this amount, 3.6 MMTCO

eq are due to HFCs and 3.7 MMTCO

eq are due to ODS. Because of the significant environmental benefit to be gained by addressing HFC refrigerants, it is important to update the refrigerant management regulations in subpart F.

ii. Trends in HFC Use and Future Projections

Although HFCs represent a small fraction of current GHG emissions by weight, their warming impact per kilogram is very strong. The most commonly used HFC, HFC-134a, has a GWP of 1,430, which means it traps 1,430 times as much heat per kilogram as carbon dioxide does over 100 years. The majority of global, and U.S., HFC use is in the refrigeration and air conditioning sector. HFC emissions are projected to increase substantially and at an increasing rate over the next several decades if their production is left uncontrolled. In the United States, emissions of HFCs are increasing more quickly than those of any other group of GHGs, and globally they are increasing 10 to 15 percent annually. At that rate, emissions are projected to double by 2020 and triple by 2030.

HFCs are also rapidly accumulating in the atmosphere. The atmospheric concentration of HFC-134a has increased by about 10 percent per year from 2006 to 2012, and the concentrations of HFC-143a and HFC-125, which are components of commonly used refrigerant blends, have risen over 13 and 16 percent per year from 2007 to 2011, respectively. Without action, annual global emissions of HFCs are projected to rise to about 6,400 to 9,900 MMTCO

eq in 2050, which is comparable to the drop in annual GHG emissions of ODS of 8,000 MMTCO

eq between 1988 and 2010 (UNEP, 2011).

As these HFCs accumulate in the atmosphere, they change the balance between energy entering the Earth's climate from the sun and energy escaping the Earth into space. The change in the net rate at which energy enters the atmosphere is called radiative forcing. By 2050, the buildup of HFCs in the atmosphere is projected to increase radiative forcing to 0.22-0.25 W m

. To appreciate the significance of the projected HFC radiative forcing within the context of all GHGs, the forcing from HFCs would be 6-9% of that from CO

in the IPCC's representative concentration pathways (RCP6 and RCP8.5) in 2050 (Velders

et al.

, 2015).

iii. Montreal Protocol Amendment Proposal

For the past six years, the United States, Canada, and Mexico have proposed an amendment to the Montreal Protocol to phase down the production and consumption of HFCs. The United States seeks adoption of an amendment that is acceptable to all Parties. Global benefits of the amendment proposal would yield significant reductions of over 90 gigatons of carbon dioxide equivalent (CO

eq) through 2050. A number of other Parties to the Montreal Protocol have also proposed amendments to phase down global production and consumption of HFCs. These proposals were introduced by a group of Island States; the European Union; and India. On November 6, 2015, the Parties to the Montreal Protocol adopted the “Dubai Pathway” on HFCs, which provides that the Parties would work together, within the Montreal Protocol, to adopt an HFC amendment in 2016.

4. Petition From the Alliance for Responsible Atmospheric Policy

On January 31, 2014, the Alliance for Responsible Atmospheric Policy (the Alliance) petitioned the Agency to initiate a rulemaking to apply the section 608 refrigerant management regulations to HFCs and other substitute refrigerants. In that petition, the Alliance requested that EPA extend the section 608 regulations relating to refrigerant sales and distribution restrictions, and the evacuation, certification, reclamation and recovery, leak repair, reporting and recordkeeping

requirements to HFCs. The petition argues that applying the section 608 requirements to HFCs “would increase the environmental benefits already realized from the section 608 regulations, through reduced HFC emissions, and would complement the United States' goal of a global phase down in HFC production and consumption.” The petition cites sections 608(c)(2) and 301(a) of the CAA as authority for these revisions. A copy of the petition is included in the docket for this rulemaking. While EPA is not taking today's action solely as a result of the Alliance petition, this rulemaking constitutes the Agency's response to the petition.

D. What are the goals of this rule?

The Agency has two goals for this rulemaking. The first is to promote the proper handling and use of ozone-depleting and substitute refrigerants. Doing so will protect the stratospheric ozone layer by reducing emissions of ODS refrigerants and protect the climate system by reducing emissions of refrigerant gases with high GWPs. High-GWP refrigerants include both ODS refrigerants and most substitute refrigerants, including HFCs, that EPA has not exempted from the venting prohibition under CAA section 608. The second goal of this rulemaking is to harmonize the requirements across all major refrigerant types and update the regulations in plain language to reduce uncertainty and complexity for the regulated community, as well as increase clarity, encourage compliance, and facilitate enforcement.

1. Promoting the Proper Handling of Refrigerants

Today's rule will reduce the use and emission of refrigerants, maximize the recapture and recycling of such substances, and further interpret, explain, and enforce the prohibition on knowingly venting or releasing refrigerants during the maintenance, service, repair, or disposal of appliances.

EPA estimates that this rule will result in annual reductions in emissions of approximately 114 ODP-weighted metric tons. A separate support document

Analysis of the Economic Impact and Benefits of Final Revisions to the National Recycling and Emission Reduction Program

contains a full discussion of the benefits of this rule and is available in the docket.

Stratospheric ozone depletion decreases the atmosphere's ability to shield life on the Earth's surface from the sun's UV radiation. The links between stratospheric ozone depletion and public health concerns are well established. Emissions of ODS lead to chemical reactions that reduce the amount of ozone in the stratosphere. Less ozone in the stratosphere means that more UVA and UVB radiation reaches the earth's surface and is incident on exposed organisms, including humans. Adverse health effects associated with exposure to UV radiation include skin cancer, cataracts, and immune suppression. The

Scientific Assessment of Ozone Depletion

prepared by the Scientific Assessment Panel to the Montreal Protocol, and

Environmental Effects of Ozone Depletion and its Interactions with Climate Change

prepared by the Environmental Effects Assessment Panel to the Montreal Protocol provide comprehensive information regarding the links between emissions of ODS, ozone layer depletion, UV radiation, and human health effects. Both documents are available in the docket for this rule.

World Meteorological Organization (WMO), Scientific Assessment of Ozone Depletion: 2014, World Meteorological Organization, Global Ozone Research and Monitoring Project—Report No. 55, 416 pp., Geneva, Switzerland, 2014.

United Nations Environment Programme, Environmental Effects Assessment Panel, Environmental effects of ozone depletion and its interactions with climate change: progress report, 2011, Photochem. Photobiol. Sci., 2012, 11, DOI: 10.1039/c1pp90033a.

The most common forms of skin cancer are strongly associated with UV radiation, and UV exposure is the most preventable cause of skin cancer (U.S. Department of Health and Human Services. The Surgeon General's Call to Action to Prevent Skin Cancer. Washington, DC: U.S. Department of Health and Human Services, Office of the Surgeon General; 2014). Skin cancer is the most common form of cancer in the United States, with more than 3.5 million new cases diagnosed annually (American Cancer Society, Cancer Facts and Figures, 2015). Rates for new cases of melanoma, the most serious form of skin cancer, have been rising on average 1.4 percent each year over the last 10 years (National Cancer Institute, SEER Stat Fact Sheets: Melanoma of the Skin, available at

http://seer.cancer.gov/statfacts/html/melan.html

, accessed May 5, 2015). In 2015, it is estimated that 70,000 Americans will have been diagnosed with melanoma and almost 10,000 will have died as a result of the disease (American Cancer Society, Cancers Facts and Figures, 2015).

Non-melanoma skin cancers are less deadly than melanomas, but if left untreated they can spread, causing disfigurement and more serious health problems. There are two primary types of non-melanoma skin cancers. Basal cell carcinomas are the most common type of skin cancer tumors. Basal cell carcinoma grows slowly, and rarely spreads to other parts of the body. It can, however, penetrate to the bone and cause considerable damage. Squamous cell carcinomas are tumors that may appear as nodules or as red, scaly patches. This cancer can develop into large masses and can spread to other parts of the body.

Other UV-related skin disorders include actinic keratoses and premature aging of the skin. Actinic keratoses are skin growths that occur on body areas exposed to the sun. The face, hands, forearms, and neck are especially susceptible to this type of lesion. Although premalignant, actinic keratoses are a risk factor for squamous cell carcinoma. Chronic exposure to the sun also causes premature aging, which over time can make the skin become thick, wrinkled, and leathery.

Research has shown that UV radiation increases the likelihood of certain cataracts. (Taylor, H.R.,

et al.

, 1988.

Effect of ultraviolet radiation on cataract formation

, New England Journal of Medicine, 319, 1429-33; West, S.

et al.

, 2005.

Model of Risk of Cortical Cataract in the US Population with Exposure to Increased Ultraviolet Radiation due to Stratospheric Ozone Depletion

, American Journal of Epidemiology, 162, 1080-1088.) Cataracts are a form of eye damage in which a loss of transparency in the lens of the eye clouds vision. If left untreated, cataracts can lead to blindness. Although curable with modern eye surgery, cataracts diminish the eyesight of millions of Americans. Other kinds of eye damage caused by UV radiation include pterygium (

i.e.

, tissue growth that can block vision), skin cancer around the eyes, and degeneration of the macula which contains the part of the retina where visual perception is most acute.

Another benefit of reducing refrigerant emissions is protection of the climate system. Many refrigerants, including ODS and substitutes for ODS, are potent GHGs, having GWPs thousands of times higher than that of carbon dioxide (CO

), which has a GWP of one. For example, HCFC-22 has a GWP of 1,810. R-404A, a commonly used HFC refrigerant blend, has a GWP of 3,922. Other common HFC refrigerants, with their GWPs, include R-134a (1,430), R-410A (2,088), R-407A (2,107), and R-507A (3,985). EPA estimates that today's rule will reduce GWP-weighted emissions by approximately 7.3 MMTCO

eq per year.

To briefly summarize, GHGs cause climate change by trapping heat on Earth. The Earth is constantly receiving energy from the sun in the form of radiation, while at the same time, energy is radiating away into space, mostly as infrared radiation. By absorbing and scattering radiation that otherwise would escape into space, GHGs throw off the balance between incoming and escaping radiation, resulting in more energy in the Earth's climate system.

As described in the EPA's 2009 Endangerment Finding (74 FR 66496) and subsequent reports by the IPCC, the United States Global Change Research Program, and the National Research Council, climate change impacts threaten the health of Americans in multiple ways and touch on nearly every aspect of public welfare. For more information on GHGs and climate change in the United States, visit

www.epa.gov/climatechange

2. Improving Rule Effectiveness

The second goal of today's rule is to improve the clarity and effectiveness of the subpart F regulations. Achieving the health and environmental benefits of these rules depends on widespread compliance, and understanding of the regulations by the regulated community enhances compliance.

EPA has begun an initiative to improve the effectiveness of its rules called Next Generation Compliance. The vision for this initiative is to make it easier for the regulated community to understand and comply with environmental laws and inform the public about their performance. Most importantly, this initiative will help ensure that all Americans are protected from significant risks to human health and the environment and have access to information that allows them to more fully engage in environmental protection efforts.

The Agency has identified several interconnected components in the Office of Enforcement and Compliance Assurance's 2014-2017 strategic plan for its Next Generation Compliance initiative that can improve the effectiveness of rules:

• Effective Regulations: Design regulations that are clear, as easy to implement as possible, and that contain self-reinforcing drivers. For example, where possible, design regulations such that regulated facilities can take steps to monitor their own performance to prevent violations, or be certified by an independent 3rd party.

•

Advanced Monitoring:

Use advanced monitoring technology for the government, industry, and the public to more easily find information on pollutant discharges/emissions, environmental conditions, and noncompliance.

•

Electronic Reporting:

Implement electronic systems to make reporting easier, more efficient, and less costly. For the user, these systems offer speed, convenience, expanded information choices, and filing capabilities. For government, they offer the ability to increase transparency, improve our ability to spot pollution and compliance issues, and respond quickly to emerging problems.

•

Transparency:

Make the information we have today more accessible, and make new information obtained from advanced monitoring and electronic reporting publicly available.

•

Innovative Enforcement:

Use Next Generation Compliance principles and tools in enforcement planning and cases.

Effective Regulations.

The Agency and industry have more than 20 years of experience implementing and operating under the refrigerant management regulations in subpart F. Through that experience, it has become clear that there are elements of the program that could be made more effective. This rule revises the structure of these regulations to clearly lay out the process for repairing refrigerant leaks and adds steps to ensure that the repairs were successful. This rule also for the first time addresses chronically leaking systems in a manner that minimizes the burden on compliant systems. EPA has reorganized the subpart so affected entities can more easily find the provisions that apply to them, including recordkeeping and reporting. This rule removes outdated requirements and, where appropriate, removes unnecessary distinctions between refrigerants, appliance types, and recovery equipment types. Clearer regulations will also be supported by comprehensive compliance assistance materials for each industry segment affected by this final regulation. EPA hopes to make it easier for the regulated community to understand their obligations when handling refrigerants, thereby improving compliance and reducing damage to the environment.

Advanced Monitoring.

EPA is encouraging owners/operators of appliances containing 50 or more pounds of refrigerant to install automatic leak detection equipment. Such systems provide continuous information about whether a system is leaking, allowing leaks to be caught sooner. This can reduce both refrigerant costs and labor costs of manually inspecting refrigeration systems.

Electronic Reporting.

EPA has established the email address

608reports@epa.gov

and this rule requires that all reports that do not contain confidential business information be submitted to EPA at that address. EPA is also revising the regulations to explicitly state that owners and operators of appliances subject to the leak repair provisions may use electronic systems to track when and how much refrigerant is added to equipment and to keep other required records.

Transparency.

EPA is requiring members of the regulated community to post additional information online that is of use to this sector. For example, equipment testing organizations must post lists of certified recovery and/or recycling equipment on their Web sites rather than submit paper reports to EPA. Certifying organizations must also publish lists of technicians that they certify online to assist technicians who have lost their certification cards. EPA also posts to its Web site data on the amount of ODS refrigerant reclaimed each year. Under this final rule EPA will begin collecting and making available reclamation data for non-exempt substitute refrigerants which should provide EPA and the general public a greater understanding of the extent of HFC recovery and reclamation.

Innovative Enforcement.

EPA has incorporated innovative enforcement principles into subpart F since its inception, and this rule updates and strengthens those principles. For example, the refrigerant sales restriction is an effective way to ensure that anyone maintaining, servicing, or repairing an appliance is a certified technician. EPA has also required certification of refrigerant recovery equipment by independent third parties (

i.e.

, UL and Air Conditioning, Heating, and Refrigeration Institute (AHRI)) to ensure that recovery equipment meets the applicable standards. This ensures that technicians who use these devices to recover refrigerant are also using equipment that, when following the manufacturer's instructions, will meet the minimum refrigerant evacuation requirements. EPA also relies on third parties to administer the technician certification exam.

E. What are the major revisions being finalized in this rule?

EPA is finalizing most of the proposed revisions to the regulations for the National Recycling and Emission Reduction Program. Some of these revisions strengthen the existing program, in particular by requiring owners and operators to repair systems

that leak at lower rates than what is currently required and to verify that those repairs were successful. Others extend, as appropriate, the regulations to HFCs and other non-exempt substitute refrigerants. Still other revisions improve the effectiveness of the regulations. After considering comments, EPA has decided not to finalize certain aspects of the proposal. This section briefly discusses the major proposed revisions and the final actions that EPA is taking. Detailed discussions of all of the revisions to the regulations finalized in this action, changes from the proposal, and responses to significant comments are in Section IV of this notice. EPA also summarizes and responds to all significant comments on the proposed action in the comment response document in the docket.

1. Extend the Regulations To Cover Substitute Refrigerants

EPA is finalizing the proposed extension of the requirements of the National Recycling and Emission Reduction Program to substitute refrigerants that have not been exempted from the venting prohibition (also referred to in this action as “non-exempt substitutes”).

2. Strengthen Leak Repair Requirements

Prior to this rule, the leak rates for ODS equipment were 35 percent for IPR and commercial refrigeration appliances, and 15 percent for comfort cooling and other appliances. EPA proposed leak rates of 20 percent for IPR and commercial refrigeration and 10 percent for comfort cooling and other appliances. Based in part on comments received on the proposal, EPA is finalizing leak rates for ODS equipment as follows: 30 percent for IPR, 20 percent for commercial refrigeration appliances, and 10 percent for comfort cooling and other appliances. EPA is also extending the new leak rates to equipment using HFCs and other substitute refrigerants that are not exempt from the venting prohibition.

After considering public comments, EPA is modifying the proposed leak inspection requirements in this final rule. EPA proposed to require quarterly or annual leak inspections for all appliances with a full charge of 50 pounds or greater, with the more frequent inspections applying to larger systems. In the revisions finalized in this rule, EPA is requiring quarterly or annual leak inspections only for appliances that have exceeded the applicable leak rate. Similar to the proposal, owners or operators can forgo leak inspections if they install, continuously operate, and maintain automatic leak detection systems.

Based on comments, EPA has given particular attention to situations where the proposed regulations would have required the retrofit or retirement of an appliance. EPA has modified the final rule in numerous places to support the proper repair of leaking systems. Most notably, EPA is modifying the proposed chronic leaker provision. EPA proposed that appliances containing 50 or more pounds of ODS or substitute refrigerant that leak more than 75 percent of the appliance's full charge in each of two consecutive 12-month periods would have to be retired or mothballed. EPA is finalizing a requirement that owners or operators of appliances that leak 125 percent of their full charge in a calendar year must submit a report to EPA detailing their repair efforts. The report must be submitted no later than March 1 following the calendar year of the ≥125 percent leak.

3. Extend the Sales Restriction to Substitute Refrigerants, With an Exception for Small Cans of MVAC Refrigerant

EPA is finalizing the proposed restriction that non-exempt substitute refrigerants may only be sold to technicians certified under sections 608 or 609 of the CAA. In the case of MVAC refrigerant, EPA is exempting the sale of small cans of non-ODS substitutes to allow the do-it-yourself (DIY) community to continue servicing their personal vehicles. EPA is requiring that small cans of non-exempt substitute refrigerant be outfitted with self-sealing valves by January 1, 2018. Based on comments, EPA is not finalizing the proposal to prohibit the sale of small cans that do not contain self-sealing valves that were manufactured or imported prior to that requirement taking effect.

4. Establish Recordkeeping for Appliances Containing More Than 5 and Less Than 50 Pounds of ODS and Non-Exempt Substitute Refrigerant

EPA is finalizing revisions to the regulations that require that technicians, or the company employing technicians, keep records when disposing of appliances containing more than five and less than 50 pounds of refrigerant. These records include the company name, location of the appliance, date of recovery, and type of refrigerant recovered for each appliance. EPA is also finalizing, with some modification, the revision to the regulations requiring that technicians keep records of the amounts of ODS and non-exempt substitute refrigerant transferred for reclamation by refrigerant type.

EPA is reducing the burden in this final rule by only requiring maintaining records typically generated in the field during the normal disposal of appliances. Therefore, EPA is not finalizing the proposed requirement to keep records indicating the amount of refrigerant recovered from each appliance. Instead, EPA is finalizing a requirement to record the total amount of refrigerant, by type, recovered from all appliances they disposed of over a calendar month. This tally can be performed less frequently and at a central location.

5. Update the Technician Certification Program

EPA is finalizing the requirement that technicians be certified to handle HFCs and other non-exempt substitutes, as proposed. EPA is also finalizing the proposed requirement for certifying organizations to publish lists or create online databases of technicians that they certify.

6. Improving Readability and Restructuring the Requirements

EPA is finalizing the extensive revisions to the regulations in subpart F to more clearly state the requirements of the National Recycling and Emission Reduction Program and to remove potentially ambiguous language, with minor changes from the proposal. EPA is modifying some of the proposed revisions to address additional suggestions raised by commenters. EPA's intent with these edits is to improve readability, not to change the substantive content or requirements of the regulations. For edits to the regulations that are intended to be substantive, EPA is discussing those revisions in this notice. EPA is adding to the docket a red-line version of the final regulatory text from subpart F that shows the final revisions to the prior regulations to assist the regulated community in identifying the differences.

F. Enforcement of Subpart F Regulations

Subpart F regulations must be enforced to realize their full environmental and human health benefit. This section briefly presents examples of recent actions that EPA has taken to enforce the venting prohibition, leak repair, and safe disposal provisions of subpart F. Several provisions that EPA is finalizing in this rule are based on lessons learned in taking these enforcement actions. These revisions are intended to encourage compliance and facilitate potential future enforcement of

the requirements actions of these and other sections of the subpart F regulations. EPA's Web site contains more information on these enforcement actions.

https://www.epa.gov/ozone-layer-protection/enforcement-actions-under-title-vi-clean-air-act

Some commenters stated that EPA should seek better ways to enforce the pre-existing regulations for Class I and II ODS. One commenter encouraged EPA to continue to identify cost-effective means of ensuring that the entire regulated community supports and follows lawful policies and regulations. Another commenter wrote that venting of HFCs above

de minimis

levels must be severely penalized for the rule to be as effective as possible. That commenter encouraged EPA to reiterate that EPA welcomes information and reporting on an anonymous basis regarding parties known to be venting ODS, HFCs, and any non-exempt substitute.

EPA responds that the Agency has enforced and continues to enforce these regulations in actions that range from civil fines to criminal prosecutions. EPA encourages anyone who suspects or witnesses unlawful releases of refrigerants or other violations of CAA regulations to report an environmental violation to EPA (

www.epa.gov/enforcement/report-environmental-violations

). In 2014 and 2015, EPA brought or assisted in three cases against individuals for violating the venting prohibition when cutting into the refrigerant lines to steal metal from HCFC-22 containing air conditioners. Under the plea agreement in a case from 2014, the individual cutting the refrigerant line must serve 31 months in federal prison and then remain under court supervision for an additional 12 months during which time he must perform 200 hours of community service.

EPA entered into consent decrees with the supermarket chains Safeway in 2013, Costco in 2015, and Trader Joe's in 2016 for violations of the leak repair provisions of subpart F for their commercial refrigeration units. In 2015, EPA obtained corrective action with the United States Navy to resolve allegations of failing to perform leak rate calculations when servicing comfort cooling equipment, and with DuPont for improper maintenance and repair of two large IPR units. In 2012, EPA executed consent decrees with Icicle Seafoods, American Seafoods Co. LLC, and Pacific Longline Co. LLC for failure to repair refrigerant leaks at chilling units aboard its fishing vessels and failure to verify the adequacy of repairs before resuming operations, among other violations. In March of 2016, Ocean Gold Seafoods, Inc. and Ocean Cold, LLC entered into a consent decree with EPA that resolved alleged violations for failing to promptly repair refrigerant leaks and failing to keep adequate records of the servicing of their IPR equipment necessary to prevent leaks.

EPA has executed consent decrees to resolve alleged violations of the safe disposal regulations in subpart F. These include decrees in 2016 with Parkway Iron and Metal, and in 2015 with Metal Dynamics and Basic Recycling, as well as at least forty-five non-judicial settlements against scrap recyclers in 2014 and 2015.

EPA also continues to take steps to maintain the integrity of the certification programs under subpart F. EPA recently revoked over a dozen technician certification programs that had failed to submit the required biannual activity report (81 FR 28864). EPA is also ensuring that certified refrigerant reclaimers continue to operate in accordance with § 82.164 and maintain records and submit reports in accordance with § 82.166. EPA recently published a notice announcing the previous revocation of the certification of eight refrigerant reclaimers and giving a ninth reclaimer notice of impending revocation (80 FR 75455).

G. Incorporation by Reference

This action involves technical standards. In some instances, EPA is deciding to use a modified version of an industry standard for purposes of this rule; in others, EPA is deciding to use an industry standard by incorporating it by reference exactly as written. This section summarizes the technical standards that EPA is incorporating by reference and describes how interested parties can access those standards. Sections IV.C (small cans of MVAC refrigerant), Section IV.G (recovery and/or recycling equipment), and IV.K (reclamation requirements) contain further discussion of these technical standards including comments received on EPA's proposal to incorporate certain standards by reference.

EPA is incorporating by reference UL 1963,

Requirements for Refrigerant Recovery/Recycling Equipment

, Fourth Edition, June 1, 2011 in appendix B4. This establishes standards for refrigerant recovery and refrigerant recovery/recycling equipment to ensure the equipment can be used safely with flammable refrigerants. The standard is available at

www.comm-2000.com

or by writing to Comm 2000, 151 Eastern Avenue, Bensenville, IL 60106. The cost is $798 for an electronic copy and $998 for hardcopy. UL also offers a subscription service to the Standards Certification Customer Library (SCCL) that allows unlimited access to their standards and related documents. The cost of obtaining this standard is not a significant financial burden for equipment manufacturers. Therefore, EPA concludes that the UL standard being incorporated by reference is reasonably available.

EPA is not incorporating by reference AHRI Standard 700-2016,

Specifications for Refrigerants.

Rather EPA is basing the content found in appendix A on this standard. This standard establishes purity specifications for refrigerants, and specifies the associated methods of testing for acceptability of refrigerants. The standard is available at

www.ahrinet.org

or by mail at Air-Conditioning, Heating, and Refrigeration Institute (AHRI), 2111 Wilson Boulevard, Suite 500, Arlington, VA 22201. EPA is incorporating by reference publically available versions of the standards referenced in AHRI Standard 700-2016. Specifically, these standards are:

—

2008 Appendix C for Analytical Procedures for AHRI Standard 700-2014—Normative.

This document establishes definitive test procedures for determining the quality of new, reclaimed and/or repackaged refrigerants in support of the standards established in AHRI-700. An electronic copy of the appendix is available at

www.ahrinet.org

. It is also available by mail at Air-Conditioning, Heating, and Refrigeration Institute (AHRI), 2111 Wilson Boulevard, Suite 500, Arlington, VA 22201. The cost of obtaining this standard is not a significant financial burden. Therefore, EPA concludes that the standard being incorporated by reference is reasonably available.

—

2012 Appendix D for Gas Chromatograms for AHRI Standard 700-2014—Informative

Air-Conditioning, Heating, and Refrigeration Institute. This appendix provides figures for the gas chromatograms used with Appendix C to AHRI Standard 700-2015: Normative. An electronic copy of the appendix is available at

www.ahrinet.org

—Federal Specification for “Fluorocarbon Refrigerants,” BB-F-1421 B, dated March 5, 1982. This section of this standard establishes a method to determine the boiling point and boiling point range of a refrigerant. The standard is available in the docket for this rulemaking. Therefore, EPA concludes that the standard being

incorporated by reference is reasonably available.

—GPA STD-2177,

Analysis of Natural Gas Liquid Mixtures Containing Nitrogen and Carbon Dioxide by Gas Chromatography

, 2013, Gas Processors Association. This standard establishes methods for analyzing demethanized liquid hydrocarbon streams containing nitrogen/air and carbon dioxide, and purity products such as ethane/propane mix that fall within compositional ranges indicated in the standard. The standard is available at

www.techstreet.com

or by writing to Techstreet, 6300 Interfirst Drive, Ann Arbor, MI 48108. The cost of this standard is $55 for an electronic copy or $65 for a printed edition. The cost of obtaining this standard is not a significant financial burden. Therefore, EPA concludes that the standard being incorporated by reference is reasonably available.

—ASTM Standard D1296-01-2012,

Standard Test Method for Odor of Volatile Solvents and Diluents

, July 1, 2012, ASTM International. This test method covers a comparative procedure for observing the characteristic and residual odors of volatile organic solvents and diluents to determine their odor acceptability in a solvent system. The standard is available at

www.astm.org

or by writing to ASTM, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959. The cost of this standard is $39. The cost of obtaining this standard is not a significant financial burden. Therefore, EPA concludes that the standard being incorporated by reference is reasonably available.

EPA is not incorporating by reference AHRI Standard 740-2016,

Performance Rating of Refrigerant Recovery Equipment and Recovery/Recycling Equipment.

Rather EPA is basing the content found in appendices B3 and B4 on this standard. This standard establishes methods of testing for rating and evaluating the performance of refrigerant recovery equipment and recovery/recycling equipment. The standard is available at

www.ahrinet.org

or by mail at Air-Conditioning, Heating, and Refrigeration Institute (AHRI), 2111 Wilson Blvd., Suite 500, Arlington, VA 22201. EPA is incorporating by reference the standards referenced in AHRI Standard 740-2016. Specifically, these standards are:

—ANSI/ASHRAE Standard 63.2-1996 (RA 2010) Method of Testing Liquid-Line Filter Drier Filtration Capability, 2010, American National Standards Institute/American Society of Heating, Refrigerating and Air-Conditioning Engineers, Inc. The purpose of this standard is to prescribe a laboratory test method for evaluating the filtration capability of filters and filter driers used in liquid lines of refrigeration systems. The standard is available at

www.ashrae.org

or by mail at AHSRAE, 1791 Tullie Circle NE., Atlanta, GA 30329. The cost is $39 for an electronic copy or printed edition. The cost of obtaining this standard is not a significant financial burden. Therefore, EPA concludes that the standard being incorporated by reference is reasonably available.

—UL Standard 1963-2011,

Refrigerant Recovery/Recycling Equipment

, Fourth Edition, 2011, American National Standards Institute/Underwriters Laboratories, Inc. This standard establishes safety requirements for and methods to evaluate refrigerant recovery and refrigerant recovery/recycling equipment. The standard is available at

www.comm-2000.com

—AHRI Standard 110-2016,

Air-Conditioning, Heating and Refrigerating Equipment Nameplate Voltages

, 2016, Air-Conditioning, Heating, and Refrigeration Institute. This standard establishes voltage rating requirements, equipment performance requirements, and conformance conditions for air-conditioning, heating, and refrigerating equipment. A free electronic copy of this standard is available at

www.ahrinet.org

—International Standard IEC 60038,

IEC Standard Voltages,

Edition 7.0, 2009-06, International Electrotechnical Commission. This standard specifies standard voltage values which are intended to serve as preferential values for the nominal voltage of electrical supply systems, and as reference values for equipment and system design. The standard is available at

www.techstreet.com

or by writing to Techstreet, 6300 Interfirst Drive, Ann Arbor, MI 48108. The cost of this standard is $50. The cost of obtaining this standard is not a significant financial burden. Therefore, EPA concludes that the standard being incorporated by reference is reasonably available.

EPA is not incorporating by reference California Air Resources Board,

Test Procedure for Leaks from Small Containers of Automotive Refrigerant

, TP-503, as amended January 5, 2010. Rather EPA is basing the content found in appendix E on this standard. This standard establishes methods for assessing the leak rate from small containers of refrigerant. A copy of this standard is available in the docket and

www.arb.ca.gov/regact/2009/hfc09/hfc09.htm

III. EPA's Authority Under the Clean Air Act

A. Summary of EPA's Authority for the Revisions to Subpart F

The authority for this action is provided primarily by section 608 of the CAA. Section 608 is divided into three subsections, which together comprise the “National Recycling and Emission Reduction Program.” Among other things, section 608 of the CAA requires EPA to establish a comprehensive program to limit emissions of ozone-depleting refrigerants. It also prohibits the knowing release or disposal of ozone-depleting refrigerants and their substitutes in the course of maintaining, servicing, repairing, or disposing of air-conditioning and refrigeration equipment in a manner which permits such a substance to enter the environment. The three subsections of section 608 are described in more detail in the following paragraphs.

Section 608(a) requires EPA to establish standards and requirements regarding use and disposal of class I and II substances. With regard to refrigerants, EPA is to promulgate regulations establishing standards and requirements for the use and disposal of class I and class II substances during the maintenance, service, repair, or disposal of air-conditioning and refrigeration appliances or IPR. Regulations under section 608(a) are to include requirements to reduce the use and emission of ODS to the lowest achievable level, and to 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 minimize use of class I or class II substances, or to promote the use of safe alternatives pursuant to section [612] or any combination of the foregoing.”

Section 608(b) requires that the regulations issued pursuant to section 608(a) contain requirements for the safe disposal of class I and class II substances, including requirements that such substances shall be removed from such appliances, machines, or other goods prior to the disposal of such items or their delivery for recycling.

Section 608(c) establishes a self-effectuating prohibition, commonly called the “venting prohibition,” that generally speaking, makes it unlawful to knowingly release ODS and substitute refrigerants in a way that allows the refrigerant to enter the environment

while maintaining, servicing, repairing, or disposing of air-conditioning or refrigeration equipment. More specifically, section 608(c)(1), effective July 1, 1992, makes it unlawful for any person in the course of maintaining, servicing, repairing, or disposing of an appliance or IPR to knowingly vent, release, or dispose of any ODS used as a refrigerant in such equipment in a manner that permits that 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 such a substance. Section 608(c)(2) extends the provisions of (c)(1), including the prohibition on venting, to substitutes for class I or class II refrigerants, effective November 15, 1995, unless the Administrator determines that such venting, release, or disposal “does not pose a threat to the environment.” EPA has determined through prior rulemakings that specific substances do not pose a threat to the environment when vented, released, or disposed of and has exempted those specific substitutes from the venting prohibition. The full list of substitutes that EPA has exempted from this prohibition is at 40 CFR 82.154(a). For some substitutes that have been exempted from the venting prohibition under section 608(c)(2) and § 82.154(a) the exemption only applies when the substitute is used in specified applications, but for others, the exemption is for the substitute refrigerant as used in all applications.

EPA is using the term “non-exempt substitute” in this notice to refer to substitute refrigerants that have not been exempted from the venting prohibition under CAA section 608(c)(2) and 40 CFR 82.154(a) in the relevant end-use. Similarly, the term “exempt substitute” refers to a substitute refrigerant that has been exempted from the venting prohibition under section 608(c)(2) and § 82.154(a) in the relevant end-use.

The statutory standards under section 608(a) against which the regulations concerning the use and disposal of ozone-depleting substances are to be measured are whether they “reduce the use and emission of such substances to the lowest achievable level” and “maximize the recapture and recycling of such substances.” These standards are often complementary in the context of maintenance, service, repair, and disposal of air conditioning and refrigerant equipment. For example, in the context of recycling, maximizing recycling will also help reduce the use and emission of these substances to the lowest achievable level. These statutory standards also bear a relationship to the

de minimis

releases addressed in section 608(c). More specifically, emissions that occur while complying with EPA's recovery and recycling regulations are considered

de minimis,

because those regulations set forth practices and requirements which result in the lowest achievable level of emissions. EPA has established this interpretation in its regulations under section 608 for ODS refrigerants.

On May 14, 1993, EPA published the original regulations implementing subsections (a), (b), and (c)(1) for ODS refrigerants (58 FR 28660). These regulations include evacuation requirements for appliances being serviced or disposed of, standards and testing requirements for recovery and/or recycling equipment, certification requirements for technicians, purity standards and testing requirements for used refrigerant sold to a new owner, certification requirements for refrigerant reclaimers, leak repair requirements, and requirements for the safe disposal of appliances that enter the waste stream with the charge intact. This rule also stated that the Agency interprets “

de minimis

” to mean releases that occur while the recycling and recovery requirements of regulations under sections 608 and 609 are followed. However, those requirements only applied to ODS refrigerants, and these regulations did not explain how the venting prohibition or the

de minimis

exemption applied for substitute refrigerants. Among other things, this rulemaking addresses that gap in the regulations.

1. Applying Regulations Under Section 608 to Substitute Refrigerants

In this rule, EPA is extending, as appropriate, provisions of the refrigerant recovery and/or recycling regulations, which previously had only applied to ODS refrigerants, to non-exempt substitute refrigerants. To summarize briefly, EPA's authority for this action rests largely on section 608(c), which EPA interprets to provide it authority to promulgate regulations that interpret, explain, and enforce the venting prohibition and the

de minimis

exemption, as they apply to both ODS refrigerants and non-exempt substitute refrigerants. Accordingly, this rule establishes a comprehensive and consistent framework that applies to both ODS and non-exempt substitute refrigerants. This, in turn, provides clarity to the regulated community concerning the measures that should be taken to comply with the venting prohibition for non-exempt substitutes and reduces confusion and enhances compliance for both ODS and non-exempt substitutes.

EPA's authority to issue regulations for section 608(c) is supplemented by section 301(a), which provides authority for EPA to “prescribe such regulations as are necessary to carry out [the EPA Administrator's] functions under this Act.” In addition, EPA's authority to extend the recordkeeping and reporting requirements to non-exempt substitutes is supplemented by section 114, which provides authority to the EPA Administrator to require recordkeeping and reporting in carrying out provisions of the CAA. Finally, the extension of requirements under section 608 to non-exempt substitutes in this rule is also supported by section 608(a) because having a consistent regulatory framework for non-exempt substitutes and ODS is expected to reduce emissions of ODS refrigerants, as well as non-exempt substitutes.

EPA used an analogous analysis in promulgating the regulations for section 608 originally. In that rulemaking, EPA explained that extending regulatory requirements to class II substances (rather than only regulating class I substances) would facilitate compliance with the venting prohibition, in part by providing clear guidance to technicians recovering class II substances on what releases do and do not constitute violations of the prohibition. 58 FR 28667. EPA also explained that it was desirable to provide a “clear, consistent framework for fully implementing the prohibition on venting for all refrigerants” to “minimize confusion and maximize compliance with the prohibition.” 58 FR 28666.

Section 608 of the CAA is ambiguous with regard to EPA's authority to establish refrigerant management regulations for substitute refrigerants. As Congress has not precisely spoken to this issue, EPA has the discretion to adopt a permissible interpretation of the CAA.

Chevron, U.S.A., Inc.

Natural Res. Def. Council, Inc.

, 467 U.S. 837, 843-44 (1984). Primarily under the authority of section 608(a), EPA has established standards for the proper handling of ODS refrigerants during the maintenance, service, repair, or disposal of an appliance to maximize the recovery and/or recycling of such substances and reduce the use and emission of such substances. Section 608(a) expressly requires EPA to promulgate regulations that apply to class I and class II substances, but is silent on whether its requirements apply to substitute substances. On the other hand, section 608(c)(2) contains provisions for substitute refrigerants which parallel those for ODS refrigerants in section 608(c)(1). For instance, as for ODS refrigerants under section 608(c)(1), section 608(c)(2) prohibits knowingly venting, releasing, or disposing of any substitute refrigerant in the course of maintaining, servicing, repairing, or disposing of an appliance

in a manner which permits the substance to enter the environment.

This creates a tension or ambiguity because the regulated community is subject to an explicit and self-effectuating prohibition on venting, releasing, or disposing of non-exempt substitute refrigerants while maintaining, servicing, repairing, or disposing of equipment but at the same time is not explicitly required by section 608(a) to recover substitute refrigerant prior to servicing or disposing of equipment or to engage in any of the practices or behaviors that EPA has established to minimize the emission and release of ODS refrigerants during such maintenance, service, repair, or disposal.

As noted previously, this venting prohibition does not apply to substitutes for which the Administrator has made a determination that such venting, release, or disposal “does not pose a threat to the environment” under CAA 608(c)(2). As indicated elsewhere in this notice, EPA is not extending the requirements of the refrigerant management program to substitutes that have been exempted from the venting prohibition in this action. Where a substitute has been exempted only in specific uses, the requirements in this rule apply to uses in which the substitute has not been exempted.

Moreover, some amount of refrigerant, whether ODS or substitute, is inevitably released during the maintenance, servicing, repair, and disposal of air-conditioning or refrigeration appliances or equipment. Without a clear regulatory framework for determining what requirements apply during the maintenance, servicing, repair, and disposal of such equipment containing a non-exempt substitute refrigerant, the regulated community and the public would not have the same measure of certainty as to whether such releases violate the venting prohibition or fall within the

de minimis

exemption to that prohibition, and what steps must be taken to comply with CAA obligations for such substitute refrigerants in undertaking such actions. Accordingly, this rulemaking finalizes regulations to interpret and explain how the venting prohibition and the

de minimis

exemption apply to non-exempt substitute refrigerants. In doing so, EPA is clarifying that the regulated community that uses non-exempt substitute refrigerants may rely on the

de minimis

exemption to the venting prohibition if they follow the amended requirements in subpart F.

Consistent with the language of sections 608(c)(1) and (2), this rule aims to avoid knowing releases of non-exempt substitute refrigerants into the environment in the course of maintaining, servicing, repairing, or disposing of an appliance or IPR, unless those releases meet the criteria for the

de minimis

exemption. Section 608(c)(1) provides an exemption from the venting prohibition for “[d]e minimis releases associated with good faith attempts to recapture and recycle or safely dispose of any such [class I or class II] substance.” In this context, EPA interprets this provision to exempt releases that occur while the recycling and recovery requirements of regulations under sections 608 and 609 are followed and has promulgated regulations consistent with that interpretation.

In particular, EPA has incorporated both the venting prohibition and the

de minimis

exemption into the regulations at § 82.154(a). Further, the last sentence in the existing regulations at § 82.154(a)(2) provides that “refrigerant releases shall be considered de minimis only if they occur when” enumerated regulatory practices in subpart F or, alternatively, subpart B are followed. These subpart F requirements are the ones established in the 1993 rule mentioned above, and as periodically amended. The term

refrigerant

, however, was defined in § 82.152 for purposes of subpart F to mean “any substance consisting in part or whole of a class I or class II ozone-depleting substance that is used for heat transfer purposes and provides a cooling effect.” This definition did not include substitute substances. In addition, EPA had not yet applied the recycling and recovery requirements to non-ODS substitutes, and therefore these provisions which make clear how to qualify for the

de minimis

exemption for ODS refrigerants did not apply to substitute refrigerants.

EPA interprets section 608(c) such that the statutory

de minimis

exemption contained in section 608(c)(1) also applies to substitute refrigerants. Section 608(c)(2) states that, effective November 15, 1995, “paragraph 1 shall also apply” to the venting, release, or disposal of any substitute substance for class I or class II substances. As section 608(c)(2) incorporates “paragraph 1” it is reasonable to interpret it to also contain this

de minimis

exemption, which is included in paragraph 1 of section 608(c). However, the Act's exemption applies only to those

de minimis

releases “associated with good faith attempts to recapture and recycle or safely dispose of refrigerants” and the Act does not explicitly address what would be considered such “good faith attempts to recapture and recycle or safely dispose” of either ODS or substitute refrigerants. In fact, Title VI does not contain any further explanation or definition of those terms. Moreover, the statutory provisions that require EPA to promulgate regulations addressing recapturing and recycling requirements and safe disposal requirements in section 608(a) and 608(b) expressly mention that they apply to ODS refrigerants but are silent as to application to substitute refrigerants. This silence and the corresponding tension between these provisions creates an ambiguity in section 608 and EPA may fill that gap with a permissible interpretation.

Chevron, U.S.A., Inc.

Natural Res. Def. Council, Inc.

, 467 U.S. 837, 843-44 (1984).

Consistent with the interpretation of section 608(c)(2) as incorporating the

de minimis

exemption, prior to this rulemaking EPA's regulations at § 82.154(a)(2) stated that “[d]e minimis releases associated with good faith attempts to recycle or recover . . . non-exempt substitutes are not subject to this prohibition,” thus applying the statutory

de minimis

exemption from the venting prohibition to good faith efforts to recycle or recover non-exempt substitute refrigerants. However, in contrast to the regulations for ODS refrigerants, the regulations did not provide any specific provisions to explain what constitutes such a “good faith attempt” with respect to substitute refrigerants. Thus, the prior regulations were unclear as to what requirements or practices regulated parties must follow to qualify for the

de minimis

exemption, and thereby comply with the venting prohibition, for non-exempt substitute refrigerants.

EPA has discussed this issue in previous notices. On June 11, 1998, EPA proposed to apply the

de minimis

exemption in section 608(c)(1) to substitute refrigerants and to issue regulations under section 608(c)(2) that interpret, clarify, and enforce the venting prohibition for substitutes (63 FR 32044). EPA stated in that proposed rule, “[w]hile section 608(c) is self-effectuating, EPA regulations are necessary to define `

(d)e minimis

releases associated with good faith attempts to recapture and recycle or safely dispose' of such substances and to effectively implement and enforce the venting prohibition.” 63 FR 32046.

In the final rule issued March 12, 2004 (69 FR 11946), EPA extended the regulations interpreting and enforcing the 608(c)(1)

de minimis

exemption to blends containing an ODS component but not to refrigerants containing only substitutes. As stated in that rule at 69 FR 11949:

[V]enting of all substitute refrigerants, including HFC and PFC refrigerants (and

blends thereof) is prohibited under section 608(c), with the exception of

de minimis

releases associated with good faith attempts to recapture and recycle. The

de minimis

releases exception, however, is not self-effectuating, nor is it self-explanatory.

EPA believes that regulatory clarification is necessary to define such `

[d]e minimis

releases' and `good faith attempts to recapture and recycle or safely dispose of any such substance' and safely dispose of appliances to effectively implement and enforce the venting prohibition. Section 608(c)(1) in conjunction with 608(c)(2) of the Act allow for an exemption for

de minimis

releases associated with good faith attempts to recapture and recycle or safely dispose of substitutes for class I and class II ODSs used as refrigerants. A regulation reflecting the statutory requirement for recovery of substitute refrigerants is an essential part of a regulatory framework within which

de minimis

releases and good faith attempts to recapture and recycle or safely dispose of substitute refrigerants can be defined.

This interpretation that the statutory

de minimis

exemption applies to substitutes but is not self-explanatory is consistent with the interpretation of section 608(c)(1) and (2) that EPA articulates in this section. However, in the March 2004 Rule EPA did not finalize its proposal to extend all of the subpart F regulations to substitute refrigerants. See 69 FR 11953.

Following the March 12, 2004, rulemaking, the Administrator promulgated a direct final rule to amend the regulatory definitions of

refrigerant

and

technician,

as well as the venting prohibition, to correct and clarify the intent of those regulations (70 FR 19273, April 13, 2005). As part of that rule, EPA edited the regulatory venting prohibition to reflect the statutory

de minimis

exemption in section 608(c)(2). As explained at 70 FR 19275:

In accordance with section 608(c)(2) of Title VI of the Clean Air Act (as amended in 1990),

de minimis

releases associated with good faith attempts to recapture and recycle or safely dispose of such substitutes shall not be subject to the prohibition. EPA has not promulgated regulations mandating certification of refrigerant recycling/recovery equipment intended for use with substitutes; therefore, EPA is not including a regulatory provision for the mandatory use of certified recovery/recycling equipment as an option for determining

de minimis

releases of substitutes. However, the lack of a regulatory provision should not be interpreted as an exemption to the venting prohibition for non-exempted substitutes. The regulatory prohibition at § 82.154(a) reflects the statutory reference to

de minimis

releases of substitutes as they pertain to good faith attempts to recapture and recycle or safely dispose of such substitutes.

In order to emphasize that the knowing venting of HFC and PFC substitutes remains illegal during the maintenance, service, repair, and disposal of appliances and to make certain that the

de minimis

exemption for refrigerants remains in the regulatory prohibition, § 82.154(a) is amended to reflect the venting prohibition of section 608(c)(2) of the Act.

In that action, EPA added the phrase “[d]e minimis releases associated with good faith attempts to recycle or recover refrigerants

or non-exempt substitutes

are not subject to this prohibition” to § 82.154(a)(2) (emphasis added). However, because EPA has not extended the regulatory recycling and recovery requirements to substitute refrigerants, the regulations have not provided clarity or certainty how this exception applies to non-exempt substitute refrigerants that do not contain an ODS. Moreover, as for ODS, some amount of substitute refrigerant is released during the maintenance, servicing, repair, or disposal of appliances, even if precautions to avoid such releases are taken. For ODS refrigerants, the rules have provided certainty to the regulated community that if specific identified practices are followed, regulated entities would not be held liable for releases of small amounts of refrigerant incidental to these actions. These regulations have supported the recovery or recycling of ODS refrigerants and reduced the emissions of such substances. In other words, for ODS, EPA has reasonably interpreted the

de minimis

exemption to apply only to the small amount of emissions that cannot be prevented by following the regulatory requirements. This interpretation of the

de minimis

exemption is equally reasonable for non-exempt substitute refrigerants. Accordingly, to provide the same clarity and certainty to the regulated community for substitute refrigerants, it is important to clarify how this exemption applies to non-exempt substitute refrigerants that do not contain an ODS. To do so, EPA is finalizing its proposal to extend the amended regulations concerning emissions reduction and recapture and recycling of CFC and HCFC refrigerants, found at 40 CFR part 82, subpart F, to all substitute refrigerants that have not been exempted from the venting prohibition under § 82.154(a)(1).

These regulations establish standards and requirements related to the maintenance, servicing, repair, or disposal of appliances and IPR that use ODS or non-exempt substitutes as refrigerants. They are designed to minimize or avoid knowing releases or disposal, in the course of those activities, of ODS and non-exempt substitute refrigerants in a manner which allows that substance to enter the environment. For example, the regulations establish requirements to minimize emissions during appliance maintenance, servicing, or repair (

e.g.

, by requiring that technicians recover refrigerant from an appliance before servicing and by setting standards for the repair of appliances that have leaked above the applicable threshold), as well as disposal (

e.g.

, by requiring the use of certified recovery equipment to remove refrigerant from the appliance before the final disposal). Accordingly, the regulations finalized in this action fall within the scope of EPA's authority to interpret and explain the venting prohibition, and to give regulated entities greater certainty about what is required to comply.

EPA is also adopting a broader interpretation of the venting prohibition under CAA sections 608(c)(1) and (2) in this action. As discussed in more detail in the proposal for this action (80 FR 69486), in the 1993 Rule EPA stated that the venting prohibition did not “prohibit `topping off' systems, which leads to emissions during the use of equipment” but explained that the “provision on knowing releases does however, include the situation in which a technician is practically certain that his or her conduct will cause a release of refrigerant during the maintenance, service, repair, or disposal of equipment” or fails to appropriately investigate facts that demand investigation (58 FR 28672). The proposal also explained that EPA had subsequently moved toward a broader interpretation of the venting prohibition in the proposed 2010 Leak Repair Rule (80 FR 69486, quoting 75 FR 78570). EPA concludes that its statements in the 1993 Rule presented an overly narrow interpretation of the statutory venting prohibition. Consistent with the direction articulated in the proposed 2010 Leak Repair Rule, EPA is adopting a broader interpretation. When refrigerant must be added to an existing appliance, other than when originally charging the system or for a seasonal variance, the owner or operator necessarily knows that the system has leaks. At that point the owner or operator is required to calculate the leak rate. If the leaks exceed the applicable leak rate for that particular type of appliance, the owner or operator will know that absent repairs, subsequent additions of refrigerant will be released in a manner that will permit the refrigerant to enter the environment. Therefore, EPA interprets section 608(c) such that if a person adds refrigerant to an appliance that he or she knows is leaking, he or she also violates the venting prohibition unless he or she has complied with the applicable practices

referenced in § 82.154(a)(2), as revised, including the leak repair requirements, as applicable.

This action extending the regulations under subpart F to non-exempt substitutes is additionally supported by the authority in section 608(a) because regulations that minimize the release and maximize the recapture and recovery of non-exempt substitutes will also reduce the release and increase the recovery of ozone-depleting substances. Improper handling of substitute refrigerants is likely to contaminate appliances and recovery cylinders with mixtures of ODS and non-ODS substitutes, which can lead to illegal venting because such mixtures are difficult or expensive to reclaim or appropriately dispose of. Under the prior definition of

refrigerant

, any substance that consists in whole or in part of a class I or class II ODS and is used for heat transfer and provides a cooling effect, is a refrigerant and is subject to the requirements for ODS. However, when a regulated entity believes it is using a substitute refrigerant, and that substitute becomes contaminated with ODS, the contamination may not be apparent to the user, and thus, the user may not be aware that the requirements for refrigerants apply to that substance. This confusion can also lead to illegal venting of ODS. In short, the authority to promulgate regulations regarding the use of class I and II substances encompasses the authority to establish regulations regarding the proper handling of substitutes where this is needed to reduce emissions and maximize recapture and recycling of class I and II substances. Applying consistent requirements to all non-exempt refrigerants will reduce complexity and increase clarity for the regulated community and promote compliance with those requirements for ODS refrigerants, as well as their substitutes.

2. Recordkeeping Provisions

In this action, EPA is also establishing new recordkeeping requirements, as well as extending existing recordkeeping requirements to non-exempt substitutes. EPA's authority to establish and extend these requirements is supported by CAA sections 608(a), 608(c), and 114, consistent with the description of these authorities offered above. These new recordkeeping requirements are an important part of EPA's efforts to address illegal venting of refrigerants, improve accounting of refrigerants in affected appliances, and facilitate enforcement of requirements under section 608. For example, EPA is establishing a new recordkeeping requirement for the disposal of appliances containing more than five and less than 50 pounds of refrigerant. Section 608(a) gives EPA explicit authority to implement requirements that reduce ODS refrigerant emissions to the lowest achievable level. This recordkeeping requirement, along with other recordkeeping requirements in this rule, further the recovery, reclamation, and/or destruction of ODS refrigerants and discourages the illegal venting of such refrigerants from affected appliances. Because it minimizes the emission of ODS refrigerant, EPA has authority for this requirement as it relates to ODS appliances under 608(a). Additionally, providing a consistent standard for ODS and non-exempt substitute refrigerants will facilitate the recovery, reclamation, and/or destruction of both ODS and non-ODS refrigerants and, accordingly, will reduce the emission of such refrigerants. EPA will continue to evaluate how best to use the information to promote the recovery of refrigerants and compliance with these provisions.

EPA also has authority under section 114 of the CAA to require that technicians document that appliances containing an ODS refrigerant or a non-exempt substitute refrigerant have been properly evacuated prior to disposal. Section 114 of the CAA provides the primary authority to establish these recordkeeping and reporting requirements because it provides EPA authority to require recordkeeping and reporting in carrying out provisions of the CAA, including the venting prohibition under CAA sections 608(c) and the requirements under 608(a). Because these records will help EPA determine whether requirements under sections 608(c) and 608(a) are being complied with, this requirement falls within the scope of section 114.

3. Amendments Related to Practices and Requirements for ODS

In addition to extending the existing regulations in subpart F to non-exempt substitute refrigerants, EPA is also revising and augmenting the existing requirements that apply to ozone-depleting substances, including: Lowered leak rates, periodic leak inspections for equipment that has leaked above the leak threshold, leak repair verification tests, and recordkeeping requirements for the disposal of appliances containing more than five and less than 50 pounds of refrigerant. EPA is also finalizing its proposal to update and revise subpart F to improve clarity and enforceability. EPA's authority for these amendments is based primarily on section 608(a), which requires EPA to promulgate regulations regarding the 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.” In addition, because EPA is further elaborating the requirements and practices that regulated parties must follow to qualify for the

de minimis

exemption from the venting prohibition for ODS, EPA is drawing on its authority under section 608(c)(1). EPA's authority for these actions is also supplemented by section 301(a) and 114, in the same way as described earlier in this notice.

4. Provisions Related to MVAC and MVAC-Like Appliances

While section 608 covers all appliances,

section 609 of the CAA directs EPA to establish requirements to prevent the release of refrigerants during the servicing of MVACs specifically. MVACs are defined under EPA's section 608 implementing regulations at 40 CFR part 82, subpart F as “any appliance that is a motor vehicle air conditioner as defined in 40 CFR part 82, subpart B.” 40 CFR 82.152. Under section 609, in 40 CFR part 82, subpart B, MVACs are defined as “mechanical vapor compression refrigeration equipment used to cool the driver's or passenger's compartment of any motor vehicle. . . .” 40 CFR 82.32(d).

For EPA's discussion on the definition of

appliance

, see Section IV.A.

A motor vehicle is defined under subpart B as “any vehicle which is self-propelled and designed for transporting persons or property on a street or highway, including but not limited to passenger cars, light duty vehicles, and heavy duty vehicles. This definition does not include a vehicle where final assembly of the vehicle has not been completed by the original equipment manufacturer.” 40 CFR 82.32(c).

Under section 609, no person repairing or servicing motor vehicles for consideration may perform any service on an MVAC that involves the refrigerant without properly using approved refrigerant recovery or recovery and recycling equipment and no such person may perform such service unless such person has been properly trained and certified. Refrigerant handling equipment must be certified by EPA or an independent organization approved by EPA. Section 609 also prohibits the sale or distribution of any class I or class II MVAC refrigerant in a container of less

than 20 pounds to any person who is not certified under section 609.

Regulations issued under section 609 are in 40 CFR part 82, subpart B, and include information on prohibitions and required practices (§ 82.34), approved refrigerant handling equipment (§ 82.36), approved independent standards testing organizations (§ 82.38), requirements for technician certification and training programs (§ 82.40), and certification, recordkeeping, and public notification requirements (§ 82.42). Appendices A-F of subpart B provide standards for minimum operating requirements for MVAC servicing equipment.

Because MVACs are defined in subpart F as an “appliance” (§ 82.152), the section 608 regulations found in subpart F are generally applicable to MVAC systems. However, because servicing and technician training and certification are regulated under section 609, EPA's section 608 regulations in subpart F defer to those requirements in subpart B. Procedures involving MVACs that are not regulated under section 609, such as the disposal of MVACs and the purchase of refrigerant for use in MVACs besides ODS refrigerant in containers less than 20 pounds, are covered by section 608. The prohibition in section 608 against venting ODS and substitute refrigerants is also applicable to refrigerants used in MVAC systems.

EPA also regulates MVAC-like appliances under subpart B. MVAC-like appliances are used to cool the driver's or passenger's compartment of off-road vehicles, including agricultural and construction vehicles.

While these types of systems are outside of the scope of the definition of

motor vehicle

established in subpart B, there are similarities between MVAC-like appliances and MVAC systems. In the 1993 Rule, under the authority of section 608, EPA adopted requirements for the certification and use of recycling equipment for MVAC-like appliances in subpart B. MVAC-like appliances may only be serviced by a certified technician and this requirement is not limited to those servicing for consideration, but MVAC-like technicians have the option to be certified under section 608 or 609.

We are amending the subpart F definition of “MVAC-like appliance” to replace the term “off-road motor vehicle” with the term “off-road vehicles or equipment.” This revision is not intended to effect a substantive change in the equipment covered by this definition but rather simply is intended to clarify the definition.

Through this rulemaking EPA is finalizing its proposal to apply the provisions of section 608 to non-exempt ODS substitutes, including those used in MVAC and MVAC-like appliances. EPA is not extending the regulations under section 609 as part of this rulemaking because the 609 regulations have been applicable to all substitute substances since 1995.

The Agency has indicated plans to issue a separate proposed rule to consider adopting standards from the Society of Automotive Engineers (SAE) for servicing equipment in 40 CFR subpart B. These standards are: SAE J2843 R-1234yf Recovery/Recycling/Recharging Equipment for Flammable Refrigerants for Mobile Air-Conditioning Systems, SAE J2851 Recovery Equipment for Contaminated Refrigerant from Mobile Automotive Air Conditioning Systems, and SAE J3030 Automotive Refrigerant Recovery/Recycling Equipment Intended for Use with Multiple Refrigerants. In a future rulemaking, EPA intends to propose to incorporate by reference these standards developed by SAE International's Interior Climate Control Committee.

5. Consideration of Economic Factors

Section 608 of the CAA does not explicitly address whether costs or benefits should be considered in developing regulations under that section. The statutory standards under section 608(a) against which the regulations concerning the use and disposal of ozone-depleting substances are to be measured are whether they “reduce the use and emission of such substances to the lowest achievable level” and “maximize the recapture and recycling of such substances.” The phrase “lowest achievable level” as used in section 608(a)(3) is not clear on its face as to whether economic factors should be considered in determining what is the “lowest achievable level.” Title VI does not further explain or define the term nor does it expressly state whether economic factors may or must be considered. Thus, EPA has discretion to adopt a reasonable interpretation. EPA has previously interpreted this phrase to allow the consideration of economic factors.

See

58 FR 28659, 28667 (May 14, 1993). EPA did not propose to revise that interpretation and has considered economic as well as technological factors in the development of this rule.

The phrase “de minimis releases associated with good faith attempts to recapture and recycle or safely dispose of any such substance” as used in section 608(c)(1) and as applied to substitutes through section 608(c)(2) is similarly not clear on its face as to whether economic factors may be considered in determining what is

de minimis.

Title VI does not further address this issue. Thus, EPA has discretion to adopt a reasonable interpretation. EPA interprets this phrase to allow the consideration of economic factors. The Senate Manager's Statement for the Clean Air Act Amendments of 1990 indicates that “the exception is included to account for the fact that in the course of properly using recapture and recycling equipment, it may not be possible to prevent some small amount of leakage” (Cong. Rec. S 16948 (Oct. 27, 1990),

reprinted in

1 A Legislative History of the Clean Air Act Amendments of 1990, at 929 (1993)). EPA does not read this statement as expressing an intent that the Agency consider only technological factors in setting standards for recapture and recycling equipment and the proper use of such equipment. Rather, EPA understands it as meaning that once those standards are set, only the small amount of emissions that cannot be prevented by following such standards should be exempted.

Because the statutory language does not dictate a particular means of taking economic factors into account, if at all, EPA has discretion to adopt a reasonable method for doing so. In developing this rule, EPA has not applied a strict cost-benefit test, but rather has focused primarily on the state of air conditioning and refrigeration best practices and recovery technology, while also giving consideration to costs and benefits. The fact that industry has identified and uses these best practices indicates they are affordable.

EPA considered cost for many specific aspects of this rule. For instance, as discussed in the leak repair section (Section IV.F of this notice), EPA considered what is achievable from a technical perspective, while also considering the costs of those practices and technologies and the benefits from their use, when determining whether to establish new requirements and extending existing requirements to non-exempt substitute refrigerants. See the technical support document

Analysis of the Economic Impact and Benefits of Final Revisions to the National Recycling and Emission Reduction Program

in the docket for sensitivity analyses conducted on various options. Generally, the leak repair requirements finalized in this action take into account that the variability of those conditions in the field is significant in each air-conditioning and refrigeration sector. For example, some appliances generally have more leaks than others. An industrial process refrigeration appliance can have thousands of pounds of refrigerant running through miles of piping, resulting in numerous opportunities for leaks to occur, whereas a household refrigerator typically has about one pound of refrigerant in a hermetically sealed refrigerant loop that rarely leaks. The

requirements in this rule reflect that difference.

As another example, EPA considered the costs of extending the refrigerant sales restriction to small cans of non-exempt substitutes used for MVAC servicing. EPA decided a more cost effective method of reducing emissions is requiring that manufacturers install self-sealing valves on small cans rather than limiting the sale of small cans to certified technicians only. As a final example of how EPA considered costs in this rulemaking, EPA relied heavily on the existing program and requirements already in place for ODS refrigerants rather than developing a new and separate set of requirements for non-exempt substitutes. This will allow the regulated community to in many instances use or adapt existing compliance procedures for non-exempt substitutes rather than having to develop wholly new approaches to managing compliance. This approach should help regulated entities to better predict and manage compliance costs.

B. Comments and Responses Related to EPA's Authority

This section summarizes many comments related to EPA's authority under the Clean Air Act to issue this rule and EPA's responses. Other comments related to EPA's authority for this action are addressed in the response to comments document found in the docket for this action.

1. Comment: EPA Does Not Have Authority To Regulate Substitutes That Have Limited or No Impact on Stratospheric Ozone Under Section 608

Some comments asserted that EPA does not have the authority to extend the existing refrigerant management provisions in subpart F to non-ozone depleting refrigerants. Some commenters stated that under a plain language reading of section 608(a) it is clear that regulations to reduce use and emissions apply only to class I and class II substances and not substitutes. These comments said the language of section 608 as a whole authorizes a wide range of prescriptive regulations to reduce the use and emissions of class I and class II refrigerants but mentions substitutes only twice: That their use be promoted and the general requirement that their knowing venting is prohibited.

On the contrary, other comments agreed that EPA had authority to extend these regulations to substitutes. One such comment stated: “We believe that both the language of section 608 and the Agency's discretionary authority allow the extension of section 608's requirements to substitutes for ODS in the regulations.”

These commenters noted that extending these regulations to substitutes allows for a coherent and robust regime to address venting across the full suite of appliances and applications, and that applying the regulatory regime to substitute refrigerants would more fully allow for and incentivize the recovery and reclamation of both ODS and substitutes. These comments concluded that because ODS and substitutes can be used interchangeably, the regulation of substitutes reinforces the regulation of ODS and more reliably reduces ODS emissions. Another commenter who generally believes the Agency does not have authority to apply the leak repair provisions to appliances using substitute refrigerants does concede that there may be provisions of subpart F which are directly related to emissions occurring in the course of maintenance, service, repair or disposal activities and might be reasonably extended to substitute refrigerants.

Comment submitted by Natural Resources Defense Council and Institute for Governance and Sustainable Development, David Doniger, et. al., pg. 3. EPA-HQ-OAR-2015-0453-0121.

EPA disagrees that its regulatory authority under CAA section 608 extends only to class I and class II (ODS) substances and not to substitutes. EPA also disagrees with comments contending that, as a factual matter, extension of the refrigerant management regulations to substitutes would not reduce emissions of ODS and maximize the recapturing and recycling of ODS. Section 608 expressly addresses substitute refrigerants in the venting prohibition in section 608(c)(2). As explained previously in this notice, EPA's authority for extending the refrigerant management regulations to substitute refrigerants is based primarily on section 608(c)(2) (via interpretation, explanation, and enforcement of the venting prohibition for substitutes) and secondarily on section 608(a) (via the corresponding reductions in ODS emissions and increases in ODS recapture and recycling that are expected to result from requiring consistent practices for ODS and substitute refrigerants), with additional support from CAA sections 301 and 114.

More specifically with respect to section 608(a), that section states that the regulations under that section shall include requirements that reduce the use and emission of ODS to the lowest achievable level and that maximize their recapture and recycling. EPA's interpretation that section 608(a) supports the extension of the refrigerant management regulations to substitutes is based on reducing emissions of ODS and maximizing recapturing and recycling of ODS. This is because requiring practices that are consistent for both ODS and for substitutes reduces the likelihood that a person maintaining, servicing, repairing, or disposing of an appliance that uses ODS as a refrigerant mistakenly believes that it contains a substitute refrigerant and fails to apply the proper procedures for ODS, leading to increased ODS emissions or failure to recover or reclaim ODS. It is also because in the course of servicing, repairing, or maintaining appliances there is a potential for mixing ODS and substitute refrigerants, which may lead to venting or release of the mixture due to the difficulty of reclamation. EPA has explained that the venting prohibition applies to all refrigerants consisting in whole or in part of an ODS, such as a blend with an HFC component. (See 69 FR 11949). Accordingly, the commenters' statements that section 608(a) only applies to class I and class II substances fail to recognize that regulation of substitutes can help effectuate the statutory purposes mentioned in section 608(a). EPA is relying in part on section 608(a) for the extension of regulatory requirements to substitutes because it interprets this provision to support regulation of substitutes when such regulations can help achieve the purposes listed in section 608(a). The extension of regulatory requirements to substitutes in this action is supported by section 608(a) because that extension of requirements to substitutes is expected to reduce ODS emissions and further maximize the recovery and reclamation of ODS. After consideration of all the comments, EPA concludes that it has authority to extend the refrigerant management regulations to substitutes, and that section 608(a) is a relevant source of authority because applying a consistent and coherent regulatory regime to both ODS and substitute refrigerants improves the application of the requirements to ODS, promoting the recovery and reclamation of ODS and reducing ODS emissions. Such ODS-focused goals are well within EPA's authority under CAA section 608(a).

Although these comments do not relate to EPA's authority to regulate ODS, we do note for completeness' sake that CAA section 608(a) also provides authority for the portions of this rulemaking that revise the refrigerant management requirements as those apply directly to ODS.

Commenters also disagreed with EPA's statement that there is ambiguity in the CAA regarding the Agency's authority to create a comprehensive regulatory program akin to that

applicable to class I and class II ODS. These commenters expressed that Congress explicitly addressed substitutes in section 608(c)(2) and did not in section 608(a) and that Congress was fully aware and capable of granting EPA authority to regulate substitutes under section 608(a) and it chose not to do so. They further commented that Congress knew which provisions of Title VI it wished to extend to substitutes and which it did not, and pointed to sections 609, 612, and 615 as allowing EPA to regulate substitutes. These comments concluded that Congress demonstrated that it knew how to include substitutes in refrigerant management regulations if it wanted to.

EPA recognizes that Congress expressly mentioned substitutes in certain sections of Title VI of the CAA, such as section 608(c)(2). In EPA's interpretation of section 608, the fact that Congress expressly applied the venting prohibition to substitutes in section 608(c)(2) supports this action because this action clarifies how EPA interprets that venting prohibition and explains what actions must be taken during the maintenance, servicing, repair, or disposal of appliances and IPR to avoid violating the venting prohibition. The inclusion of substitutes in section 608(c)(2) also indicates that Congress contemplated that regulation of substitutes would play a role in implementing section 608. The ambiguity in section 608 is that Congress created an explicit prohibition on venting substitute refrigerants in the course of maintaining, servicing, repairing, or disposing of appliances or IPR, and also provided an exception to that prohibition for “de minimis releases associated with good faith attempts to recapture and recycle or safely dispose” of such substances. CAA section 608(c)(1); see also CAA section 608(c)(2) (applying paragraph (c)(1) to the venting, release, or disposal of substitute refrigerants). Congress, however, did not define what releases would be considered “

de minimis”

nor which activities would be considered “good faith attempts to recapture and recycle or safely dispose” of such substances. Where Congress has not directly spoken to an issue or has left ambiguity in the statute, that silence or ambiguity creates an assumption that “Congress implicitly delegated to the agency the power to make policy choices that represent a reasonable accommodation of conflicting policies that are committed to the agency's care by the statute.”

National Ass'n of Mfrs.

United States DOI,

134 F.3d 1095, 1106 (D.C. Cir. 1998). As the U.S. Supreme Court has explained, the “power of an administrative agency to administer a congressionally created . . . program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.”

Chevron,

467 U.S. at 843-44. The Court later explained, “[w]e accord deference to agencies under

Chevron,

. . . because of a presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.”

Smiley

Citibank (s.D.), N.A,

517 U.S. 735, 740-741 (1996). Accordingly, Congress's silence with regard to the venting prohibition and the exception for certain releases leaves a gap for the Agency to fill, as it is doing in this rulemaking.

In addition to the statutory interpretation and the principle of

Chevron

deference discussed above, the legislative history further supports the notion that Congress anticipated and intended for the Agency to establish regulations that would further interpret, explain, and enforce the exception to the venting prohibition. A Senate Report accompanying a version of the Senate bill for the Clean Air Act Amendments of 1990, which enacted Title VI, addressed the venting prohibition and described that it would include “[e]xceptions . . . for de minimis releases associated with good faith attempts to recapture, recycle and safely dispose of” the substances used as refrigerants in household appliances, commercial refrigeration and air conditioning units.

Report of the Committee on Environment and Public Works United States Senate, Report Accompanying S. 1630 (S. Rept. 101-228)

(December 20, 1989) at 396 (

reprinted in

4 A Legislative History of the Clean Air Act Amendments of 1990, at 8736 (1993)). This report further stated that the standards and requirements that EPA was required to promulgate “should include provisions to foster implementation of this prohibition, including guidance on what constitutes `de minimis' and `good faith'.”

Id.

Thus, EPA reasonably interprets the ambiguity in section 608(c) to mean that in creating the exception to the venting prohibition, Congress intended for the Agency to provide additional specificity regarding how a regulated entity would qualify for this exception. This rulemaking provides such additional specificity and further articulates the policy of how this exception is interpreted, explained, and enforced.

While EPA acknowledges that section 608(a) does not explicitly mention substitutes, we disagree with the conclusion that the comment draws from that. The fact that Congress required EPA to address ODS in a certain manner under section 608(a) is not the same as prohibiting EPA from addressing other refrigerants in the same manner. EPA has explained in the preceding response to comments how it interprets section 608(a) to support this rulemaking.

Some commenters contend that Congress specifically listed class I and class II substances for coverage under the regulations and under the principle of

expressio unius est exclusio alterius,

regulations cannot be applied to refrigerants that are neither class I or class II substances. This rule of statutory interpretation, which has limited force in an administrative law setting, means that the inclusion of one thing implies the exclusion of another thing. However, the fact that Congress mandated certain measures for ODS but was silent regarding appropriate measures for substitutes does not mean that Congress prohibited EPA from adopting similar measures for substitutes.

See Cheney R.R. Co.

ICC,

902 F.2d 66, 69 (D.C. Cir. 1990) (“The contrast between Congress's mandate in one context with its silence in another suggests not a prohibition but simply a decision

not to mandate

any solution in the second context,

i.e.,

to leave the question to agency discretion.”)

Commenters stated that section 608(c) is self-implementing and no promulgation of regulations by EPA is required or contemplated to implement such prohibition. In contrast, 608(a) and (b) require EPA to promulgate regulations to establish “standards and requirements.” These standards and requirements are different in kind and broader than the 608(c) statutory prohibition. EPA cannot merge the distinct requirements of 608(a) and (b) with the statutory prohibition of 608(c). Another commenter stated that in trying to apply section 608(b) to any substitute substance, EPA is inferring authority that is not there.

EPA agrees that the prohibition under 608(c) as it applies to the knowing venting or releasing of ODS and substitutes is itself self-implementing. However, that fact does not preclude EPA from establishing regulations to include the prohibition in the overall context of the regulatory scheme and to promulgate rules to further interpret, explain, and enforce it, including by

providing certainty to enhance compliance. Indeed, EPA's prior regulations at 40 CFR 82.154 included the venting prohibition. More specifically, these regulations provided that “no person maintaining, servicing, repairing, or disposing of appliances may knowingly vent or otherwise release into the environment any refrigerant or substitute from such appliances” and then provided for exceptions from this prohibition for specified substitutes in specified end-uses. These exceptions implemented the discretion Congress left EPA under 608(c)(2) to exempt certain releases from the venting prohibition, if the Administrator has determined that “venting, releasing, or disposing of such substance does not pose a threat to the environment.” CAA section 608(c)(2). Contrary to the comment, the inclusion of this discretion in section 608(c)(2) indicates that Congress intended for the EPA to have authority to implement aspects of the prohibition and in fact left gaps in this section that it expected EPA would fill as appropriate.

Similarly, as discussed in the preceding response, the legislative history indicates that in establishing the venting prohibition, Congress expected EPA to promulgate regulatory “provisions to foster implementation of this prohibition, including guidance on what constitutes `de minimis' and `good faith'.”

Report of the Committee on Environment and Public Works United States Senate, Report Accompanying S. 1630 (S. Rept. 101-228)

(December 20, 1989) at 396 (

reprinted in

4 A Legislative History of the Clean Air Act Amendments of 1990, at 8736 (1993)). Consistent with that Congressional intent, the prior regulations at 40 CFR 82.154 included provisions clarifying that “[ODS] releases shall be considered de minimis only if they occur when” certain regulatory requirements are observed. 40 CFR 82.154(a)(2). However, those regulations did not provide the same clarity regarding releases of non-exempt substitute refrigerants or what practices would be considered to fall within the ambit of “good faith attempts to recycle or recover” non-exempt substitute refrigerants. 40 CFR 82.154(a)(2). Because Congress provided this exception to the venting prohibition for substitutes under section 608(c)(2) but did not specify what practices or actions should be taken to qualify for this exception, it is reasonable to interpret this provision as indicating that Congress contemplated that EPA would resolve this ambiguity.

While Congress did not establish specific rulemaking authority under section 608(c)(2), Congress did provide a general grant of authority in CAA section 301(a)(1) to “prescribe such regulations as are necessary to carry out [the Administrator's] functions under” the CAA. This rulemaking authority supplements EPA's authority under section 608 by authorizing EPA to promulgate regulations necessary to carry out its functions under section 608, including regulations necessary to interpret the venting prohibition and exceptions to it.

EPA disagrees with the commenter that it is impermissibly merging the distinct requirements of CAA sections 608(a) and (b) with section 608(c). While EPA's regulations under section 608(b) are simply one part of the regulations required under section 608(a), EPA is not relying on section 608(b) to justify its extension of the section 608 regulations to substitutes in this rulemaking. The role of EPA's section 608(a) authority in this rulemaking has been discussed above, in a prior response to comment. Moreover, as noted above, the fact that Congress required EPA to address ODS refrigerants in specific way under section 608(a), or section 608(b) for that matter, is not the same as precluding EPA from addressing other refrigerants in a similar fashion. Likewise, where EPA has authority to establish regulations for non-exempt substitute refrigerants, the fact that it has exercised its authority to establish similar regulations for other refrigerants does not prevent it from exercising its authority to regulate non-exempt substitute refrigerants in a similar manner.

One commenter stated that using section 608(c) to establish the same requirements as authorized under section 608(a) renders section 608(a) null and stated that statutory language should not be read in a manner that renders other provisions of the statute inconsistent, meaningless or superfluous.

EPA disagrees with this comment. Unlike section 608(c), section 608(a) is not limited to refrigerants. EPA has applied its authority under section 608(a) to establish or consider regulations for ODS in non-refrigerant applications. As an example, in 1998, EPA issued a rule on halon management under the authority of section 608(a)(2) (63 FR 11084, March 5, 1998). In that action, EPA noted that section 608(a)(2) “directs EPA to establish standards and requirements regarding the use and disposal of class I and II substances other than refrigerants.” 63 FR 11085. Similarly, EPA considered whether to establish a requirement to use gas impermeable tarps to reduce emissions of methyl bromide under section 608(a)(2), ultimately determining not to do so for technological and economic reasons. 63 FR 6008 (February 5, 1998). In that action, EPA noted: “[s]ection 608(a)(1) of the Act provides for a national recycling and emission reduction program with respect to the use and disposal of Class I substances used as refrigerants. Section 608(a)(2) provides for such a program with respect to Class I and Class II substances not covered by section 608(a)(1).” 63 FR 6008. Accordingly, this interpretation of section 608(c)(2) to allow EPA to establish requirements for non-exempt substitute refrigerants similar to those established under section 608(a) for ODS refrigerants does not render section 608(a) null or superfluous. Although EPA interprets its substantive authority under both sections 608(a) and 608(c) to support application of the refrigerant management requirements to both ODS and non-exempt substitute refrigerants, that is different from asserting that its section 608(c) authority would extend to any requirement that could be imposed under section 608(a). EPA was required to establish certain regulations for ODS refrigerants under section 608(a) and then decided to use those provisions to interpret and explain the venting prohibition for ODS under section 608(c). The fact that EPA is now electing to use the same requirements under section 608(c) for substitutes does not render 608(a) a nullity. EPA could have established different requirements to interpret and explain the venting prohibition, but for the reasons discussed above, decided to make the requirements consistent for both ODS and substitutes.

2. Comment: Congress Did Not Regulate Substitutes Because It Wanted To Create Incentives To Use Substitute Refrigerants

One commenter asserted that applying detailed refrigerant management requirements to substitutes discourages the development of substitutes as it eliminates the incentive to operate with fewer regulatory requirements. Another commenter stated that the current regulations provide an opt-out incentive to owners that voluntarily retrofit to a non-ozone depleting substitute and suggested that EPA should seek to revise the proposed rule so that it continues to provide similar incentives.

EPA disagrees that applying the refrigerant management requirements to non-exempt substitute refrigerants will discourage the development of substitutes. At this point in time, there are other incentives to either retrofit or

replace existing equipment that relies on ODS. Most ODS have been completely phased out and the HCFC phaseout is well underway. Allowances for domestic consumption of the most common HCFC refrigerant, HCFC-22, are set at 5.6 percent of baseline for 2016 and will decline to zero in 2020 (40 CFR 82.16, 82.15(e)). In addition, use restrictions issued pursuant to section 605(a) prohibit use of newly produced HCFC-22 in equipment manufactured on or after January 1, 2010 (40 CFR 82.15(g)(2)). The section 605(a) use restrictions further prohibit use of newly produced HCFC-123 in equipment manufactured on or after January 1, 2020 (40 CFR 82.15(g)(4)). While used HCFCs are not subject to these restrictions, the HCFC phaseout and the restrictions on use of newly produced HCFCs provide clear market signals regarding future availability of HCFC refrigerants.

In addition, while some provisions of the statute indicate Congressional intent to encourage companies to use safer alternatives, other provisions indicate that Congress was also concerned about the potential impacts of unregulated releases of these substitute refrigerants. Section 608(c)(2) is in the latter category, as it extends the venting prohibition to substitute refrigerants, unless EPA determines that such releases do not pose a threat to the environment. Accordingly, the application of these regulatory requirements to non-exempt substitute refrigerants provides clarity and certainty to owners, operators, and people servicing, maintaining, repairing, or disposing of air conditioning and refrigeration equipment of how they can avoid violating the venting prohibition. Such clarity and certainty is consistent with EPA's efforts through other regulatory programs to facilitate and encourage the use of substitute refrigerants.

Other commenters stated that Congress did not extend the refrigerant management requirements to substitutes, likely because it wanted to create incentives for companies to switch to safer alternatives.

EPA responds that Congress did extend the venting prohibition to substitute refrigerants and left to EPA's discretion how to interpret and enforce that prohibition. While Congress did not require EPA to interpret and enforce the venting prohibition by regulating substitute refrigerants in the same manner as ODS, neither did it prevent EPA from doing so.

Commenters also stated that 608(a)(3) encourages EPA to use the regulations under that provision to promote the use of safe alternatives. EPA responds that while section 608(a)(3) provides that the regulations that are required under section 608(a) “may include requirements . . . to promote the use of safe alternatives pursuant to section [612],” whether to include such provisions is discretionary, not mandatory. While Congress left such regulations to EPA's discretion, Congress directly applied the venting prohibition to substitute refrigerants under section 608. Moreover, the legislative history for section 608 recognizes the distinctions between sections 612 and 608, stating: “The fact that a particular substance has been identified by the Administrator as a `safe substitute' for purposes of section 612, does not affect the requirement for a separate determination under [section 608]. The purposes of section 612 and of this section are different and substances approved under section 612 will not automatically qualify for exclusion from the prohibition on venting that is included in this section.” Statement of Senate Managers, S. 1630, The Clean Air Act Amendments of 1990,

reprinted in

1 A Legislative History of the Clean Air Act Amendments of 1990, at 928 (1993). Accordingly, EPA does not interpret the discretion provided by section 608(a)(3) to diminish its ability to interpret, explain, and enforce section 608(c) as it is doing in this rule.

3. Comment: Section 608 Does Not Authorize EPA To Regulate the Normal Operation of Refrigerant Equipment

Commenters stated that EPA's authority under section 608 is limited to regulating actions taken during servicing, repair, or disposal of refrigeration equipment, or class I and II refrigerants evacuated during such servicing and repair. These comments further stated that EPA's authority extends only to technicians and that nothing in section 608 would enable EPA to impose liability on the equipment owner or operator.

With regard to the actions that are within the scope of section 608(c), as explained earlier in this notice, EPA interprets section 608(c) to convey authority to interpret, explain, and enforce the venting prohibition for both ODS and substitute refrigerants, and that prohibition applies to the maintenance, service, repair, or disposal of appliances and IPR. As explained elsewhere in this rulemaking, this action applies regulations to non-exempt substitute refrigerants that are related to the maintenance, service, repair, or disposal of such appliances or to providing persons engaged in such activities with additional clarity and certainty on how to ensure that their actions comport with the venting prohibition and the

de minimis

exemption to it. For example, the technician certification provisions relate to who can maintain, service, or repair an appliance and the evacuation and recovery equipment provisions relate to how to maintain, service, repair or dispose of an appliance. Furthermore, the comment omits the concept of maintenance, which is included in section 608(c). EPA notes that the definition of the term “maintain” includes “to keep in an existing state; preserve or retain” and to “keep in a condition of good repair or efficiency.” The American Heritage College Dictionary, 4th ed. (Houghton Mifflin, 2002), at 834; see also

http://www.merriam-webster.com/dictionary/maintain

(including in the definition of maintain “to keep in an existing state (as of repair, efficiency, or validity): Preserve from failure or decline <maintain machinery>”) (last accessed May 31, 2016). Thus, “maintenance” and “maintaining” include a broad range of activities involved in preserving equipment in normal working order.

EPA noted in a prior response that section 608(c) is limited to refrigerants while section 608(a) is not. However, the comment is incorrect that section 608(c) is limited to the activities of a technician. Section 608(c)(2) refers to “any person,” and “person” is defined broadly in CAA section 302, as well as in subpart F to 40 CFR part 82. More specifically, section 302(e) defines “person” to “include[ ] an individual, corporation, partnership, association, State, municipality, political subdivision of a State, and any agency, department, or instrumentality of the United States and any officer, agent or employee thereof.” Thus, the definition clearly is not limited to technicians. Furthermore, the current statement of purpose and scope in subpart F, § 82.150, lists appliance owners and operators as one of the persons to which the subpart applies.

When EPA initially promulgated the subpart F regulations, it explained that these rules applied to owners. For example, in the preamble to the 1993 Rule, EPA explained that it had made “additions to the scope section to clarify that the rule covers refrigerant reclaimers,

appliance owners,

and manufacturers of appliances and recycling and recovery equipment in addition to persons servicing, repairing, maintaining, and disposing of appliances.” 58 FR 28707 (emphasis added);