Protection of Stratospheric Ozone: Leak Repair; Partial Stay

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[FRL-5106-3]

Protection of Stratospheric Ozone: Leak Repair; Partial Stay

AGENCY: Environmental Protection Agency (EPA).

ACTION: Partial stay of final rule.

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SUMMARY: This action promulgates a temporary stay of certain federal

rules requiring the repair and/or retrofit of appliances containing

ozone-depleting substances contained in the regulations implementing

the National Recycling Program. EPA has already issued an action

staying the effectiveness of 40 CFR 82.156(i), as they apply to

industrial process refrigeration equipment only, including the

applicable compliance dates, for a period of three months, pursuant to

Clean Air Act section 307(d)(7)(B), 42 U.S.C. 7607(d)(7)(B), which

provides the Administrator authority to stay the effectiveness of a

rule during reconsideration (August 17, 1994, 59 FR 42169).

This action promulgates a partial stay of the effectiveness of 40

CFR 82.156(i), and applicable compliance dates, beyond the three months

pursuant to Clean Air Act sections 301(a)(1), 42 U.S.C. 7601(a)(1), but

only to the extent necessary to complete reconsideration (including any

appropriate regulatory action) of the rules in question.

DATES: Effective December 16, 1994.

ADDRESSES: Comments and materials supporting this rulemaking are

contained in Public Docket No. A-92-01, Waterside Mall (Ground Floor)

Environmental Protection Agency, 401 M Street, SW., Washington, DC

20460 in room M-1500. Dockets may be inspected from 8 a.m. until 5:30

p.m., Monday through Friday. A reasonable fee may be charged for

copying docket materials.

FOR FURTHER INFORMATION CONTACT: Cynthia Newberg, Program

Implementation Branch, Stratospheric Protection Division, Office of

Atmospheric Programs, Office of Air and Radiation (6205-J), 401 M

Street, SW., Washington, DC 20460, (202)233-9729. The Stratospheric

Ozone Information Hotline at 1-800-296-1996 can also be contacted for

further information.

SUPPLEMENTARY INFORMATION: The contents of this preamble are listed in

the following outline:

I. Background

II. Rules To Be Stayed and Reconsidered

III. Issuance of a Three-Month Stay

IV. Proposed Additional Temporary Stay

V. Comments Received

VI. Response to Comments

VII. Effective Date

I. Background

On July 13, 1993, the Chemical Manufacturers Association (CMA) sent

to the United States Environmental Protection Agency (EPA) a petition

for reconsideration of the Refrigerant Recycling Rule, promulgated May

14, 1993, (58 FR 28660), particularly the leak repair provisions under

40 CFR 82.156(i) as they concern industrial process refrigeration

equipment.1 On that same date, CMA filed a petition in the United

States Court of Appeals for the District of Columbia Circuit seeking

review of this Refrigerant Recycling Rule (Chemical Manufacturers

Association v. Browner, et al., D.C. Cir. Docket 93-1444.) As part of a

settlement agreement signed by EPA and the CMA on May 20, 1994, EPA

agreed to propose changes to the appropriate sections of the rules. A

notice of the settlement agreement was published on June 14, 1994 (59

FR 30584), pursuant to the Clean Air Act section 113(g). Although

several comments regarding the settlement agreement were submitted

during the notice and comment period, none of them opposed the

settlement or suggested that EPA not revise the regulation.

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\1\Industrial process refrigeration is defined in Sec. 82.152(g)

of the final regulations (58 FR 28713). The definition states that

``industrial process refrigeration means, for the purposes of

Sec. 82.156(i), complex customized appliances used in the chemical,

pharmaceutical, petrochemical and manufacturing industries. This

sector also includes industrial ice machines and ice rinks.''

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The settlement agreement set a tight deadline for the completion of

rulemaking, requiring EPA to propose changes by December 1, 1994,2

and to take final action by June 1, 1995. EPA has issued a temporary

stay of Sec. 82.156(i) as it relates to industrial process equipment,

and initiated reconsideration of this provision.

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\2\The settlement agreement originally specified that a proposal

be signed by September 1, 1994. Through a subsequent modification to

the settlement agreement this date was revised.

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II. Rules To Be Stayed and Reconsidered

Final regulations published on May 14, 1993 (58 FR 28660),

establish a recycling program for ozone-depleting refrigerants

recovered during the servicing and disposal of air-conditioning and

refrigeration equipment. Together with the prohibition on venting

during the service, repair, and disposal of class I and class II

substances (see the listing notice January 22, 1991; 56 FR 2420) that

took effect on July 1, 1992, these regulations should substantially

reduce the emissions of ozone-depleting refrigerants. The petition

filed by the CMA seeks for reconsideration of leak repair provisions

under Sec. 82.156(i) as they relate to industrial process refrigeration

equipment. In particular, the petitioners raised concerns regarding the

ability to repair or retrofit some industrial process refrigeration

equipment within the timeframes established by the final rule. CMA's

concerns involve the need to shut down equipment and/or obtain custom

built parts within the appropriate timeframes. CMA also raised the

possibility of delays caused by other regulatory requirements related

to changes at plants.

EPA has evaluated information contained in CMA's petition and is

now reconsidering the leak repair provisions. Moreover, EPA believes

that this information warrants review and response pursuant to section

307(d)(7)(B) of the Clean Air Act. In order to review and evaluate the

ability of the owners and operators of industrial process refrigeration

equipment to comply with the leak repair provisions when extenuating

circumstances exist, EPA will reconsider the regulatory requirements

applicable to repairing leaks in accordance with section 307(d) of the

Clean Air Act.

III. Issuance of a Three-Month Stay

On August 17, 1994, EPA issued a three-month administrative stay

effective September 16, 1994, of provisions of Sec. 82.156(i) as they

apply to industrial process refrigeration equipment, including all

applicable compliance dates. These provisions had been promulgated as

final federal rules requiring the reduction of emissions of ozone-

depleting substances during the servicing and disposal of air-

conditioning and refrigeration equipment (August 17, 1994, 59 FR

42169). EPA is reconsidering these rules, as discussed above and,

following the notice and comment procedures of section 307(d) of the

Clean Air Act, will take appropriate action.3

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\3\If, after reconsideration of these provisions, EPA determines

that it is appropriate to impose leak repair requirements that are

stricter than the existing rules, EPA will propose an adequate

compliance period from the date of final action on reconsideration.

EPA will seek to ensure that the affected parties are not unduly

prejudiced by the Agency's reconsideration. Any EPA proposal

regarding changes to the leak repair requirements and the

appropriate compliance period would be subject to the notice and

comment procedures of Clean Air Act section 307(d).

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IV. Proposed Additional Temporary Stay

EPA will not be able to complete the reconsideration (including any

appropriate regulatory action) of the rules stayed by the Administrator

within the three-month period expressly provided in section

307(d)(7)(B). That stay will expire on December 16, 1994. Therefore,

EPA believes it is appropriate to extend temporarily the stay of the

effectiveness of the leak repair requirements for industrial process

refrigeration and applicable compliance dates from December 16, 1994,

until EPA completes final rulemaking action upon reconsideration.

Because the settlement agreement between EPA and CMA set a tight

deadline for the completion of the rulemaking, EPA is reconsidering the

rules in question as expeditiously as practicable. However, EPA will

not be able to complete the reconsideration process during the three-

month administrative stay of these regulations. EPA will not be able to

issue proposed action, seek public comment, and take final action

before the temporary stay expires on December 16, 1994.

As proposed, this action will only remain effective to the extent

necessary to complete reconsideration of the rules in question. The

settlement agreement between EPA and CMA expressly requires that final

action regarding reconsideration be signed by June 1, 1994. Therefore,

the stay would expire when the final action regarding the

reconsideration of the leak repair requirements become effective.

V. Comments Received

EPA received five comments concerning the proposal to extend the

administrative stay beyond the three months expressly provided in

section 307(d)(7)(B). All the commenters agreed with the need for such

an extension. Two comments discussed some of the specific reasons why

it is not practical for the owners and operators of industrial process

refrigeration equipment to comply with the requirements originally

promulgated under Sec. 82.156(i). The reasons included, but were not

limited to:

--the need for a process shutdown in order to complete certain repairs;

--delays stemming from compliance with other applicable federal, state,

or local regulations; and

--the inability to receive the necessary parts and/or appropriate

replacement refrigerant within the specified times.

In addition, one commenter addressed the need for a stay to ensure

that no enforcement action was initiated by EPA or undertaken in

response to citizen suits, during the reconsideration of the leak

repair requirements. The commenter was particularly concerned with the

potential for unfair imposition of penalties during the pendency of the

reconsideration. The commenter stated that while compliance personnel

may have been advised of the settlement agreement, they are not legally

required to refrain from imposing penalties. Penalties stemming from

actions undertaken during reconsideration could be substantial.

VI. Response to Comments

EPA agrees with the five commenters concerning the need for a stay.

EPA believes that it is essential to continue staying the effectiveness

of Sec. 82.156(i) and the applicable compliance dates, as these

provisions relate to industrial process refrigeration equipment only.

Therefore, through this action, EPA is extending the stay of

Sec. 82.156(i) and the applicable compliance dates, for industrial

process refrigerant only, until EPA completes reconsideration of these

regulations in accordance with the settlement agreement reached between

EPA and CMA. This stay will expire when the final action regarding

Sec. 82.156(i) and compliance dates, with respect to industrial process

refrigeration equipment are completed and effective.

Based on internal Agency review, the regulatory language of this

stay has been slightly modified for purposes of clarification.

VII. Effective Date

This action will become effective on December 16, 1994, the date on

which the administrative stay expires.

List of Subjects in 40 CFR Part 82

Administrative practice and procedure, Air pollution control,

Chemicals, Chlorofluorocarbons, Exports, Hydrochlorofluorocarbons,

Imports, Interstate commerce, Nonessential products, Reporting and

recordkeeping requirements, Stratospheric ozone layer.

Dated: November 4, 1994.

Carol M. Browner,

Administrator.

Part 82, chapter I, title 40, of the Code of Federal Regulations,

is amended to read as follows:

PART 82--PROTECTION OF STRATOSPHERIC OZONE

1. The authority citation for part 82 continues to read as follows:

Authority: 42 U.S.C. 7414, 7601, 7671-7671q.

2. Section 82.156 is amended by revising paragraph (i)(5) to read

as follows:

Sec. 82.156 Required practices.

* * * * *

(i) * * *

(5) Rules stayed for reconsideration. Notwithstanding any other

provisions of this subpart, the effectiveness of the 40 CFR

82.156(i)(1), (i)(3), and (i)(4) as these provisions apply to

industrial process refrigeration equipment only is stayed from December

16, 1994, until the EPA takes final action on its reconsideration of

these provisions. EPA will publish any such final action in the Federal

Register.

[FR Doc. 94-28295 Filed 11-16-94; 8:45 am]

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