# Protection of Stratospheric Ozone: Leak Repair; Partial Stay > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A94-28295 ## Record - **Collection:** Federal Register - **Document type:** Uncategorized Document - **Published:** November 17, 1994 ## Text 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. ----------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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.'' --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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 --------------------------------------------------------------------------- \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). --------------------------------------------------------------------------- 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] BILLING CODE 6560-50-P --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-28295. Public record. Not legal advice.