Protection of Stratospheric Ozone: Supplemental Rule to Amend Leak Repair Provisions Under Section 608 of the Clean Air Act

SUMMARY: Through this action EPA is amending the Refrigerant Recycling

Regulations promulgated under section 608 of the Clean Air Act

Amendments of 1990. This action is being undertaken to address specific

concerns regarding the leak repair requirements for industrial process

refrigeration systems, pursuant to a settlement agreement with the

Chemical Manufacturers Association (CMA). This action will affect the

owners and operators of industrial process refrigeration with regard to

leak repair provisions. Certain aspects of this action will also affect

federal owners and operators of commercial and comfort-cooling

refrigeration with charges of 50 pounds of refrigerant or greater. This

action provides greater flexibility to owners and operators of

industrial process sources and to some federally-owned commercial and

comfort-cooling refrigerant sources with regard to leak repair

provisions. EPA is providing this flexibility without compromising the

goals of protecting public health and the environment.

EFFECTIVE DATE: September 7, 1995.

ADDRESSES: Comments on this action are contained in the Air Docket

Office, Public Docket No. A-92-01 VIIID, Waterside Mall (Ground Floor)

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

20460 in room M-1500. Additional comments and materials supporting this

rulemaking are contained in Public Docket No. A-92-01. 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: Cindy Newberg, Regulatory Development

Section, 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. Refrigerant Recycling Regulations

II. This Rule

III. Notice of Proposed Rulemaking

IV. Summary of Major Comments Received

V. Response to Comments

A. Legal Authority

B. Contracted Employees

C. Nuclear Power

D. Definition of Industrial Process Refrigeration Equipment and

the Need for Separate Leak Repair Requirements

E. Repairing Appliances

1. Repair Attempts

2. Timeframes for Repairing Leaks

3. Determining the Full Charge of Refrigerant

4. Best Efforts

5. Static and Dynamic Tests

6. Fixing Other Leaks

F. Industrial Process Shutdown

G. Retrofitting or Replacing Equipment

H. Recordkeeping and Reporting Requirements

I. Purged Refrigerants

J. Federally-Owned Chillers

K. Mothballing

L. Grandfathering

M. Terminology

N. Regulatory Impact Analysis

O. Allowing Appliances To Be Pressurized To Slightly Above O

PSIG

VI. Judicial Review

VII. Administrative Requirements

A. Executive Order 12866

B. Unfunded Mandates Act

C. Paperwork Reduction Act

D. Regulatory Flexibility Act

I. Refrigerant Recycling Regulations

Final regulations promulgated by the U.S. Environmental Protection

Agency (EPA) under section 608 of the Clean Air Act Amendments of 1990

(the Act), 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 maintenance,

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 are intended to substantially reduce

the emissions of ozone-depleting refrigerants. These regulations were

subsequently revised in the final regulations published August 19, 1994

(59 FR 42950), November 9, 1994 (59 FR 55912), and March 17, 1995 (60

FR 14607).

The current regulations require that persons servicing air-

conditioning and refrigeration equipment observe certain service

practices to reduce emissions, establish equipment and reclamation

certification requirements, and comply with a technician certification

requirement. The regulations also require that ozone-depleting

compounds contained in appliances be removed prior to disposal of the

appliances, and that all air-conditioning and refrigeration equipment,

except for small appliances, be provided with a servicing aperture that

will facilitate recovery of refrigerant.

The May 14, 1993 regulations establish leak repair requirements to

further minimize emissions of class I and class II substances. The rule

states that appliances that normally hold a refrigerant charge of fifty

pounds or more are subject to the leak repair requirements. An annual

leak rate of 35 percent was established for industrial process sources

and commercial chillers, while an annual leak rate of 15 percent was

established for comfort-cooling. Where the leak rate is exceeded, the

appliance must be repaired within 30 days. An alternative is to develop

a retrofit or replacement plan within 30 days, outlining action to

retrofit or replace the appliance within one year from the exceedance.

The NPRM proposed revisions to the leak repair provisions in

response to a settlement agreement reached by the Agency and the

Chemical Manufacturers Association (CMA) specifically for industrial

process refrigerant equipment. In that settlement, EPA agreed to

propose changes to the leak repair requirements that would provide

additional time to repair and/or retrofit industrial process

refrigeration equipment based on the uniqueness of the industrial

process sector and on new information provided by CMA. EPA also agreed

to propose revising the evacuation requirements for oil changes to

permit for slight positive pressure, not to exceed 5 PSIG. Finally, EPA

agreed to clarify that purged emissions that have been captured and

destroyed should be excluded from the leak rate calculations.

The information received from CMA after the completion of the

initial rulemaking indicated that under certain circumstances the

timelines for repairing leaky industrial process refrigeration

equipment or to retrofit such equipment are not achievable. The

proposed rulemaking was developed to respond to those circumstances by

proposing the shortest timeframes achievable for this sector and to

relax the requirements for oil changes as well as to permit for the

exclusion of destroyed purged refrigerants.

[[Page 40421]]

The NPRM also proposed several other changes to the regulations,

including an exemption for federally-owned chillers under certain

circumstances. The NPRM is discussed in further detail in the following

section.

The recycling rule, 40 CFR, part 82, subpart F, was only re-opened

for purposes of reconsidering the specific provisions outlined in the

NPRM and discussed in this final action. EPA did not invite comments on

any other provisions of the recycling rule. However, in separate

actions EPA has recently addressed a stay on the sales restriction for

split systems (60 FR 24676), and an extension of the reclamation

requirements (60 FR 14607). In addition, EPA plans in the future to

consider additional changes to the requirements under 40 CFR, part 82,

subpart F, including:

Reconsideration of the sales restriction for split systems

and pre-charged parts;

The adoption of an industry off-site recycling standard;

and

Requirements for recovering alternative substances to

class I and class II refrigerants unless the Administrator determines

that venting, releasing or disposing of the substitute refrigerants do

not pose a threat to the environment.

These issues will be addressed in separate rulemakings that will

follow appropriate notice and comment procedures.

II. This Rule

This final rule affects the owners and operators of industrial

process refrigeration equipment that normally contain a charge of 50

pounds or more of a class I or class II refrigerant. Today's action

will provide the owners and operators with greater flexibility in

repairing leaks and retrofitting leaky appliances. EPA will permit the

owner or operator to have more than 30 days to complete repairs and

more than one year to retrofit appliances where the conditions

described in this final rule apply.

Through this final action EPA is also clarifying that the owners

and operators of all appliances subject to the leak repair provisions

must only reduce leak rates to below the allowable leaks.

In addition, this action will permit additional time beyond the 30-

day leak repair period for federally-owned chillers where the chillers

are located in areas subject to radiological contamination. EPA will

also permit additional time beyond the one-year retrofit period if

appropriations and procurement requirements limit the feasibility of

completing the retrofit activities within one year.

Finally, this rule will permit the owners or operators to evacuate

appliances to slightly above atmospheric pressure, specifically to a

pressure not exceeding 5 psig, to perform oil changes. Alternatively,

EPA will permit the owner or operator to recover the oil to a system

receiver where the receiver will be evacuated to atmospheric pressure.

This statement in conjunction with the NPRM, serves as the

statement of basis and purpose under Sec. 307 of the Act.

III. Notice of Proposed Rulemaking

On January 19, 1995, EPA published a notice of proposed rulemaking

(NPRM) (60 FR 3992) concerning proposed revisions to the leak repair

requirements promulgated under section 608. Below is a summary of the

NPRM.

EPA proposed to permit the owners and operators of industrial

process refrigeration equipment more than 30 days to repair leaks when

the necessary parts are unavailable, or if requirements of other

federal, state or local regulations make a repair within 30 days

impossible. Only the time necessary to receive delivery of any

necessary parts or comply with any applicable regulations would be

permitted. The NPRM specified that the owner or operator of the

industrial process refrigeration equipment would have to exert best

efforts to repair leaks within the 30-day time period. If the equipment

could not be repaired within the 30-day requirement, the owner or

operator would have to document repair efforts, notify EPA of the

inability to comply, provide appropriate information concerning the

reason for the inability to complete the repairs and develop to EPA a

one-year retrofit, replacement, or retirement plan for the leaky

appliance. The NPRM stated that the owners or operators of the

industrial process refrigeration equipment would be required to

maintain records concerning their actions and submit specific

information to EPA that details the need for additional time to

complete the repair work. These records are discussed in further detail

in the NPRM (60 FR 3994).

In order to complete many types of repairs, industrial process

refrigeration equipment may need to be shut down. EPA proposed a 120-

day repair period, rather than a 30-day repair period, where an

industrial process shutdown is necessary to repair a leak or leaks from

industrial process refrigeration equipment.

EPA proposed three methods for owners and operators of industrial

process refrigeration equipment to determine the full charge of

refrigerant in the appliance and therefore, be able to calculate the

leak rate. Two additional methods for these calculations were also

discussed but were not proposed. The methods EPA proposed were: (1) To

rely on the manufacturers' determinations, (2) to require the owner or

operator to do calculations based on component sizes, flow rates,

pressures, and other considerations, and/or (3) to rely on actual

measurements of the amount of refrigerant added or evacuated from

industrial process refrigeration equipment. These and other methods are

discussed in greater detail in the NPRM (60 FR 3995).

EPA proposed that the repair efforts required for industrial

process refrigeration equipment be those that sound engineering

judgment indicates will be sufficient to bring the leak rate below a 35

percent annual rate, that a static test be conducted at the conclusion

of the repairs to determine whether the repairs undertaken were

successfully completed, and that a dynamic test be conducted within 30

days of bringing the system back on-line (if taken off-line) or within

30 days of completing the actual repairs, but no sooner than when the

system has achieved steady-state operating characteristics. If the

dynamic test indicates that the repairs have not been successfully

completed, EPA proposed that the owner would be subject to a

requirement to retrofit or replace the appliance within one year of the

failure to verify that the repairs had been successfully completed or

such longer time period as may be granted. Furthermore, EPA proposed

that the owner or operator notify EPA of the failure within 30 days of

the failed dynamic verification test. Proposed definitions of static

and dynamic tests and examples of these tests are discussed in the NPRM

(60 FR 3996).

Industrial process refrigeration systems have many potential

sources of leaks. The NPRM stated that if a sufficient number of other

leaks can be repaired creating a situation where the originally

identified leak or leaks remain, but the overall leak rate has been

successfully reduced to below 35 percent per year, the owner or

operator has still in effect met its obligation under the rule.

Therefore, EPA proposed that the owner or operator of an industrial

process refrigeration unit be relieved of the obligation to retrofit or

replace the appliance if, within 180 days of the failed dynamic

verification

[[Page 40422]]

test, the owner or operator establishes that the appliance's annual

leak rate does not exceed 35 percent. If the equipment owner or

operator establishes that the appliance's annual leak rate does not

exceed 35 percent, the owner or operator would be required to notify

EPA within 30 days of that determination and the owner or operator

would no longer be subject to the obligation to retrofit or replace the

appliance that arose as a consequence of the initial failure to repair

the leak or leaks successfully. The determination of whether the

appliance's annual leak rate exceeds 35 percent would be determined in

accordance with parameters identified by the owner or operator in its

notice to EPA regarding the failure of the initial dynamic verification

test.

EPA proposed to clarify that for industrial process and commercial

sources, leaks need to be repaired such that the leak rate is brought

back to a level below the 35 percent annual rate. A parallel

clarification for comfort-cooling and commercial sources also was

proposed. Therefore, rather than requiring that ``all'' leaks be

repaired, EPA proposed revising the requirements to reduce leaks to a

rate below the acceptable thresholds. EPA would permit leaky appliances

to operate as long as the leak rate does not exceed that amount.

In the NPRM, EPA stated that it may be reasonable to permit

additional time beyond the one-year established by the current

regulations for the retrofitting of certain industrial process

refrigeration equipment. EPA believes there are specific concerns

relating to the need for special design, engineering, ordering and

installation difficulties for some industrial process refrigeration

equipment. EPA proposed to allow more than one year to complete the

retrofit of industrial process refrigeration equipment in certain

circumstances. The NPRM describes scenarios that may justify more than

one year to retrofit an appliance; however, EPA does not believe

additional time is always necessary. Therefore, EPA intended to permit

additional time only when the owners or operators of the industrial

process refrigeration equipment can provide information detailing the

need for additional time in accordance with the proposed requirements

described below.

EPA proposed that additional time, to the extent reasonably

necessary, would be allowed due to delays occasioned by the

requirements of other applicable federal, state, or local regulations,

or due to the unavailability of a suitable replacement refrigerant with

a lower ozone depletion potential. The suitability of a replacement

refrigerant is discussed in the NPRM (60 FR 4000). The owner or

operator of the facility would have to notify EPA within six months

after the 30-day period following the discovery of an exceedance of the

35 percent leak rate. Records that would provide evidence that other

regulations or the unavailability of a suitable alternative refrigerant

prevent retrofit or replacement within one year must be submitted to

EPA to allow EPA to determine that these provisions apply and assess

the length of time necessary to complete the work. EPA proposed that it

notify the owner or operator of its determination within 60 days of

submittal. The limited recordkeeping requirements are discussed in the

NPRM (60 FR 4000). EPA proposed that such records be maintained by the

owner or operator and kept on-site.

EPA proposed that an additional one-year period beyond the initial

one-year retrofit period be allowed for industrial process

refrigeration equipment if four criteria are met: (1) The new or

retrofitted refrigeration system is custom-built (meaning if it or any

of its critical components cannot be purchased and/or installed without

being specifically designed), fabricated and/or assembled to satisfy a

specific set of industrial process conditions; (2) the supplier of the

system of one or more of its critical components has quoted a delivery

time of more than 30 weeks from when the order is placed; (3) the owner

or operator notifies EPA within six months of the expiration of the 30-

day period following the discovery of an exceedance of the 35 percent

leak rate to identify the owner or operator, describe the appliance

involved, explain why more than one year is needed, and demonstrate

that the first two criteria are met; and (4) the owner or operator

maintains records adequate to allow a determination that the criteria

are met. The criteria are further discussed in the NPRM (60 FR 4000).

EPA proposed that if more than one additional year is needed, the

owner may request to extend the deadline for completing all retrofit or

replacement action. EPA proposed that such a request be submitted to

EPA before the end of the ninth month of the additional year that was

granted to retrofit, replace, or retire the appliance. The request

would be required to include revisions to that information submitted

for the first additional year as proposed under Sec. 82.166(o). Unless

EPA objects to the request within 30 days of receipt, it would be

deemed approved. EPA stated that this extension would be granted only

in cases where the actual nature of the retrofit or replacement

activities is such that the additional time beyond the one year is

crucial. The submittal of revised information is discussed in the NPRM

(60 FR 4002).

EPA proposed to allow owners or operators to evacuate the appliance

to slightly above atmospheric pressure, specifically to a pressure not

exceeding 5 psig, to perform oil changes. Reasons for this approach are

described in the NPRM (60 FR 4002).

The NPRM stated that EPA would like to clarify that the Agency

interprets the 35 percent leak rate in the regulations as not including

emissions of purged refrigerant that are destroyed, if their

destruction is accounted for and can be verified by records maintained

by the owners or operators of the industrial process refrigeration

equipment. If purged refrigerant is destroyed using one of the five

destruction technologies approved by the Parties to the Montreal

Protocol, EPA can consider that refrigerant to have been destroyed and

therefore, not part of the leak rate for the system. A description of

the methods for destroying refrigerant and the how industrial process

refrigeration systems could measure purged refrigerants is contained in

the NPRM (60 FR 4003).

In the NPRM (60 FR 4003), EPA described temporarily mothballing

equipment. If a facility is temporarily mothballed, EPA believes it is

appropriate to suspend the time-relevant repair and/or retrofit

requirements while the facility is effectively inoperative. In the same

subsection, EPA described how temporarily mothballing is not equivalent

to having an appliance taken off-line or to an industrial process

shutdown. EPA proposed that while temporarily mothballed, the time-

relevant repair and/or retrofit requirements would be suspended.

EPA proposed that owners or operators of a federally-owned

refrigerant appliance be able to submit a request for extensions

parallel to those outlined for industrial process refrigeration

equipment, based on the hindrance of federal procurement requirements.

If additional time is granted, EPA proposed that testing and

documentation should occur, parallel to those for industrial process

refrigeration equipment. The reasons for this proposed extension are

discussed in detail in the NPRM (60 FR 4004).

IV. Summary of Major Comments Received

During the public comment period EPA received fourteen sets of

comments that are addressed in this action. In

[[Page 40423]]

addition, EPA received and considered additional comments submitted to

the Agency after the 30-day public comment period ended. All comments

considered in this final action are contained in Air Docket A-92-01

VIIID.

All the commenters agreed that EPA should revise the leak repair

requirements. Most of the commenters agreed with the general paradigm

EPA proposed for repairing leaks in industrial process refrigeration

equipment. Commenters raised specific concerns regarding various

aspects of the proposed rule.

EPA received comments concerning the inclusion of specific types of

appliances in the definition of industrial process refrigeration

equipment. One commenter was concerned with whether the economic impact

of an industrial process shutdown of a nuclear power reactor used in

the generation of electricity was considered by the Agency.

Many commenters were concerned with the use and definitions of

static and dynamic tests. In particular, several commenters suggested

that the tests should be described as ``first verification test'' and

``follow-up verification test,'' thus avoiding any confusion stemming

from the common associations of static and dynamic with a state of

motion. Some commenters stated that dynamic tests in certain

circumstances should be performed before the affected appliance is

operating at steady-state.

A few commenters were concerned with the methods EPA proposed to

determine the full charge of an appliance. These commenters believe

that the fourth option described in the NPRM (60 FR 3996) should be

considered an acceptable methodology.

Several commenters believe that EPA should broaden the proposed

conditions under which mothballing an appliance would suspend the time-

relevant leak repair requirements.

A few commenters suggested changes to the recordkeeping and

reporting requirements.

EPA received several comments regarding the proposed requirements

for federally-owned chillers. Some commenters supported EPA's proposal,

some opposed it, and one commenter suggested that EPA re-propose the

changes under a separate rulemaking.

EPA received comments on the requirement to exert best efforts to

repair leaks. Commenters were concerned that since the settlement

agreement between EPA and CMA was reached, the interpretation of best

efforts and sound engineering judgment has changed.

All the comments received by EPA are discussed in greater detail

below.

V. Response to Comments

EPA received fourteen sets of comments during the comment period on

the proposed changes to the leak repair requirements published January

19, 1995 (60 FR 3992). Individual comments are specifically addressed

in this section.

A. Legal Authority

EPA requested comment on the legal authority under which EPA was

proposing and today is promulgating revisions to the leak repair

requirements. A few commenters addressed this issue and agreed with

EPA's legal basis for proposing these changes.

B. Contracted Employees

Two commenters requested that EPA clarify that actual work to be

performed on affected appliances may be provided by contracted

personnel. One commenter stated that although the owner or operator

remains responsible for compliance, the work need not be performed by

the owner or operator. EPA agrees with these commenters. The Agency

recognizes that often repair and maintenance services are performed

under contractual arrangements. Moreover, contracted personnel will be

acting as agents of the owner or operator with respect to performance

of service and maintenance of the appliances. Therefore, the owner or

operator remains responsible to ensure that compliance with the

requirements promulgated under section 608 occurs.

C. Nuclear Power

One comment received by EPA discusses the consideration of the leak

repair requirements specifically for generation of electricity by a

nuclear power reactor. The commenter does not believe the NPRM takes

into account the technological and economic factors specific to the

operation of these facilities in the context of the statutory standard

in section 608(a)(3)(A) of the Act. For example, the commenter states

that the shutdown of a nuclear power reactor within 120 days of

discovering that the leak rate exceeds 35 percent is costly. The

commenter stated that planned outages are typically scheduled on an 18-

month cycle.

EPA understands under this rule, that an industrial process

shutdown will often occur without regard to the planned outages for

nuclear power stations, as well as for other industrial process

refrigeration equipment in order to repair leaks. During the settlement

agreement negotiations, discussions were held considering the

possibility of waiting for the next scheduled shutdown. However, since

these scheduled shutdowns often do not occur frequently, it was

determined that undertaking a separate industrial process shutdown

would be necessary to limit the emissions of refrigerant. EPA does not

believe that the owners or operators of nuclear power stations incur

costs that are dissimilar to those incurred by the chemical,

pharmaceutical, petrochemical, and manufacturing industries when an

industrial process shutdown occurs. Other commenters from these fields

expressed concerns about the costs associated with an industrial

process shutdown, but agreed with EPA that such an undertaking would be

necessary to limit releases of ozone-depleting substances.

Prior to this rulemaking it was unclear whether the use of chillers

in the generation of electricity actually met the definition of

industrial process refrigeration equipment. Therefore, it is true that

EPA did not base the NPRM on any specific consideration of the nuclear

power industry. However, EPA does not believe that the commenter has

demonstrated how the generation of electricity from a nuclear power

reactor would face technological or economic factors not experienced by

other owners or operators of industrial process refrigeration

equipment. Furthermore, today's action lessens the burden for all

industrial process refrigeration equipment, regardless of its use. If

significant distinctions exist between refrigeration appliances used in

the generation of electricity and other refrigeration appliances, EPA

may need to reconsider whether the use of appliances in the generation

of electricity is truly consistent with industrial process

refrigeration equipment. If not, these appliances would be subject to

the 15 percent leak rate and all associated requirements.

D. Definition of Industrial Process Refrigeration Equipment and the

Need for Separate Leak Repair Requirements

The NPRM stated that three main refrigeration sectors are affected

by the leak repair provisions promulgated under section 608 of the Act:

commercial refrigeration, comfort-cooling, and industrial process

refrigeration. While many different commercial refrigeration and

comfort-cooling appliances are similar in design and function, EPA

received information from CMA illustrating the uniqueness of industrial

process refrigeration equipment. Industrial process

[[Page 40424]]

refrigeration equipment is custom-designed and assembled in-place at a

process location. Thus, each of these industrial units has unique

operating characteristics. Industrial process refrigeration has been

defined in Sec. 82.152 as:

* * * complex customized appliances used in the chemical,

pharmaceutical, petrochemical and manufacturing industries. This

sector also includes industrial ice machines and ice rinks.

EPA requested comment on the appropriateness of establishing

separate repair provisions for industrial process refrigeration. EPA

received several comments concerning the need for separate provisions.

These comments agreed with the NPRM. Specifically, commenters referred

to the uniqueness of industrial process refrigeration equipment used in

pharmaceutical, petrochemical, and manufacturing industries. Commenters

stated that there are several apparent differences between industrial

process refrigeration equipment and other types of equipment affected

by the leak repair provisions. Industrial process refrigeration

equipment is larger and more complex than hermetically-sealed consumer

units. Most comfort-cooling appliances have hermetically-sealed or

semi-hermetically-sealed refrigerant loops. Complexity of the

industrial process refrigeration equipment makes leak detection and

leak rate calculations more difficult than for other sectors affected

by the leak repair provisions. Commenters agreed with EPA's assessment

that the replacement parts for this sector often must be specifically

fabricated for the leaking equipment. Commenters believe that shutting

down industrial process refrigeration equipment often takes several

days and that the owners and operators of this equipment must avoid any

unwanted chemical reactions that could lead to fires, explosions, or

other immediate hazards. Based on the discussion in the NPRM and the

comments received, EPA is establishing separate leak repair

requirements for industrial process refrigeration equipment.

One commenter suggested EPA clarify the definition of industrial

process refrigeration equipment with respect to the appliance's

relationship to the manufacturing process. The commenter stated that

the terms: ``complex;'' ``used in the manufacturing industry;''

``custom designed;'' and ``assembled in place'' are subjective and

could be applied to many of the appliances used for cooling large

buildings or processes. Industrial process refrigeration equipment in

the manufacturing sector is used to cool processes directly related to

a broad range of manufacturing activities. The commenter suggests that

the differentiating factor between industrial process and commercial

refrigeration is that industrial process refrigeration equipment tends

to be directly linked to a manufacturing activity. EPA agrees with this

commenter's concerns. EPA distinguishes between commercial

refrigeration and industrial process refrigeration equipment for the

purposes of Sec. 608 in part by considering how the appliance is used.

EPA did not intend to include in the definition of industrial process

refrigeration equipment appliances not involved in the industrial

process. Therefore, through this action EPA will amend the definition

of industrial process refrigeration to clarify that use is a factor in

determining if an appliance is industrial process refrigeration

equipment.

EPA received comments concerning whether the generation of

electricity, particularly where a nuclear reactor is used, is included

in the definition of industrial process refrigeration equipment. One

commenter stated that EPA does not specifically identify electric

generating stations as industrial processes, as the rule does for the

chemical and pharmaceutical industries. The commenter states that

large, custom refrigeration appliances to cool the production process

are essential to the manufacturing of electricity and are prevalent at

nuclear generating stations.

Fundamental to the classification of these appliances is whether or

not the system is used directly in the production of electricity. The

commenter states that shutting down the refrigeration appliances could

result in the shutdown of the generating station, where the two are

integrally linked. Another commenter stated that chillers used in

safety-related equipment are critical to the safe shutdown of nuclear

power stations in the event of an accident. EPA believes that current

definition of industrial process refrigeration equipment needs to be

clarified to specifically state that the generation of electricity is

included. EPA believes that under the current definition it is not

apparent that the generation of electricity is considered

manufacturing. Therefore, through this action, EPA will add the

generation of electricity to the definition of industrial process

refrigeration. EPA would like to clarify that the definition will only

include appliances directly linked to the generation of electricity.

Appliances used to cool control rooms or offices are not considered

industrial process refrigeration equipment.

The amended definition will be:

* * * complex customized appliances used in the chemical,

pharmaceutical, petrochemical and manufacturing industries. These

appliances are directly linked to the process. This sector also

includes industrial ice machines, appliances used directly in the

generation of electricity, and ice rinks * * *

EPA received one comment concerned with the potential for

ambiguities in the definition of industrial process refrigeration

equipment and commercial refrigeration. The commenter notes that by

default, all appliances with more than 50 pounds of refrigerant that do

not come under the definition of commercial or industrial process

refrigeration equipment must have leaks repaired when the leak rate

exceeds 15 percent leak rate. EPA agrees that all appliances with 50

pounds of refrigerant or more, that do not meet these definitions are

subject to the 15 percent leak rate.

Three comments asserted that other types of appliances should also

be included in the leak repair requirements for industrial process

refrigeration equipment. These commenters proposed expanding the

definition of industrial process refrigeration equipment to incorporate

specialized comfort cooling appliances and specialized commercial

refrigeration. One commenter stated that since industrial comfort-

cooling equipment such as the air conditioners mounted on cranes in a

smelter are ``custom built,'' EPA should allow additional time for

repairs to be made. While EPA understands that these appliances are

customized to be located on cranes, often above molten metal, EPA does

not believe these appliances are consistent with either the original or

amended definition of industrial process refrigeration equipment. EPA

believes that the parts used in these types of comfort-cooling

appliances are not unique and are therefore relatively easy to replace.

Furthermore, the appliances do not function as part of the process.

Customizing the appliances in this scenario refers predominantly to

modifying the system to fit in its intended location. Therefore, EPA

does not consider industrial comfort-cooling appliances to be

industrial process refrigeration equipment.

Another commenter stated that the definition of industrial process

refrigeration should be expanded. The commenter uses specialized

refrigeration equipment in confined spaces and other industrial-setting

applications, refrigeration as cooling equipment in laboratories for

meeting

[[Page 40425]]

specific testing requirements, and cooling areas containing a bank of

computers to ensure a controlled environment. Another commenter stated

that the definition should specify that appliances used for regulating

temperatures in the control panel buildings should also be considered

industrial process. The commenter believes that this is an integral

part of the process and that since these appliances are vital to the

proper functioning of the instruments in the control panel they do not

constitute ``comfort-cooling.'' While EPA understands that these

cooling appliances are designed to meet specific cooling needs and fit

in specific settings, these appliances do not meet the definition of

industrial process refrigeration. EPA does not believe it is

appropriate to expand the definition of industrial process

refrigeration equipment to include specialized comfort-cooling

appliances. If appropriate in the future, EPA could consider creating a

separate category of specialized comfort-cooling appliances and/or

specialized commercial appliances and permitting additional time to

repair leaks. However, at this time EPA does not believe this is

necessary. If EPA receives compelling information, then EPA would

consider proceeding with appropriate notice and comment.

Amending the requirements to create new sub-sectors for appliances

not considered in the NPRM, particularly where such determinations

would likely have wide-ranging consequences where proper notice has not

been given, would be inappropriate as part of today's final action.

Therefore, EPA will not expand the definition of industrial process

refrigeration equipment to include specialized comfort-cooling or

specialized commercial appliances. EPA may reconsider this issue

through proper notice and comment procedures, at a later date.

EPA received several comments regarding the amount of refrigerant

contained in appliances subject to the leak repair requirements.

Commenters asked that EPA clarify that leak repair is required only for

appliances that normally contain more than 50 pounds of refrigerant. On

August 19, 1994 (59 FR 42953), EPA addressed this concern. The notice

states that ``although EPA did not explicitly restrict the scope of its

leak repair requirement for commercial and industrial process

refrigeration to equipment containing more than 50 pounds of

refrigerant, EPA intended this requirement (Sec. 82.156(i)) to cover

only equipment containing at least 50 pounds'' (59 FR 42953).

Accordingly, EPA amended Sec. 82.156(i) to specify the 50-pound cut-off

(59 FR 42957). Inadvertently, EPA neglected to carry over that amended

language in the January 19, 1995 NPRM. Therefore, through this action,

EPA will amend the proposed requirements of Sec. 82.156(i) to specify

the 50-pound cut-off.

One commenter requests that EPA clarify that 50 pounds refers to

the refrigerant in one refrigerant circuit. The commenter states that

where two separate, wholly independent refrigeration circuits that are

not interconnected, each having a normal refrigerant capacity of no

more than 50 pounds, the leak repair provisions should not apply. EPA

agrees with this commenter. Through this action, EPA would like to

clarify that if the refrigerant circuits do not interconnect, and if

each wholly independent circuit has a capacity of no more than 50

pounds of refrigerant, the leak repair provisions promulgated under

Sec. 82.156(i) do not apply. However, if the refrigerant circuits are

connected, and the combined circuits have a normal capacity of more

than 50 pounds of refrigerant, the leak repair provisions do apply.

EPA received several comments regarding appliances used as both

industrial process refrigeration equipment and comfort-cooling. The

commenters were concerned with whether they need to use the 15 percent

leak rate or the 35 percent leak rate under these circumstances. One

example would be a chiller used directly in the generation of

electricity and used to cool the control room. EPA believes that where

50 percent or more of an appliance's capacity is being used as

industrial process refrigeration equipment, that appliance should be

treated as industrial process refrigeration equipment and therefore

subject to the 35 leak rate. Where less than 50 percent of an

appliance's capacity is being used as industrial process refrigeration

equipment, then the appliance will not be considered industrial process

refrigeration equipment and will therefore be subject to the 15 percent

leak rate. EPA believes this demonstrates an equitable approach and is

consistent with determinations made by the Agency's Office of

Compliance.1

\1\ Applicability Determination #51 made under the Sec. 608

rulemakings.

---------------------------------------------------------------------------

EPA received one comment regarding the definition of on-site. The

commenter believes EPA should specify that on-site means within a

contiguous geographic area, under common ownership or control, that

includes the location of the appliance. For the purposes of these

regulations, EPA agrees with this interpretation of the term on-site.

E. Repairing Appliances

1. Repair Attempts

EPA received several comments seeking clarification concerning how

EPA will interpret the first repair attempt. Commenters stated that EPA

should clarify that repairs can be iterative and therefore an owner or

operator should be allowed to make as many repair attempts within the

initial 30-day or 120-day timeframe as possible, as long as the results

of conducting the verification tests indicate that the repairs were

successful. One commenter explained that repairs may be checked several

times before being considered complete. The commenter feared that there

may be confusion that one unsuccessful attempt to tighten a bolt or

replace a gasket might trigger the requirements as when a dynamic test

fails.

EPA agrees with these concerns. EPA believes that during the

initial 30-day or 120-day repair time, all attempts should be made to

repair the leaks. Therefore, through this action EPA will replace the

proposed language ``first attempt'' with ``initial repair efforts,''

thus including all the efforts made during the initial 30 or 120 days.

EPA also received comments concerning the interpretation of

``second attempt'' to repair leaks. The commenters are concerned that

second attempt implies a singular event rather than a series of events

to repair a leak within a finite period of time. One commenter

suggested that ``efforts'' be used instead. The commenter believes a

limited timeframe instead of a limited event should be acceptable. EPA

received comments indicating that the Agency should modify the rule to

include a timeframe for completing the second attempt to repair leaks,

particularly since a timeframe was included in the settlement

agreement.

EPA agrees with the comments. A timeframe of 30 days (or 120 days

in the case of an industrial process shutdown) was specified in the

settlement agreement and inadvertently not included in the NPRM under

Sec. 82.156(i)(3)(iv). As discussed above in reference to a first

repair attempt, EPA understands that repairs may be iterative and that

a singular effort should not be described. Another comment suggested

EPA use the language, ``any subsequent repair attempt.'' EPA does not

believe that this language is appropriate because it is too open-ended

and could potentially cause

[[Page 40426]]

confusion. Therefore, through this action EPA will modify the proposed

Sec. 82.156(i)(3)(iv) to include a reference to 30 days and 120 days

for completing ``second repair efforts.''

2. Timeframes for Repairing Leaks

EPA received many comments supporting the proposed timeframes for

repairing leaks in industrial process equipment. These commenters

recognized that while many types of leaks can be repaired within 30

days, in particular circumstances, such as when an industrial process

shutdown is required, additional time is necessary. EPA received one

comment stating that in all cases 120 days should be provided to repair

all leaks. The commenter further stated that if the leaks could not be

repaired within 120 days, additional time should be provided if the

parts are unavailable, there are complications due to other

regulations, or the potential need for the system to be taken off line

to effect the repair exists. The commenter believes that this will

reduce the amount of delays experienced by waiting for approvals from

the Agency and it would decrease the burden placed upon the industry by

reducing the number of submittals. The commenter further believes that

by reducing wasted time spent in performing bureaucratic functions, and

waiting for approvals, the repairs may be more quickly and efficiently

made.

EPA does not believe it is necessary to always permit 120 days to

repair leaks. In negotiating the settlement agreement with CMA and in

subsequent discussions with industry representatives, numerous examples

of routine repairs that can easily be made within 30 days have been

identified. These types of repairs include leaks caused by a ruptured

tube and a leaking gasket between the flanges. These and other types of

repairs normally completed in less than 30 days are discussed in the

NPRM (60 FR 3994). Limiting repair times to the most reasonable amount

of time ensures that the repairs are completed responsibly and

consistent with the spirit and intent of section 608 and the initial

regulations promulgated in May 1993. EPA sees no reason to provide

additional time to repair leaks that many commenters agree can easily

be repaired within 30 days. Part of EPA's rationale for proposing

changes to the leak repair provisions is based on the need to provide

flexibility where the leaks are such that repairs cannot be made within

30 days. Allowing 120 days for repairs where an industrial process

shutdown is necessary recognizes the need to first complete the actual

shutdown before attempting to fix the leaks. Since under most

circumstances, owners or operators are expected to proceed with their

repair or retrofit operations without receipt of prior approval, EPA

does not believe waiting for approval constitutes a reason for the

owners or operators to delay action. Thus extending the leak repair

timeframe to 120 days to ensure adequate time to receive EPA approval

is not necessary. Therefore, EPA is requiring that where appropriate,

leaks are to be repaired within 30 days.

EPA received one comment regarding the course of action when the

30-day repair requirement cannot be met. The commenter notes that the

NPRM's preamble states that when the 30-day repair requirement cannot

be met, the owner or operator must notify EPA and include ``a one-year

retrofit, replacement or retirement plan for the leaky equipment'' (60

FR 3994). However, the regulatory language does not state that

requirement. Instead, the regulatory language states that the owners or

operators must provide the reason(s) why more than 30 days are needed

and an estimate of when the repair work will be completed. The

commenter believes the regulatory text is correct. EPA agrees that the

regulatory language properly reflects the notification requirement.

Provisions proposed under Sec. 82.156(i) allows for other alternatives

besides automatically retrofitting or replacing the equipment.

3. Determining the Full Charge of Refrigerant

EPA received several comments concerning establishment of the

amount of refrigerant contained in industrial process refrigeration

equipment and therefore determining the leak rate for the affected

appliance. One commenter suggested that EPA should specify a

methodology for determining the percentage of refrigerant lost during a

12-month period. Another commenter stated that large facilities that

have in-house staff for servicing refrigeration equipment may not have

had any regulatory requirement or internal justification for

maintaining records of refrigerant charges prior to June 14, 1993 (the

effective date of the initial regulations promulgated under section

608). The commenter requests that EPA clarify that leak rate

calculations are required to be performed by taking into consideration

the additions of refrigerant that occur after the original promulgation

of section 608. Furthermore, the commenter requests clarification about

prorating refrigerant added over more than a 12-month period. For

example, if 20% is added every 24 months, does that constitute a 10%

per year leak rate? The commenter believes that since there were no

regulatory requirements prior to May 1993, owners or operators should

not be subject to enforcement based on imprecise calculations.

Alternatively, the commenter believes that EPA should permit the first

recharge to occur without regard to the leak rate in order to establish

a full charge baseline.

EPA understands that prior to June 1993, records regarding the

addition of refrigerant may not have been maintained. However, at this

point such information should have been maintained for over two years.

Therefore, EPA believes it is reasonable to assume a baseline can be

established. EPA agrees that refrigerant recharges should be

appropriately prorated to establish a yearly leak rate; however, EPA

does not believe it is necessary or appropriate to permit the first

recharge to occur without making an effort to assess the leak rate.

Several commenters requested that EPA permit the use of the fourth

option discussed in the NPRM (60 FR 3996) for determining the full

charge of refrigerant. This method allows one to choose a number from

within an established range based on the best data currently available.

Once a number is selected, it would be considered the full charge;

however, over time the owner or operator of the appliance may adjust

the number based on new or revised information concerning the

performance of the system. EPA expressed concerns that there is no

clarity regarding circumstances under which a change in the number

could be justified. In the NPRM, EPA stated that an everchanging

estimate of the full charge defeats the purpose of creating a baseline.

Several commenters stated that EPA's concerns can be overcome. One

commenter stated that in its experience it is difficult to accurately

estimate the full charge of particular appliances. The commenter

believes that often only trial and error will derive an accurate

number. The commenter believes it is essential to allow an owner or

operator to be able to draw from experience and use a range in

estimating the full charge. The commenter believes that as long as the

method used is documented, an inspector can determine if the approach

was reasonable. Another commenter stated that EPA should not reject any

legitimate technique for calculating the full charge. Several

commenters stated that every method for determining the full charge has

its strengths and weaknesses. Moreover, expressed or not, all methods

will develop a range. The commenters believed that EPA's

[[Page 40427]]

concerns are that the owners or operators might frequently change the

determination of full charge and that EPA would lack the criteria to

evaluate whether the changes were justified. The commenters suggested a

way to address these concerns:

Any downward revision of the full charge should be

acceptable without a need for EPA to challenge it;

EPA could specify that the midpoint of the established

range constitutes the full charge for determining a leak rate;

EPA could require the owners or operators to maintain

records of the basis for their original determinations of the full

charges and any data behind any changes to those determinations; and

EPA could require the owners or operators to submit a

report to EPA when a number is revised after discovering refrigerant

losses, when a number is revised resulting in a leak rate below 35

percent, and when the owners or operators do not intend to fix the

leaks.

Another commenter stated that if EPA does not revise the proposed

regulations to permit this method for determining the full charge, the

Agency should provide at least six months for the owners or operators

to determine the full charge of affected appliances using acceptable

methods.

EPA has considered these comments very carefully. EPA's concerns

relate to the accuracy of the fourth method for determining the full

charge of a system and the potential to adjust the estimate to reduce

leak rates below the applicable thresholds. However, EPA believes that

the commenters have suggested ways to alleviate EPA's concerns. EPA

understands that while ranges may need to be adjusted several times for

a new appliance, over time the frequency of such adjustments would

likely decrease, unless substantial modifications were made to the

appliance. Moreover, in most cases, ranges would not need to be

adjusted more than once every few years after an appliance has been in

operation long enough for the owner or operator to become comfortable

with the range. Furthermore, EPA understands that a range may actually

represent seasonal variations.

EPA agrees with the commenters that any downward revision of the

full charge should be acceptable without any need for EPA to challenge

the revision. EPA further agrees that the midpoint of the established

range shall represent the full charge for determining a leak rate. This

mitigates the possibility of receiving any unfair advantage by

adjusting the range, since the midpoint would not vary as much.

EPA agrees with the comments that records should be maintained

concerning the determination of the range and any adjustments to it. If

the owners or operators of an appliance choose to establish a range, it

is critical to understand the methodology for the establishment of the

range and the methodology for any adjustments that would result in a

larger number for the midpoint. EPA believes that such records would be

beneficial in any compliance determinations. Moreover, EPA believes

that while ranges many need to be adjusted several times during the

first year, the ranges will soon become stabilized. It will not be

necessary to adjust the ranges unless a major change was made to the

industrial process refrigeration equipment. Therefore, the records

would not need to be modified often. Commenters suggested data elements

to be contained in the records, including the original full charge and

any revisions. EPA agrees with these commenters. Therefore, the records

required for using the fourth option will include: the identification

of the owner or operator of the appliance; the location of the

appliance; the original full charge of the appliance and how it was

determined; any revision of the full charge number and how it was

determined; and the date such revisions occurred. Since the owner or

operator need not use the fourth methodology, EPA does not believe this

recordkeeping provision constitutes an unreasonable burden for the

owners or operators.

While commenters suggested limited reporting requirements to

accompany this recordkeeping provision, EPA does not believe it is

necessary or appropriate to require reports to be submitted detailing

the methodology for establishing or changing the full charge

determination. EPA believes maintaining records is necessary for the

Agency to understand the methodologies used if an issue of compliance

arises. EPA also believes that in all likelihood, such records will

benefit the owner or operator of the appliance by providing a historic

record of how the current leak rate was developed. However, routinely

providing that information to EPA, particularly where no potential

violation is suspected, is not necessary or appropriate. Therefore, EPA

will require that records be maintained if the fourth method for

establishing the full charge is used; however, EPA will not require any

periodic reporting.

Commenters stated that if the Agency adopts any recordkeeping or

reporting options for the fourth methodology, such provisions should

not be extended for use with the other three methodologies. EPA agrees

with these commenters. EPA did not propose and today is not adopting

any recordkeeping options for these three methodologies.

Through this action EPA will allow any one of the three proposed

methods and the fourth method discussed in the NPRM, or a combination

of these methods to be used for determining the full charge of

appliances. If the fourth method is chosen or used in combination with

any of the other acceptable methods, the midpoint of the range will

constitute the full charge for purposes of determining the leak rate.

The owners and operators of the affected industrial process

refrigeration equipment must keep records in accordance with

Sec. 82.166(q), detailing the methodology used for determining and

adjusting the range.

Two commenters stated that the calculations required for

determining the normal charge of industrial process refrigeration

equipment should apply to the commercial and comfort-cooling sectors as

well. One commenter believes that these other appliances have field-

installed interconnecting piping and there may not be any information

available from the manufacturer indicating the normal refrigerant

charge. Furthermore, the commenter requests that EPA publish guidance,

including formulas, tables and sample calculations with enough detail

that most owners affected by the leak repair provisions will be able to

perform the necessary calculations. EPA does not agree with this

commenter. In cases where a comfort-cooling or commercial refrigeration

appliance is ``customized,'' EPA believes it is still relatively easy

to derive the charge of the system. Field-installed piping can be

measured and the refrigerant charge can, therefore, be calculated.

Moreover, the owners or operators of such systems often hire

contractors to service and maintain their appliances. These contractors

should be able either to determine the full charge or to provide

guidance on establishing leak rates. EPA believes that in most

instances, these contractors will be better able to advise the owners

or operators. Therefore, EPA does not believe it is necessary to

specify how the full charge will be established for these sectors, nor

to publish specific guidance.

One commenter believes that EPA should exclude from any calculation

of refrigerant leak rates the loss of refrigerant through a one-time

accidental release, such as breaking pipes, a ruptured disc, or

operator error.

[[Page 40428]]

EPA disagrees with this commenter. While EPA understands that accidents

do occur, EPA believes that if the events are such that the leak rate

surpasses the 15 percent or 35 percent thresholds, the necessary

repairs should be made to ensure that the owners or operators of the

appliances are in compliance. Such repairs would include replacement of

the broken pipe or rupture disk that led to the accidental release.

Such repairs would also include correcting any condition that

repeatedly led to an accidental release (e.g. over pressurization).

Moreover, since many leaks occur because of one-time events, such as

ruptured pipe, it would be impossible to draw clear distinctions of

what would be included in leak repair calculations.

One commenter stated that EPA should clarify that the owners or

operators may hire contractors to determine the full charge. The

commenter further believes that throughout the rule EPA should

recognize the role of contractors who service refrigeration appliances.

As stated earlier in this preamble, EPA recognizes that the owners or

operators may have contractual arrangements with contractors or

technicians who actually perform maintenance and repair work on the

appliances subject to the leak repair provisions. While the work may be

performed under such arrangements, the personnel are in effect acting

as an agent of the owners or operators.

One commenter stated that EPA should clarify how to determine the

full charge for appliances with multiple independent compressors and

refrigerant loops. As EPA has stated elsewhere in this notice, the

charge of an appliance is based on the charge of an individual

refrigerant loop/circuit where that loop/circuit is not interconnected

and that contains a normal charge of 50 pounds of refrigerant or more.

EPA distinguishes between those that are independent and those that are

interconnected, perhaps employing multiple compressors (e.g. parallel

systems).

4. Best Efforts

EPA received several comments concerning the term ``best efforts,''

as used in Sec. 82.156(i)(2). Several commenters agreed with the

Agency's interpretations. These commenters stated that it was

appropriate to exclude formal protocols from the interpretation of best

efforts because of wide variations in the regulated community. One

commenter stated that each leak is unique and best efforts to repair a

small leak will differ from those taken to repair larger leaks. A

formal definition would either be too complex or ineffective at

capturing all the scenarios.

One commenter requested that EPA include a formal definition of

best efforts in the final rule. The commenter stated that the lack of a

formal definition could create uncertainty as to what the rule

requires. The commenter recognized that the description of best efforts

discussed in the NPRM originated with industry. The commenter provided

two possible ways to better characterize a best efforts approach. The

approach includes providing more description in Sec. 82.156(i)(2) and/

or creating a specific definition in Sec. 82.152. The commenter

suggested the following definitions:

best efforts means a repair method is used that is reasonably

expected to be effective on the particular type of leak, based on

past experience;

or

best efforts means that, during an extension of the 30-day

period for repairs, the owner or operator repairs significant leaks

to the extent practical during the 30 days, by using a repair method

that is reasonably expected to be effective based on past

experience, on those leaks that do not require an extension of time.

While EPA understands the benefits of having a formal definition

for any term used in regulations, EPA does not believe these

definitions solve the problem discussed in the NPRM. In the NPRM, EPA

states that its concerns are the lack of formal protocols in the best

efforts approach described by EPA. EPA characterizes a best efforts

approach in the NPRM as implying that a methodology for repair that is

reasonably expected to be effective based on past experience and

potentially may include consultation (60 FR 3994). EPA does not believe

the commenter's suggested language incorporates all of the concepts

described in the NPRM. Adopting an inadequate definition does not

benefit EPA or the regulated community. EPA requested comments on a

definition hoping that perhaps an industry standard could be cited.

Throughout the regulations promulgated under section 608, EPA refers to

industry standards. Without the existence of such standards, EPA

believes that a formal definition is not the best approach.

Several commenters stated that EPA should modify the proposed

regulatory language in Sec. 82.156 (i)(2) and (i)(2)(ii) to distinguish

best efforts from sound engineering/professional judgment. The

commenters are concerned that EPA erroneously included sound

engineering/professional judgment in the definition of best efforts.

The commenters stated that the intention behind best efforts was that

the owners or operators should do what is necessary within reason to

repair leaks within 30 days in situations where longer extensions

beyond 30 days are necessary to conduct repairs due to the

unavailability of spare parts or compliance with other federal, state,

or local regulations. In further discussions with the commenters, it

appears that over time any initial distinction that EPA and CMA made in

the settlement agreement between best efforts and sound engineering/

professional judgment has become convoluted. EPA believes that the

rationale for using the term best efforts for repairing leaks that

required an extension beyond the initial 30 days was to ensure that

where there are multiple leaks or where a leak can be partially

repaired, the owners or operators will complete all reasonable actions

during the initial 30 days. The result will be to reduce the leak rate

as much as possible during the initial 30 days where additional time is

necessary to complete all repair activities. Additional comments

submitted by CMA confirm this interpretation. Therefore, EPA is

amending Sec. 82.156(i)(2) to remove the references to best efforts.

Instead, EPA will state that the owners or operators must conduct all

necessary leak repairs that do not require additional time beyond the

initial 30 or 120 days. EPA believes that this change in language more

adequately conveys the intent of this provision, which is to allow

additional time, while ensuring that all that can be done has been

done.

5. Static and Dynamic Tests

EPA received many comments supporting the use of static and dynamic

tests. While these commenters agreed with the need for these tests,

several suggestions for when the tests should be used and alternative

terminologies were suggested. These comments will be discussed in

greater detail later in this subsection. EPA received one comment

opposing the use of static and dynamic tests. The commenter stated that

static and dynamic tests are not precisely reliable methods on which to

base a requirement to retrofit a piece of equipment. The commenter

stated that it had documented cases where the results of such tests

have been inconclusive. The commenter further believes that the tests

are overly burdensome and unnecessary. The commenter believes that the

tax and cost of refrigerants should provide the necessary incentives.

[[Page 40429]]

EPA agrees that the expense of ozone-depleting refrigerants will

influence the decisions made by many organizations. However,

considering the size of the refrigerant charges for some of the

appliances subject to the leak repair provisions, ensuring that

appliances brought back on-line are no longer leaking above the

threshold, is important. Also, often appliances may use an HCFC, which

is not subject to federal tax. In the settlement agreement, EPA and CMA

agreed to propose this verification approach. Since these tests are

regularly performed to ensure that a leak has been repaired, EPA

believes these requirements are not overly burdensome. Furthermore, EPA

believes that performing such tests provides the owners or operators

with a strong measure of insurance. Moreover, since EPA has proposed

options other than retrofitting or retiring the leaky equipment, such

as reducing other leak sources, EPA does not believe a retrofit or

replacement decision would be based solely on one failed static or

dynamic test. Therefore, EPA will require that the tests be performed.

EPA received several comments regarding the use of the terms

``static'' and ``dynamic.'' Commenters stated that uses of the terms

``first verification test'' or ``initial verification test'' and

``follow-up verification test'' would be more appropriate. Among the

reasons suggested for this change is a concern that the terms static

and dynamic have commonly understood meanings. Static generally means a

system is at rest and dynamic generally means a system is operating.

One commenter stated that during the settlement discussions the terms

were crafted to discuss repairs, using the widely understood meaning.

However, later it was realized that industrial process refrigeration

equipment that was not shut down during repairs was neglected. The

terms were then broadened to mean a first verification and a second

verification test. After discussions with employees, the commenter now

believes that the broadened definitions would likely cause confusion.

Another commenter agreed that while the broadened definition captures

the situations faced by the owners or operators, the language would be

confusing. Several commenters suggested that the terms ``first'' or

``initial verification test'' and ``follow-up verification test'' would

be more accurate.

EPA agrees with these commenters. The definitions of static and

dynamic were broadened to capture real world situations. Since the

settlement agreement bound the Agency to a proposal that included those

terms, EPA did not consider the use of other language to describe the

tests. However, EPA agrees that ``initial verification test'' and

``follow-up verification test'' more accurately describe the tests,

particularly since often the same types of tests qualify as both static

and dynamic, depending on when they are performed. EPA believes

changing the language would further clarify that the state of motion is

not necessarily a criterion. Therefore, through this action, EPA will

replace the proposed terms ``static'' and ``dynamic'' with the terms

``initial verification test'' and ``follow-up verification.''

Commenters suggested that EPA streamline the definition of initial

verification test (static verification test) by removing illogical or

redundant statements. The commenters state that there is no need to say

that the test will be performed before the appliance or portion of the

appliance has reached operation at normal working conditions of

temperature and pressure because it would not be possible for an

appliance or portion of an appliance to do so without a full

refrigerant charge. EPA understands the commenters' concerns. Clearly,

without a full charge of refrigerant, normal working conditions of

temperature and pressure cannot be reached. However, to limit the

potential for misinterpretations, EPA would rather be overly explicit.

One commenter requested that EPA distinguish between the terms

steady-state operating conditions, steady-state operating

characteristics, normal working conditions and normal operating

conditions. The commenter stated that in engineering terms, these terms

are not always equivalent. For example, if the values of all the

variables in a process (e.g. all temperatures, pressures, volumes, flow

rates, etc.) do not change with time, except for possibly minor

fluctuations, the process is said to be operating at steady state.

However, if any of the process variables change with time, transient or

unsteady-state operating is said to exist. Depending upon the

industrial process that the industrial process refrigeration equipment

is supporting, its normal operation in strict engineering terms may be

characterized as steady-state or unsteady-state. The commenter

therefore believes it is more appropriate when referencing the

operation state of the refrigeration equipment, for purposes of

indicating when either verification test should be conducted, for the

Agency to adopt the terminology ``normal operating characteristics and

conditions.'' Furthermore, the commenter believes that normal operating

characteristics and conditions has an understood definition equivalent

to how the NPRM defines and refers to steady-state operations.

While EPA received other comments supporting the use of the term

steady-state, EPA agrees with the concerns regarding the potential for

confusion. The use of the term steady-state in this context originated

with the settlement agreement. While the proposed definition for

steady-state appears acceptable to most of the affected industry, EPA

is concerned that someone familiar with the engineering distinctions

between steady-state and unsteady-state would be confused. Therefore,

EPA believes it is appropriate to replace ``steady-state'' with

``normal operating characteristics and conditions.'' EPA will not be

revising the definition in any substantive manner; therefore, the

definition itself will be consistent with the spirit of the settlement

agreement.

Several commenters raised concerns on when a follow-up verification

test is performed. The commenters are concerned that the NPRM does not

properly consider occasions where a verification test at normal

operating characteristics and conditions is impractical or less

meaningful. Commenters stated that there are repair situations where

the repair sites will not be accessible to perform a meaningful

verification test after the industrial process refrigeration equipment

is returned to normal operating characteristics and conditions. One

example would be a verification test for leaks inside a heat exchanger.

The tests can be performed while the exchanger is open. A test

performed after the exchanger is reassembled would not be as

meaningful. Other examples provided by the commenters include:

compressor internals, locations that must be re-insulated prior to

start-up, and locations in close proximity to dangerous hot equipment

or moving parts where access is not possible after reassembly. EPA did

discuss whether it would be appropriate to permit follow-up

verification tests prior to returning to normal operating

characteristics and conditions; however, EPA did not propose to allow

these alternative tests. Commenters stated that since there are

situations where the tests prior to a return to normal operating

characteristics and conditions will be more meaningful and reliable,

EPA should permit sound engineering/professional judgment to be used to

determine what the appropriate operational state of industrial process

refrigeration equipment should be when the follow-up verification tests

are

[[Page 40430]]

conducted. One commenter stated that EPA should take confidence in the

fact that leak detection and repair of appliances did not originate

with section 608; it has been an integral part of maintenance practice

for many years.

EPA agrees that in certain circumstances, performing a follow-up

verification test prior to normal operating characteristics and

conditions may be more meaningful and reliable. Performing multiple

verification tests may be appropriate under many conditions. One of the

Agency's concerns, however, was that until normal operating

characteristics and conditions are achieved, it may be unclear if the

leak repair work was truly successful. EPA was concerned that at less

than true operational state, a particular fix may not hold. The Agency

understands that leak detection and repair has been part of this

sector's practices before the development of these regulations.

Furthermore, EPA believes that as class I and class II refrigerants

become less readily available, leak detection and repair efforts may

increase. Moreover, EPA believes that in most cases the owners or

operators rely on personnel with appropriate professional judgment in

determining the best way to repair and verify the repair of a leak

source. Therefore, through this action EPA will amend the proposed

requirements for performing follow-up verification tests. EPA will

require that the test be performed at normal operating characteristics

and conditions unless sound professional judgment determines that a

follow-up test should be performed prior to returning to normal

operating characteristics and conditions.

EPA received several comments requesting that the Agency clarify

that initial and follow-up verification tests are to be performed even

when repairs are made within 30 days. One commenter stated that the

NPRM was unclear. The commenter believes that as a practical matter,

and to minimize confusing plant operations, it would be preferable to

treat all repairs equally, and to require documentation that tests

should be done to verify a successful repair. Another commenter stated

that these tests are a measure of compliance. Another commenter stated

that the settlement agreement makes no mention that these requirements

must be met only in cases where the owners or operators are granted

additional time. Furthermore, the settlement agreement does not limit

these tests to situations where an industrial process shutdown has

occurred, or where the repairs were made while an appliance was

mothballed. This commenter believes that, with regards, to the

performance of these tests, the regulatory language should be in full

agreement with the settlement agreement.

EPA agrees that the tests demonstrate whether a leak repair effort

was successful or not, though the tests do not necessarily mean that

the leak rate has been sufficiently reduced. In addition, EPA

understands that often these tests have been routinely performed

regardless of any regulatory requirement. EPA believes that many

organizations have internal policies requiring that verification tests

be performed. EPA agrees that having a consistent requirement that can

easily be paraphrased for technicians is useful. Moreover, EPA does not

believe requiring these tests in all circumstances equates to any

substantial burden to industry. Therefore, EPA will require that

initial and follow-up verification tests be performed when repairing

leaks on industrial process refrigeration equipment where such leakage

has surpassed the 35 percent annual leak rate.

One commenter requested that EPA clarify that the verification

tests demonstrate the success of a leak repair, not that the leak rate

has been reduced below the threshold. EPA agrees with this commenter.

It was not EPA's intention to imply that the verification test shows

what the leak rate is. However, EPA believes that where the

verification test shows that the repairs have been successful, in most

cases this will mean that there has been a reduction in the leak rate.

If more than one leak exists, it is possible that the leak rate could

remain above acceptable levels. In such cases the owners or operators

would be expected to take reasonable actions.

Two commenters stated that where an industrial process shutdown is

not required, the initial and follow-up verification tests will be

identical; therefore, a follow-up verification test is unnecessary. EPA

disagrees with these commenters. While the same test might be

performed, the fact that the tests are performed at different times is

important. If a repair consists of tightening flange bolts, for

example, it may appear that a repair is successful during an initial

verification test. However, it may not be immediately obvious that the

repair was unsuccessful. A bolt may appear to have been tightened

sufficiently; however, if the threading is damaged, it may loosen in a

short period of time. Performing a follow-up verification test will

demonstrate that a problem still exists. EPA believes that even when an

industrial process shutdown is not necessary, initial and follow-up

verification tests will play vital roles. Therefore, EPA is requiring

that both initial and follow-up verification tests be performed when

repairs are made even if an industrial process shutdown is not

required.

EPA received one comment requesting that more than one follow-up

verification test be permitted before an owner or operator must notify

EPA of a failure. The commenter is concerned that situations could

arise in which a follow-up verification test may indicate a failure

even though in reality the leak has been fixed. The commenter suggested

that it would be more reliable in the event that the test was

inconsistent with the expected results, that subsequent tests be

permitted to be performed during the 30-day period. EPA understands

this commenter's concerns. Since repairs are often interrelated, tests

may demonstrate a need to continue repair efforts. EPA proposed to

permit the follow-up verification test to occur within 30 days.

However, since the Agency is revising the terminology used in the NPRM

to first repair efforts and second repair efforts, EPA believes the

issue has been resolved. Tests will be completed after the repair

efforts are complete.

EPA received comments concerning the interpretation and use of

sound engineering/professional judgment. Commenters stated that EPA

should not incorporate sound engineering/professional judgment into the

interpretation of best efforts. Sound engineering/professional judgment

should only be discussed in relation to verification tests. EPA has

already addressed the commenters' concerns about the NPRM's

incorporation of sound engineering/professional judgment with the use

of best efforts.

A few commenters stated that since the decision-making process may

not be performed by an engineer, the use of the term engineering is

inappropriate. In the NPRM, EPA states that sound engineering or

professional judgment means a ``combination of the use of logic and

operational experience, with methods of calculation that are practical,

based on training, experience and education'' (60 FR 3997). EPA agrees

that in many cases the professional making the decision may not be an

engineer. Therefore, EPA will use the term, ``sound professional

judgement.''

One commenter stated that sound professional judgement should be

employed to determine where and which initial and follow-up

verification tests should be performed, whenever

[[Page 40431]]

leaks that are subject to the leak repair requirements for industrial

process refrigeration equipment must be repaired. EPA agrees with this

commenter.

Another commenter stated that fluorescent dye combined with a leak

monitoring UV light source should be considered an acceptable initial

or follow-up verification test. In the NPRM, EPA discussed three types

of verification tests. EPA states that the three discussed represent

examples that EPA believes would be considered acceptable forms of

verification tests. EPA states that other types of tests may exist (60

FR 3997). EPA believes that sound professional judgement should be

employed when determining the type of verification test that is

appropriate for the particular leak. Therefore, it is not necessary for

EPA to state which tests are acceptable. However, EPA would like to

clarify that any verification test must be acceptable under all other

regulatory requirements. For example, if fluorescent dye was combined

with an ozone-depleting substance, where that ozone-depleting substance

is used to propel the dye from a pressurized dispenser into the

appliance, that application would be banned under the nonessential

products ban promulgated under section 610 of the Act.

EPA received one comment regarding the need to perform verification

tests if the owner or operator determines that the industrial process

refrigeration equipment should be retrofitted. For example, if the

leaky equipment is shut down to perform repairs on the heat exchanger,

and as the repair work begins, it is determined that the compressor is

about worn out, the owner or operator may choose to retrofit or replace

the system rather than complete repairs. The commenter believes that

under these circumstances the obligation to perform the verification

tests should be lifted. EPA agrees with this commenter. If the owner or

operator is switching to a retrofit, replace, or retire mode, the

obligation to bring the leak rate below 35 percent is suspended.

Therefore, it is not necessary to perform tests to verify the success

of individual leak repair efforts.

EPA received an additional comment concerning the use of

verification tests when the owners and operators are retrofitting or

replacing the appliance. The commenter was concerned that the proposed

language would obligate owners or operators to perform verification

tests on replaced or retrofitted equipment. EPA agrees that these tests

are not necessary for replaced or retrofitted equipment.

6. Fixing Other Leaks

EPA received one comment regarding what happens if EPA disapproves

the parameters for fixing leaks. In Sec. 82.156(i)(4), EPA stated that

if repairs fail a follow-up verification test, the owner or operator

could choose the option of doing whatever it takes to get the rate

below the threshold within 180 days. It is anticipated that the owner

or operator will follow parameters from earlier notifications. EPA may

disapprove of those parameters; however, the parameters are deemed

approved if EPA does not object within 30 days after receiving notice.

The commenter supports this approach, but is concerned about what

happens if EPA disapproves. In such cases the commenter suggests that

the owner or operator and EPA should reach agreement on what parameters

will be used. EPA agrees with the need to specify what will occur if

the EPA objects to the parameters. If this situation occurs, in all

likelihood, EPA will consult with the owner or operator. However, EPA

and the owner or operator may not necessarily ``reach agreement.''

Through this action, EPA will specify that where EPA objects to the

submitted parameters for bringing the overall leak rate below the

applicable threshold, EPA will select appropriate parameters. In all

likelihood, this selection will be made expeditiously since the

applicable timelines will remain in effect. If such disapproval

significantly limits the ability of the owners or operators to comply

with appropriate timelines, EPA may consider granting an extension. If

no agreement can be reached, it is anticipated that the course of

action may be to retrofit or replace the affected industrial process

refrigeration equipment. Under such circumstances, EPA may need to

consider providing additional time for the owners or operators of the

affected industrial process refrigeration equipment to complete

retrofit or replacement activities.

EPA received several comments supporting the provision relieving

the owner or operator of the obligation to retrofit or retire

industrial process refrigeration equipment where, within 180 days, the

owner or operator has reduced the leak rate to below 35 percent by

completing other repairs and tightening the operation of the appliance.

These commenters believe that by reducing the amount of refrigerant

being released, the owner or operator has met the goals of the leak

repair provisions although the original leak remains.

EPA received one comment suggesting that the Agency should permit

one year instead of 180 days. The commenter believes that providing

additional time will not detract from the requirement to retrofit or

replace the appliance. EPA disagrees with this commenter. EPA believes

that to complete retrofit or replacement activities within one year, it

would be necessary to perform preparatory work on the same appliance.

The lack of clear direction between retrofitting and repairing the

appliance that late in the year may influence the ability of the owner

or operator to complete retrofit activities. Furthermore, EPA believes

that where the leak rate can be reduced to below the applicable

threshold, 180 days should be sufficient time. The leak repair

provisions being promulgated through this action are designed to

provide greater flexibility without compromising the goals of reducing

emissions. To achieve this goal EPA proposed the shortest amount of

additional time necessary to complete repairs. Therefore, EPA does not

believe it is necessary to further extend this provision.

EPA received one comment requesting that the Agency specify that

Sec. 82.156(i)(3)(v) only apply where repairs have failed a follow-up

verification test and the owners or operators have chosen to do

whatever it takes to bring the leak rate below the applicable

threshold. EPA agrees that there are other options available to the

owners or operators. Therefore, through this action, EPA will clarify

that the owner or operator may choose this option, but that other

options, such as retrofitting the appliance, also exist.

EPA received several comments supporting the need to switch to the

retrofit or replacement mode after discovering that successful leak

repairs cannot be made in accordance with the necessary timelines. EPA

received one comment suggesting that when a switch is made from a

repair mode to a retrofit/replacement mode, the owner or operator of

that industrial process refrigeration equipment should be held to the

normal deadlines for retrofitting or retiring the appliance. The

commenter stated that if the owner or operator has spent a month trying

to fix the leaks, the owner or operator would have eleven months left

for retrofitting, replacing, or retiring the equipment. EPA agrees with

this commenter.

EPA received several comments supporting the need for additional

time to complete the retrofit or retirement of industrial process

refrigeration equipment beyond one year. One commenter stated that EPA

should

[[Page 40432]]

clarify however, that additional time should be permitted under

Sec. 82.156(i)(7)(i), not one additional year. In some cases, more or

less than one year is appropriate. One commenter stated that additional

time, up to one additional year, should be permitted under

Sec. 82.156(i)(7)(ii). The commenter also stated that where additional

time beyond the initial additional ``year'' is permitted in

Sec. 82.156(i)(7)(iii), EPA should explicitly state that additional

time beyond the one year is permitted, not an additional year. EPA

agrees with these commenters.

F. Industrial Process Shutdown

EPA received several comments supporting the extension to complete

repairs when an industrial process shutdown is required. One commenter

suggested that the term process shutdown should not be used

interchangeably with the term industrial process shutdown. To provide

clarity and consistency, the commenter believes the Agency should use

and define the term industrial process shutdown exclusively. EPA agrees

with this commenter. Therefore, EPA will define and use the term

industrial process shutdown, instead of process shutdown.

EPA received one comment stating that the need for additional time

beyond the 120 days permitted for an industrial process shutdown may

not be evident within the initial 30-day repair period. The commenter

is concerned that an initial determination that no other federal,

state, or local regulations apply may be made by the owners or

operators. It is also possible that within the initial 30 days the

owners or operators may not realize that the appliance requires parts

that are unavailable. After the industrial process shutdown is

complete, possibly as late as day 115, such a determination may be

made. Under those circumstances, the commenter is concerned that

additional time beyond the 120 days would no longer be available. EPA

understands these concerns. While the Agency believes that in most

cases the owner or operator will know that other regulations will delay

repairs or that the parts are not readily available within 30 days, it

is possible that such a determination will not be known in advance of

completing the industrial process shutdown. Therefore, through this

action, EPA will specify that additional time is available beyond the

30-day or 120-day repair period where other federal, state or local

regulations are applicable or where the necessary parts are

unavailable. Only the additional time needed to receive delivery of the

necessary parts or comply with the pertinent regulations will be

permitted.

G. Retrofitting or Replacing Equipment

EPA received several comments concerning retrofitting or replacing

equipment. Commenters supported the proposal to permit additional time

where specific circumstances exist. Comments about specific aspects of

the proposal are discussed below.

EPA received one comment asking for clarification regarding the

process of notification to EPA if repairs done in good faith are not

successful and retrofitting must be pursued. The concern is that there

may be cases where a repair requires an industrial process shutdown. If

the ``clock'' for notifying EPA begins the date the leak rates are

discovered, there may be cases where six months has passed. Therefore,

the commenter suggested that EPA permit six months from the date the

decision to retrofit is made. EPA disagrees with this commenter. EPA

believes six months provides enough time both when the 30-day timeline

and 120-day timeline apply. The owners or operators would have

acceptable time to make repairs, to determine that retrofitting is

appropriate, and to submit any required information.

EPA received a few comments concerning returning equipment to

operation after the decision to retrofit, replace, or retire the

appliance has been made. One commenter stated that EPA should allow an

owner or operator to start up and operate appliances that the owner or

operator determines, after attempting to repair leaks, cannot pass an

initial verification test, if the owner or operator plans to retrofit

or replace the appliance in accordance with Sec. 82.156(i)(6) or such

longer time as may apply in accordance with Sec. 82.156(i)(7) (i), (ii)

and (iii) or Sec. 82.156(i)(8) (i) and (ii). EPA agrees with these

commenters. If the owners or operators of affected industrial process

refrigeration equipment attempt to repair leaks, but determine the need

to retrofit or replace the equipment in accordance with the provisions

promulgated through this action, the affected industrial process

refrigeration equipment may be brought back on line without an initial

or follow-up verification test.

EPA received related comments concerning the ability of the owners

or operators to switch from the repair to the retrofit mode, and from

the retrofit to the repair mode. One commenter stated that as long as

all applicable deadlines are met, the owners or operators should have

the flexibility to change their initial determination of retrofitting

or repairing the industrial process refrigeration equipment. EPA agrees

that as long as all applicable deadlines are met, the owners or

operators may change their initial decision to retrofit, replace, or

repair leaky industrial process refrigeration equipment.

One commenter stated that the proposed requirement to develop

retrofit plans within 30 days would be difficult for large industrial

process refrigeration equipment. It may take time for the owners or

operators to determine the cause of the leak and whether the best

course of action is to repair or retrofit the appliance. The commenter

requests that EPA permit 90 days for the owner or operator to obtain

all the appropriate information to complete a valid retrofit or

retirement plan. The commenter believes this is consistent with EPA's

recognition that it may take time for the owners or operators to

evaluate the available options. EPA agrees that it may take time to

evaluate the available options; however, EPA does not believe it is

necessary to permit 90 days to develop retrofit or retirement plans.

EPA believes that system mothballing and the ability to switch from a

repair mode to a retrofit mode provide the owner or operator of the

affected appliance with sufficient time to develop such plans. EPA

believes that particularly where the type of leak is unknown, most

owners or operators will attempt to identify and repair the leak first.

Therefore, EPA does not believe it is necessary to require additional

time to develop retrofit or retirement plans.

EPA received one comment regarding when the clock starts for

retrofitting a system. The commenter is concerned that

Sec. 82.156(i)(3)(ii) permits the owner or operator of industrial

process refrigeration equipment to determine the need to retrofit

industrial process refrigeration equipment after a failed follow-up

verification test; however, Sec. 82.156(i)(6) states that all work

under the plan must be completed within one year of the plan's date and

the plan must be developed within 30 days of discovering the leak. The

commenter is concerned with this apparent inconsistency. EPA agrees

with this commenter's concern. While in general, plans are to be

developed within 30 days of discovering the leak, this final action

provides opportunities for the owners or operators to switch to a

retrofit mode. EPA will modify the language in Sec. 82.156(i)(6) to

reflect these scenarios.

EPA received one comment requesting, that if the owner or operator

intended to retrofit or replace an

[[Page 40433]]

appliance, and developed an appropriate plan, and if the owner or

operator later determines that the normal charge of the appliance was

not correctly calculated, the owner or operator should be relieved of

the obligation to retrofit or replace the appliance and therefore, be

able to withdraw the plan. The commenter states that if the appliance

was overcharged, the calculations would be incorrect. EPA understands

these commenters concerns. As discussed above, EPA realizes that owners

or operators may not have kept records of refrigerant charges prior to

the promulgation of regulations under section 608. Therefore, EPA will

permit the owner or operator to withdraw a retrofit or retirement plan

if the calculations of the full charge used to determine the leak rate

were incorrect. However, the owner or operator retracting such a plan

will need to demonstrate clearly that the original determination was

incorrect and why. EPA will be particularly concerned where the fourth

methodology for determining the full charge was used. Where a range is

used to establish the full charge and that range is altered, EPA is

requiring that records be maintained and be made available to EPA upon

request.

H. Recordkeeping and Reporting Requirements

EPA received several favorable comments regarding the proposed

recordkeeping and reporting requirements. One commenter stated that

although the recordkeeping and reporting requirements are more detailed

than those promulgated in May 1993 and that they do constitute an

additional burden, the commenter supports the requirements. The

commenter believes the requirements are necessary to allow EPA the

opportunity to verify that best efforts were expended to find and

repair leaks. Another commenter stated that the provisions mostly

appear necessary and appropriate, in order to assure compliance. This

commenter did offer minor suggestions for the requirements that are

discussed below. EPA received two negative comments on recordkeeping

and reporting comments. One commenter stated that the provisions appear

to be extremely burdensome and time consuming. This commenter feels

that more flexibility should be provided and that incentives to

expeditiously fix leaks and even retrofit will be derived from the cost

of refrigerant. The commenter further stated that the NPRM contains 12

separate reporting items subject to noncompliance enforcement actions

and strict deadlines while providing no environmental benefit. The

second commenter stated while most of the requirements for

recordkeeping and reporting seem justified, Sec. 82.166(n) should not

include recordkeeping or reporting requirements for Sec. 82.156(i) (3)

(iii), (iv), and (iv) because they are too burdensome. EPA disagrees

with these commenters. This rulemaking, in its entirety, is designed to

provide greater flexibility to the industry. The rule will alleviate

stringent repair and retrofitting timelines and allows for more

flexible approaches for lowering the overall leak rate of affected

appliances. EPA has proposed and today is adopting reporting and

recordkeeping requirements in conjunction with the more flexible

approach to ensure compliance with this less stringent scheme. EPA

recognizes that the reports themselves do not constitute an

environmental benefit. However, ensuring compliance with this new leak

repair scheme does provide a benefit. The three specific provisions

cited by the second commenter are pertinent to EPA. One provision

reports the results of a failed follow-up verification test. This

failure is a trigger for the owner or operator to choose a new course

of action. Notification to EPA of the failure is important and would

accompany other required information. The other two provisions

communicate the results of either successful second repair efforts or

tightening other aspects of the appliance to reduce the leak rate below

the threshold. Since these events result in relieving the owner or

operator of having to retrofit or replace the appliance, it is

essential for the owner or operator to notify EPA. These recordkeeping

and reporting requirements are not always required. If the owner or

operator of the industrial process refrigeration equipment can complete

repairs successfully during the initial 30 days, there are no

applicable recordkeeping or reporting requirements.

One commenter suggested that EPA clarify that only the information

listed in Sec. 82.166 (n),(o) and (p) must be maintained. The commenter

suggested several other language changes to ensure an understanding of

the terminology used. Particularly, the commenter suggested and EPA

clarified through the terms, ``fix all other outstanding leaks,'' ``on-

site,'' ``refrigeration facility,'' and ``time changes.'' Another

commenter suggested that EPA clarify under what circumstances specific

data elements should be included. EPA has changed the language in

Sec. 82.166 (n), (o), (p), and in the newly added (q) so that these

sections clearly reflects EPA's intent.

EPA received comments regarding notification to EPA of changes from

the original estimates concerning repair work. One commenter stated

that it was unclear and confusing in both the preamble and the

regulatory language regarding time changes for completion of work from

the original estimates. The commenter believes that EPA should require

notification only if the estimated date of completion of work changes

and results in moving the completion date forward. Other commenters

noted that if EPA reviewed every adjustment in the affected repair

schedules, EPA would receive many unnecessary notices and companies

would face additional compliance burdens. EPA agrees with these

commenters. EPA is only concerned when the estimated date of completing

work results in extending the date of completion, thus increasing the

potential for refrigerant releases. Through this action EPA will change

the proposed regulatory language to state that when the repair schedule

results in extending the date of completion, the reasons for these

changes must be documented and submitted to EPA within 30 days of

discovery of the change in timing.

EPA received comments concerning the potential for the owners or

operators of industrial process refrigeration equipment to be placed in

a situation where they will not be able to comply with their original

schedules because the vendor is unable to meet the delivery schedule

previously supplied to the owner or operator. For example, if a vendor

quotes 20 weeks for delivery and in week 18 changes that estimate to 36

weeks, the owners or operators of the affected appliances will be

forced to reconfigure their installation schedules. EPA understands the

concerns raised by these commenters. If a critical component is

delayed, this might influence whether the owner or operator can meet

their schedule. EPA is aware that often a retrofit will involve several

vendors. In some cases non-critical components may be delayed. It may

be possible to rearrange the schedules to install delayed parts later.

Where these parts must be on hand for work to proceed, delays in

delivery by the vendors could result in missed deadlines by the owners

or operators. Therefore, through this action, EPA will permit an

extension of the original deadlines where delays by vendors limit the

ability of the owners and operators to proceed with their retrofit or

replacement activities. Extensions will be based on the delivery date

for the necessary components.

[[Page 40434]]

EPA received one comment requesting that instead of filing for

additional time beyond the initial one-year period six months after the

expiration of the 30-day period following the exceedance of the 35

percent leak rate, the owner or operator of the industrial process

refrigeration equipment should submit information requesting additional

time 10 months from the expiration of the 30-day period. The commenter

argues that since the materials involved in construction of custom-

built equipment may not normally be used by a refrigeration vendor, it

is common for delivery dates to slip. The commenter believes that an

owner or operator may request additional time even where it is unclear

that such time is actually necessary. However, if the owner or operator

must make the decision to request additional time at 10 months instead

of six months, the owner or operator may be more realistic in his/her

evaluation. While EPA understands these concerns EPA does not believe

it is appropriate to postpone the date. EPA believes that in most cases

it will be clear at six months if additional time will be necessary.

Furthermore, EPA would prefer that those who are unsure if an extension

will be necessary still notify the Agency. If EPA believes the request

is unjustified, EPA can notify the owner or operator of such a

determination. It would be inappropriate for the owners or operators to

make such requests at the 10-month mark where EPA has 60 days to notify

the owner or operator if the request was rejected.

EPA received comments concerning the need to clarify that in

particular circumstances, all the information listed in Sec. 82.166(n)

would not need to be included in a report submitted to EPA. EPA agrees

with this commenter. In the NPRM (60 FR 3995) EPA indicates that under

certain circumstances particular items listed in Sec. 82.166(n) would

not be expected. However, EPA did not include this information in the

regulatory text. Moreover, EPA understands that while combining the

recordkeeping information list appears to simplify the provisions,

misinterpretations could arise. Therefore, EPA has clarified the

recordkeeping provisions in this final action by stating under what

circumstances specific data elements are or are not required.

EPA received one comment regarding the need to modify the language

in Sec. 82.166(n) and (o). In the NPRM these provisions used the

language, ``industrial process refrigeration equipment,'' while the

requirements are also applicable to the federally-owned commercial and

comfort-cooling appliances. EPA agrees with these comments and has made

the necessary changes.

One commenter stated that EPA should revise Sec. 82.156(i)(7)(i).

The NPRM states that information, in accordance with Sec. 82.166(o),

will be submitted to EPA and within 60 days EPA will notify the owner

or operator of its determination. The commenter suggests that instead,

the request for additional time should be deemed acceptable unless the

Agency notifies the commenter within 60 days. EPA disagrees with this

commenter. EPA has permitted for an automatic process of granting up to

one year where the conditions of Sec. 82.156(i)(7)(ii) apply. EPA

distinguished between these two provisions because if the conditions of

Sec. 82.156(i)(7)(i) apply, the Agency can grant as much time as

necessary. This provision is far more open-ended than

Sec. 82.156(i)(7)(ii). Therefore, EPA continues to believe it is

necessary for the Agency to review the request for additional time,

agree that time to the extent reasonably necessary can be granted, and

notify the owner or operator of EPA's decision.

EPA received one comment requesting notification of the proper

address for submitting reports to the Agency. EPA will cross reference

the address listed in Sec. 82.160: Section 608 Recycling Program

Manager, Stratospheric Protection Division, 6205J, 401 M Street, SW.,

Washington, DC 20460.

I. Purged Refrigerants

EPA received several comments regarding the treatment of purged

refrigerants that are destroyed. The commenters agreed that if the

refrigerant is not vented to the atmosphere, but is instead destroyed,

the material did not leak and should not be included in any leak rate

calculations. Several commenters suggested that records be kept on-site

by the owners or operators and be made available to EPA upon request.

One commenter stated that a requirement to notify EPA will prove to be

a resource drain for EPA and will only provide a minimum environmental

benefit. EPA agrees with these commenters and will require that records

indicating the amount of purged and destroyed refrigerant be maintained

and made available to EPA upon request.

One commenter requested that EPA exempt from leak detection

determinations any refrigerant purged and destroyed where the

destruction can be verified, regardless of the technology utilized. The

commenter stated that refrigerant that is leaked into a system, then

converted to elemental compounds or other non-ozone-depleting

substances, by a process reactor or a hydrochloric acid burner should

qualify for this exemption. In discussions with the Agency, commenters

indicated that where an owner or operator decides to take credit for

destroying purged refrigerant, it will be possible to find an

appropriate method for verifying how and how much refrigerant was

destroyed, if the refrigerant is ``completely destroyed'' for purposes

of the phaseout regulations promulgated under sections 604 and 606 of

the Act. EPA agrees with these commenters. While effective destruction

of purged refrigerants can take place in a number of technologies, EPA

does wish to ensure high efficiency. Therefore, so that purged

refrigerant is not counted as part of the leak rate, today's rule will

require purged refrigerant to be destroyed at a destruction efficiency

of 98 percent or greater, consistent with both the phaseout and the

labeling rules. Any destruction technology may be used for the purposes

of destroying purged refrigerants under this rule, as long as the

destruction efficiency is at least 98 percent.

J. Federally-Owned Chillers

EPA received several comments regarding the proposed requirements

for federally-owned chillers. Several commenters supported the proposed

language with only minor changes. A few commenters stated that EPA

should broaden the requirements to allow additional time for non-

federally-owned appliances to repair leaks. The commenters were

concerned with manufacturing backlogs. One commenter stated that the

Federal government should abide by the same rules as industry, noting

that if federal entities are having trouble meeting timelines, large

private companies may also be having the same problems. One commenter

stated that if federal facilities cannot meet the time frames, then

state and local governments may have similar difficulties. The

commenter believes that giving an extension of time only to federal

facilities could be viewed by the states and local governments as a

mandate to them and an excuse for the federal government. One commenter

stated that since the federal procurement process is governed by

federal regulations a specific exemption was not necessary.

Several commenters stated that they are troubled that EPA has

proposed to extend the sound professional judgment

[[Page 40435]]

and verification testing requirements to the owners and operators of

federally-owned commercial refrigeration appliances for three reasons.

First, because the owners or operators were not part of the settlement

agreement between EPA and CMA. Second, because the commenters believe

that EPA incorrectly stated that minor aspects of this rulemaking

affect federally-owned chillers. Finally, because the commenters

believe that this rulemaking constitutes an additional burden and that

further legal action may be taken by the owners or operators of

federally-owned chillers.

EPA understands all the concerns submitted by the commenters. In

the NPRM, EPA states that the Agency received information from the

Department of Energy (DOE) indicating a need for the proposed

extension. EPA discussed with DOE the proposed language, including the

use of verification tests. DOE understood and agreed with the

requirements. Comments received during the public comment period from

DOE suggest clarifications to the proposed regulatory language. DOE is

the only federal entity to submit comments specific to this

requirement.2 EPA believes that in most cases federal entities

should be able to repair appliances within 30 days or retrofit/replace

equipment within one year, and that only under limited circumstances

will this extension apply to federally-owned appliances.

\2\ Additional comments were received by the Tennessee Valley

Authority concerning electricity generated by a nuclear power

reactor, not the exemption for federally-owned chillers.

---------------------------------------------------------------------------

EPA did not receive any comments during the public comment period

from state or local governments regarding this proposal. Also, EPA

received no information regarding the need for extensions for state and

local governments prior to issuing the NPRM. Since EPA often receives

formal and informal comments from state and local entities, EPA can

only conclude that state and local entities do not believe an extension

is necessary. The only comments regarding such an extension for state

and local entities came from private-sector organizations.

One commenter stated that since the federal procurement process is

governed by federal regulations, a de facto exemption exists without

EPA specifying an exemption. EPA disagrees with this commenter. EPA is

today providing additional time based on compliance with other federal,

state, and local regulations for industrial process refrigeration

equipment. This provision is applicable for both private and publicly

owned or operated industrial process refrigeration equipment. However,

it is not applicable to for comfort-cooling or commercial appliances.

An additional exemption for federally-owned chillers not used for

industrial process refrigeration equipment is necessary. Without such a

provision, additional time based on federal, state, and local

regulations would not apply.

EPA understands that often large private-sector organizations may

have complicated procurement requirements. However, private-sector

organizations do not need to go through public notice and comment to

amend procurement practices.

Private-sector organizations can effect changes in order to ensure

compliance. EPA proposed this extension because federal government

officials are bound to follow federal regulations regarding the

purchasing. There are only limited circumstances for expediting a

specific purchase or changing the procedures quickly. EPA recognizes

that the federal government is addressing the needs to provide more

flexibility for contract and procurement officers to expedite the

purchasing of the most cost-effective services and supplies. These

changes, however, have not yet alleviated all the hurdles faced by

those procuring appliances subject to this rulemaking.

In the NPRM, EPA focused on the procurement side of the issue.

Based on additional comments from DOE, EPA understands that, in

reality, the concerns raised by DOE also address how funding is

appropriated, as well as environmental and health concerns associated

with specific appliances owned or operated by DOE.

EPA recognizes that most of the appliances DOE is concerned with

are unique, even amongst the appliances owned or operated by the

federal government. DOE believes that in most cases it will be able to

comply with the 30-day and one-year requirement. However, appliances

used in the production of nuclear weapons and appliances located in

areas subject to radiological contamination must comply with a unique

set of environmental and public safety activities. It may be necessary

to confront specific radiological concerns prior to beginning the

process of locating and repairing leaks.

In the NPRM, EPA stated that the Agency intended for this exception

to only be used in limited cases. EPA continues to believe that an

extension for federally-owned appliances is appropriate; however, EPA

recognizes that the proposed extension was overly broad. For example,

DOE uses hot cells at a number of its facilities to process radioactive

and radioactively-contaminated materials for research laboratories and

medical isotope production. Refrigeration appliances serving hot cells

may be standard chillers that are used for safe operation by the

maintenance of specific temperatures. Hot cells use shielding windows

for viewing manipulator operations. These windows are filled with

mineral oil or zinc bromide fluids, that also act as radiation shields.

If temperatures rise, the window gaskets could leak, the shielding

fluid levels could fall, and the hot cell contaminants might be

released, thus, posing a potentially serious safety hazard to the

operators. If a refrigeration appliance serving a hot cell fails or

leaks excessively, it may take several weeks for the radioactive

materials in the cell to be placed in a stable condition, such that the

materials can be handled safely. The use of temporary cooling

appliances in these circumstances is not a viable option due to nuclear

safety requirements. Thus, similar to industrial process equipment, the

hot cell operations must be shut down to minimize safety hazards, and

such a shutdown may take several weeks to be accomplished. In these

situations, repair work may not be able to be completed within 30 days,

since that work must be performed under safe conditions. EPA believes

that there are a limited number of appliances that are confronted with

this or similar situations. Therefore, the extension of the 30-day

repair requirement would be limited. In most cases, similar to where an

industrial process shutdown is required, 120 days will permit for the

safe shutdown of the hot cells and for repair work to occur.

EPA estimates that even where radiological contamination exists,

extensions will be used only to a limited degree. Moreover, EPA does

not believe it is appropriate to broaden this extension to appliances

owned by state and local governments since EPA is not aware of any

state or local government faced with an analogous scenario. Therefore,

federally-owned commercial and comfort-cooling refrigeration appliances

will be permitted 120 days for repairs to be completed if the appliance

is operating in, or sustaining activities and located in,

radiologically contaminated areas.

EPA continues to believe that federal procurement and

appropriations requirements influence the ability of the federal

government to retrofit/replace/retire an appliance within one year. As

stated above, while the federal government is attempting to streamline

many procurement practices, the types

[[Page 40436]]

of appliances and their associated costs currently limits the ability

of the federal government to comply with a one-year timeframe. In

particular, securing funds to retrofit an appliance subject to

radiological contamination may require a lengthy process. In most

cases, the owners or operators would wait for notification that the

funds have been allocated before requesting proposals. Therefore, EPA

will provide additional time beyond the initial one year, to the extent

necessary, where procurement or appropriations requirements interfere

with the ability of a federal entity to retrofit/retire/replace an

appliance within one year.

K. Mothballing

EPA proposed suspending the time-relevant leak repair requirements

promulgated under Sec. 82.156(i) for appliances that are temporarily or

permanently mothballed. In the NPRM, EPA states that it may be possible

for the owner or operator of the appliance to discontinue use

temporarily, perhaps on a seasonal basis. For example, it may be

reasonable to shut down or mothball a comfort-cooling appliance for a

period of time.

The NPRM further states that this type of system mothballing would

not be the same as an industrial process shutdown undertaken to repair

particular leaks found in industrial process refrigeration equipment or

perform other maintenance activities. Also, this type of shutdown or

mothballing would not be the same as being taken off-line due to a

power outage or event. The NPRM defines system mothballing as an

intentional shutting down of the refrigerant appliance undertaken for

an extended period of time by the owners or operators of that

facility--not for the purposes of servicing or repairing the

appliance--where the refrigerant has been evacuated. The NPRM further

states that if the appliance is temporarily mothballed, EPA believes it

is appropriate to suspend the time-relevant repair and/or retrofit

requirements while the appliance is effectively inoperative. For

example, if a comfort-cooling appliance with over 50 pounds of

refrigerant has a leak rate of more than 15 percent per year, the leak

or leaks must be repaired or the appliance must be retrofitted within

one year. However, if after discovery of the exceedance of the leak

rate, the owner or operator voluntarily mothballs the appliance for a

period of several months or years, EPA believes it would be appropriate

to suspend the need to repair leaks or retrofit the appliance during

the same time period. Therefore, if the appliance operated for five

days after discovery of the exceedance of the leak rate, then shut down

for 2 months, when the appliance returned to operating, the owner or

operator will still have 25 days to repair the leaks. The applicable

verification tests would need to be employed.

EPA received several comments supporting the suspension of time-

relevant repair or retrofit requirements if the owner or operator

temporarily mothballs the affected appliance. However, several

commenters suggested that the time-relevant requirements should also be

suspended while repair or retrofit work is occurring. One commenter

stated that refrigeration systems are designed to provide maximum

cooling; however, if the weather cools or the processes needing

refrigeration are not operating at full production, or if there are

several refrigeration systems supporting a facility, it may be possible

to mothball a leaky appliance. This commenter and several others

recommend that EPA suspend the ``clock'' whether the appliance is

mothballed for the purposes of repair or not. The commenters stated

that the basis for their concern is that if the appliance or an

isolated section of an appliance has been evacuated to at least

atmospheric pressure, only a limited amount of refrigerant is likely to

be released. The commenters further stated that the intent of the

rulemaking is to reduce the emissions of ozone-depleting refrigerants.

The commenters believe that while mothballed, there would essentially

be no emission of ozone-depleting refrigerants. Another commenter

stated that EPA should focus on the amount of time that an appliance

actually operates at an excessive leak rate and not the amount of time

that a repair takes. Another commenter stated that it may take some

time to determine that the leak rate is above the threshold. After that

determination is made, it may take time for a part to be ordered. The

commenter is concerned that if the system mothballing definition

excludes appliances shut down for the purposes of completing repairs,

the owner or operator facing the above scenario would be forced into a

retrofit/replacement mode. One commenter suggested that recordkeeping

and reporting requirements could be used to monitor the appropriateness

of using this provision.

EPA understands the concerns raised by these commenters. The

intention of Section 608 is to limit refrigerant emissions, not to

determine how long it should take to repair an appliance.

EPA intended to permit system mothballing because the risk of

releases from evacuated appliances is minimal. EPA did not intend to

preclude repair work from occurring while an appliance has been

mothballed. Instead, EPA was attempting to distinguish between system

mothballing and other types of shutdowns, for different purposes,

particularly industrial process shutdowns. In most cases, EPA believes

that system mothballing may constitute extensive shutdowns. In many

cases, the appliance could be mothballed for a season.

EPA received comments describing scenarios where mothballing

appliances and simultaneously completing repairs would be a practical

solution. Examples include manufacturing processes that produce

material that have only a seasonal demand, where a spare or backup

appliance can be brought on line, and where there is excess capacity in

another refrigerant appliance that can be used to replace the capacity

lost by mothballing an appliance. Commenters believe that evacuating

the appliance to at least atmospheric pressure, and allowing the repair

activities to occur, will limit emissions. Commenters further recognize

the need to complete verification tests regardless of the conditions

under which the repair work was conducted.

EPA agrees that completing repairs while the appliance is evacuated

equates to almost no risk of emissions. Therefore, through this action,

EPA is modifying the proposed definition of system mothballing. EPA

will delete the language ``not for purposes of servicing or repairing

the appliance'' from the definition of system mothballing. However, to

ensure that for industrial process refrigeration equipment,

verification tests still occur, EPA will include language stating that

an initial verification test be completed prior to returning these

appliances to normal operating conditions and that a follow-up

verification test will be required within 30 days.

L. Grandfathering

EPA received one comment regarding the treatment of industrial

process refrigeration equipment that began retrofit or replacement

activities prior to the promulgation of this rulemaking. A company that

discovered a leak in early 1994 that exceeded 35 percent developed a

retrofit plan under the existing requirements. It now has become

apparent that the company will require additional time beyond the one

year and if these regulations were already promulgated, the company

most likely would have qualified for additional time. Since today's

action was not already effective, and therefore

[[Page 40437]]

no extensions could be applied for, the commenter is concerned with how

this appliance will be treated. EPA believes that in this case good

faith efforts were made by the owner or operator of industrial process

refrigeration equipment to meet the existing requirements prior to the

stay. In cases where the owners or operators have developed plans and

made good faith efforts to retrofit or retire appliances prior to the

promulgation of today's action, and where these efforts are not yet

complete, the owners or operators must develop a plan and complete all

retrofit or retirement actions by August 8, 1996. The owners or

operators are permitted to provide for extensions beyond August 8,

1996, in accordance with Sec. 82.156 (i)(7) and (i)(8).

M. Terminology

EPA received comments asking the Agency to clarify, modify, and/or

ensure consistency with EPA's use of certain terms, including but not

limited to ``facility,'' ``system,'' and ``appliance.'' EPA has

reviewed the regulatory text and the preamble to incorporate

appropriate changes. EPA anticipates that these changes should lessen

any confusion in distinguishing between a facility, a system, and an

appliance. EPA also has considered all other comments concerning

grammar and language and believes they have been appropriately

addressed in the preamble and regulatory text.

EPA received one comment suggesting that where the regulatory text

states that a leak rate should be reduced to 35 or 15 percent, the

language should be amended to state 35 or 15 percent and below in order

to include all universe of allowable leak rates. EPA agreed with this

commenter and has made the necessary changes.

EPA received comments requesting additional cross-referencing in

the regulatory text. One commenter suggested that particular cross-

references should be added, deleted, or modified to more accurately

indicate the Agency's intent. EPA believes it has addressed all these

concerns.

N. Regulatory Impact Analysis

It has been determined by OMB and EPA that the proposed amendment

to the final rule is not a ``significant regulatory action'' under the

terms of Executive Order 12866 and is therefore not subject to OMB

review under the Executive Order. EPA received one comment disagreeing

with this determination. The commenter stated that though the rule

provides for extensions for leak repair, the recordkeeping burdens make

this option essentially useless. The commenter further states that if

other leaks cannot be located within 180 days, the rule has a net

effect of mandating retrofits. The commenter believes retrofitting one

plant alone could exceed $10 million. That multiplied over an entire

group of affected industries would deem the rule significant.

EPA strongly disagrees with this commenter's view that this rule is

significant. EPA did perform a Regulatory Impact Analysis (RIA) when

the original regulations regarding section 608 were promulgated in May

1993. This RIA is contained in Air Docket A-92-01. At that time, the

costs associated with repairing and retrofitting appliances were

considered. Today's action only lessens the impact of the original

requirements by providing flexibility. The owners or operators of

affected equipment have many options. One failed verification test does

not immediately mean that retrofitting or replacing the appliance is

the only option available as the only avenue. Furthermore, the

provision permitting 180 days to decrease the overall leak rate of the

industrial process refrigeration equipment was not contained in the

original rulemaking. The owners or operators of a leaky appliance would

have had to repair the leaks within 30 days or develop a retrofit or

retirement plan. Any new recordkeeping or reporting requirements are

necessary as a result of the more flexible approach. Most commenters

agreed that these provisions were necessary. Moreover, as comments in

the docket suggest, many of the data elements contained in the

recordkeeping and reporting requirements were suggested by CMA and its

members.

EPA does not believe that this rulemaking substantially increases

the burden on the regulated community. Moreover, EPA believes that is

the impact of this rulemaking a more flexible less costly means for

handling leaks.

O. Allowing Appliances To Be Pressurized To Slightly Above O PSIG

EPA proposed to allow appliances to be pressurized up to 5 psig in

order to change oil in industrial process refrigeration equipment. The

NPRM (60 FR 4002) states that a small positive pressure is needed

during oil changes to force the oil from its reservoir. Oil will not

flow from a reservoir that is under vacuum. EPA stated that this

approach will reduce emissions and thus will have an overall positive

impact on the environment.

EPA received comments regarding this issue. One commenter asked for

EPA to reopen and extend the comment period. Since this provision is

part of a settlement agreement with a court-ordered final signature

date of July 31, 1995, EPA is unable to reopen the comment period at

this time. Furthermore, EPA did provide a thirty-day comment period

with the option of holding a public hearing if one had been requested,

in accordance with the Administrative Procedures Act. Moreover, to the

extent practicable, EPA has responded to all comments including those

received after the close of the comment period.3

\3\ This particular comment was received the evening of June

15, 1995. The comment period closed February 21, 1995.

---------------------------------------------------------------------------

Several commenters agreed with EPA's proposed approach, stating

that permitting evacuation or pressurization to slightly above 0 psig

would facilitate the removal of oil. One commenter stated that only a

small amount of positive pressure is necessary because technicians

would not let oil out at full system pressure since the oil would

immediately turn into a large volume of froth.

EPA also received comments disagreeing with the need to reduce

pressure. One commenter stated that Sec. 82.156 and Sec. 82.158 should

not apply to oil changes. The commenter stated that any unit that

requires that the oil be changed is provided with proper valves for oil

change. The only refrigerant that is vented is the refrigerant

contained in the oil. The commenter believes that the oil will be

heated using the system oil heaters to bring the oil up to the

manufacturer's design temperature. The hot oil will contain the least

amount of refrigerant possible for the system stand-by pressure. The

commenter believes that any requirement to reduce the pressure of the

system to 5 psig would add major costs to the preventive maintenance of

the unit. A job that may take a few hours would become a two-day job in

cases where the unit does not have a system receiver. A refrigerant

recovery unit and tanks would have to be brought to and removed from

the job site. The commenter believes that the rules as written allow

for oil removal without changing the system pressure since no

evacuation is necessary after the oil change and results in only a ``de

minimis'' release of refrigerant. Another commenter stated that

refrigerant entrained in oil is not subject to the regulations.

EPA disagrees with these commenters' interpretations of the

[[Page 40438]]

regulations. Under the initial regulations promulgated under section

608 and published May 14, 1993 (58 FR 28660), oil removal is considered

a minor repair. Consistent with the requirements for all minor repairs

the appliance must be brought to at least atmospheric pressure for oil

removal.

The settlement agreement between EPA and CMA was based on the need

to provide greater flexibility to the regulated community. The

inclusion of a proposed provision to allow a slight positive pressure

was viewed as a relaxation of the current regulations. This implies

that a significant part of the regulated community agreed with EPA's

interpretation that under the May 14 rule, oil removal required

evacuation to atmospheric pressure.

Two commenters stated that EPA should not consider removing oil to

be opening the appliance. One commenter stated that when the oil has

been removed the valve is closed and the oil container is removed. The

second commenter stated that the oil remaining in the sump is a barrier

that will keep the refrigerant in the appliance. The impeller is a

labyrinth seal with only .002-.003 inch clearance, and the valve

through which the oil is drained is a small orifice. This commenter

believes that if extreme precautionary measures are taken the appliance

is not truly opened.

EPA disagrees with these commenters. EPA believes that changing oil

does constitute opening the appliance. Opening an appliance is defined

as ``any service, maintenance, or repair on an appliance that would

release class I or class II refrigerant from the appliance to the

atmosphere unless the refrigerant were recovered previously from the

appliance * * *'' (59 FR 55926). EPA believes that refrigerant would be

released during an oil change, unless the refrigerant were recovered

previously. One commenter recognized that such a risk exists by stating

that there is a need for ``extreme precautionary measures * * * during

oil changes'' and that only under those circumstances is the ``system

not truly `opened' and there is little risk that refrigerant in the

system will be vented to the atmosphere.'' EPA believes that the need

to take ``extreme precautionary measures'' to prevent a release

demonstrates that without such precautions a release is likely.

Furthermore, EPA believes there is no way to assure that refrigerant is

not released except to evacuate the appliance to 5 psig or below.

Therefore, EPA continues to believe that removing oil constitutes

opening the appliance.

EPA is concerned not only with the bulk of the refrigerant charge,

but also with the refrigerant entrained in the oil. EPA has stated in

applicability determination #23 and in the preamble to the initial

regulations (58 FR 28677) that after an appliance is reduced to

atmospheric pressure, the refrigerant entrained in the oil is not

subject to those regulations. EPA would like to clarify that where the

refrigerant and oil have not been drawn to at least atmospheric

pressure, section 608(c), the venting provision, would apply.

Therefore, recovery of the refrigerant from that oil would still be

required.

During the settlement negotiations with CMA, CMA supplied

information stating that the percentage of refrigerant entrained in oil

for an appliance at 80 degrees fahrenheit could be 50 percent of the

total volume of oil for HCFC-22. If the pressure is reduced to 5 psig

the percentage of refrigerant is less than 5 percent for HCFC-22. EPA

believes that this demonstrates that without a requirement to reduce

the pressure or to recover that refrigerant in some other way,

significant quantities of refrigerant will be released.

One commenter suggested an approach that would recover the

refrigerant in the oil through a less time-consuming method. The

commenter suggested that instead of evacuating the refrigerant EPA

should permit the oil to be drained into a secondary vessel that can be

isolated from the chiller and evacuated to recover the refrigerant in

the oil. EPA received another comment stating that this method would

still be time-consuming and costly. After reviewing the comments, EPA

believes that this method actually will be less time-consuming and

costly than the current requirements. Those concerned with the time and

cost involved with this procedure should consider whether their current

practices are actually in violation of the regulations.

EPA is concerned with preventing the release of the refrigerant

through the opening of the appliance. Therefore, EPA believes that if

the oil can be drained into a system receiver, where the system

receiver can be isolated and evacuated to a pressure no greater than 5

psig, the goal would be achieved. EPA believes this a reasonable

alternative to the requirements currently in effect. Therefore, through

this action, EPA will revise the regulations to permit appliances to be

pressurized to slightly above 0 psig (but not to exceed 5 psig) during

oil changes and/or to permit the oil to be drained into a system

receiver where the technician will then recover the oil entrained in

the refrigerant to 0 psig.

VI. Judicial Review

Under Section 307(b)(1) of the Act, EPA finds that these

regulations are of national applicability. Accordingly, judicial review

of this action is available only by the filing of a petition for review

in the United States Court of Appeals for the District of Columbia

Circuit within sixty days of publication of this action in the Federal

Register. Under Section 307(b)(2), the requirements of this rule may

not be challenged later in judicial proceedings brought to enforce

those requirements.

VII. Administrative Requirements

A. Executive Order 12866

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the

Agency must determine whether this regulatory action is ``significant''

and therefore subject to OMB review and the requirements of the

Executive Order. The Order defines ``significant'' regulatory action as

one that is likely to lead to a rule that may:

(1) Have an annual effect on the economy of $100 million or more,

or adversely and materially affect a sector of the economy,

productivity, competition, jobs, the environment, public health or

safety, or State, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlement, grants,

user fees, or loan programs or the rights and obligations of recipients

thereof; or

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

the Executive Order.

It has been determined by OMB and EPA that this final action to

amendment to the final rule is not a ``significant regulatory action''

under the terms of Executive Order 12866 and is therefore not subject

to OMB review under the Executive Order.

B. Unfunded Mandates Act

Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded

Mandates Act'') (signed into law on March 22, 1995) requires that the

Agency prepare a budgetary impact statement before promulgating a rule

that includes a Federal mandate that may result in expenditure by

State, local, and tribal governments, in aggregate, or by the private

sector, of $100 million or more in any one year. Section 203 requires

the Agency to establish a plan for obtaining input from and informing,

educating, and advising any small governments that may be

[[Page 40439]]

significantly or uniquely affected by the rule.

Under section 205 of the Unfunded Mandates Act, the Agency must

identify and consider a reasonable number of regulatory alternatives

before promulgating a rule for which a budgetary impact statement must

be prepared. The Agency must select from those alternatives the least

costly, most cost-effective, or least burdensome alternative that

achieves the objectives of the rule, unless the Agency explains why

this alternative is not selected or the selection of this alternative

is inconsistent with law.

Because this final rule is estimated to result in the expenditure

by State, local, and tribal governments or private sector of less than

$100 million in any one year, the Agency has not prepared a budgetary

impact statement or specifically addressed the selection of the least

costly, most cost-effective, or least burdensome alternative. Because

small governments will not be significantly or uniquely affected by

this rule, the Agency is not required to develop a plan with regard to

small governments. As discussed in this preamble, this rulemaking has

the net effect of reducing the burden of part 82 subpart F of the

Stratospheric Protection regulations on regulated entities, including

State, local, and tribal governments or private sector entities by

providing greater flexibility.

C. Paperwork Reduction Act

The information collection requirements in this rule have been

submitted to by the Office of Management and Budget (OMB) under the

Paperwork Reduction Act, 44 U.S.C. 3501 et seq and will be assigned

control number 2060-0256.

The current collection of information has an estimated reporting

and recordkeeping burden averaging 564,807 hours per respondent;

however, this final action will decrease that burden by 108 hours.

These estimates include time for reviewing instructions, searching

existing data sources, gathering and maintaining the data needed, and

completing and reviewing the collection of information.

Send comments regarding the burden estimate or any other aspect of

this collection of information, including suggestions for reducing this

burden to Director, Regulatory Information Division; EPA; 401 M Street

SW., (Mail Code 2136); Washington, DC 20460; and to the Office of

Information and Regulatory Affairs, Office of Management and Budget,

Washington, DC 20503, marked ``Attention: Desk Officer for EPA.''

D. Regulatory Flexibility Act

The Regulatory Flexibility Act, 5 U.S.C. 601-602, requires that

Federal agencies examine the impacts of their regulations on small

entities. Under 5 U.S.C. 604(a), whenever an agency is required to

publish a general notice of proposed rulemaking, it must prepare and

make available for public comment an initial regulatory flexibility

analysis (RFA). Such an analysis is not required if the head of an

agency certifies that a rule will not have a significant economic

impact on a substantial number of small entities, pursuant to 5 U.S.C.

605(b).

EPA believes that any impact that this amendment will have on the

regulated community will serve only to provide relief from otherwise

applicable regulations, and will therefore limit the negative economic

impact associated with the regulations previously promulgated under

section 608. An examination of the impacts on small entities was

discussed in the final rule (58 FR 28660). That final rule assessed the

impact the rule may have on small entities. A separate regulatory

impact analysis was developed. That impact analysis accompanied the

final rule and is contained in Docket A-92-01.

I certify that this amendment to the refrigerant recycling rule

will not have any additional negative economic impacts on any small

entities.

Dated: July 25, 1995.

Carol M. Browner,

Administrator.

List of Subjects in 40 CFR Part 82

Environmental protection, Chemical Manufacturers Association,

Industrial process refrigeration, Leak repair, Mothballing,

Radiological contamination, Reporting and recordkeeping requirements,

Retrofit, Verification test.

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 82.152 is amended by removing the paragraph designations

and placing the definitions in alphabetical order; by revising the

definition for ``Industrial process refrigeration''; and by adding new

definitions in alphabetical order to read as follows:

Sec. 82.152 Definitions.

* * * * *

Critical component means, for the purposes of Sec. 82.156(i), a

component without which industrial process refrigeration equipment will

not function, will be unsafe in its intended environment, and/or will

be subject to failures that would cause the industrial process served

by the refrigeration appliance to be unsafe.

Custom-built means, for the purposes of Sec. 82.156(i), that the

equipment or any of its critical components cannot be purchased and/or

installed without being uniquely designed, fabricated and/or assembled

to satisfy a specific set of industrial process conditions.

Follow-up verification test means, for the purposes of

Sec. 82.156(i), those tests that involve checking the repairs within 30

days of the appliance's returning to normal operating characteristics

and conditions. Follow-up verification tests for appliances from which

the refrigerant charge has been evacuated means a test conducted after

the appliance or portion of the appliance has resumed operation at

normal operating characteristics and conditions of temperature and

pressure, except in cases where sound professional judgment dictates

that these tests will be more meaningful if performed prior to the

return to normal operating characteristics and conditions. A follow-up

verification test with respect to repairs conducted without evacuation

of the refrigerant charge means a reverification test conducted after

the initial verification test and usually within 30 days of normal

operating conditions. Where an appliance is not evacuated, it is only

necessary to conclude any required changes in pressure, temperature or

other conditions to return the appliance to normal operating

characteristics and conditions.

Full charge means, for the purposes of Sec. 82.156(i), the amount

of refrigerant required for normal operating characteristics and

conditions of the appliance as determined by using one of the following

four methods or a combination of one of the following four methods:

(1) The equipment manufacturers' determination of the correct full

charge for the equipment;

(2) Determining the full charge by appropriate calculations based

on component sizes, density of refrigerant, volume of piping, and all

other relevant considerations;

(3) The use of actual measurements of the amount of refrigerant

added or evacuated from the appliance; and/or

[[Page 40440]]

(4) The use of an established range based on the best available

data, regarding the normal operating characteristics and conditions for

the appliance, where the mid-point of the range will serve as the full

charge, and where records are maintained in accordance with

Sec. 82.166(q).

* * * * *

Industrial process refrigeration means, for the purposes of

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

pharmaceutical, petrochemical and manufacturing industries. These

appliances are directly linked to the industrial process. This sector

also includes industrial ice machines, appliances used directly in the

generation of electricity, and ice rinks. Where one appliance is used

for both industrial process refrigeration and other applications, it

will be considered industrial process refrigeration equipment if 50

percent or more of its operating capacity is used for industrial

process refrigeration.

Industrial process shutdown means, for the purposes of

Sec. 82.156(i), that an industrial process or facility temporarily

ceases to operate or manufacture whatever is being produced at that

facility.

Initial verification test means, for the purposes of

Sec. 82.156(i), those leak tests that are conducted as soon as

practicable after the repair is completed. An initial verification

test, with regard to the leak repairs that require the evacuation of

the appliance or portion of the appliance, means a test conducted prior

to the replacement of the full refrigerant charge and before the

appliance or portion of the appliance has reached operation at normal

operating characteristics and conditions of temperature and pressure.

An initial verification test with regard to repairs conducted without

the evacuation of the refrigerant charge means a test conducted as soon

as practicable after the conclusion of the repair work.

* * * * *

Normal operating characteristics or conditions means, for the

purposes of Sec. 82.156(i), temperatures, pressures, fluid flows,

speeds and other characteristics that would normally be expected for a

given process load and ambient condition during operation. Normal

operating characteristics and conditions are marked by the absence of

atypical conditions affecting the operation of the refrigeration

appliance.

* * * * *

Suitable replacement refrigerant means, for the purposes of

Sec. 82.156(i)(7)(i), a refrigerant that is acceptable under section

612(c) of the Clean Air Act Amendments of 1990 and all regulations

promulgated under that section, compatible with other materials with

which it may come into contact, and able to achieve the temperatures

required for the affected industrial process in a technically feasible

manner.

* * * * *

System mothballing means the intentional shutting down of a

refrigeration appliance undertaken for an extended period of time by

the owners or operators of that facility, where the refrigerant has

been evacuated from the appliance or the affected isolated section of

the appliance, at least to atmospheric pressure.

* * * * *

3. Section 82.156 is amended by revising paragraphs (a)(2)(i)(A)

and (a)(2)(i)(B), adding a new paragraph (a)(2)(i)(C), and revising

paragraph (i) to read as follows:

Sec. 82.156 Required practices.

* * * * *

(a) * * *

(2)(i) * * *

(A) Be evacuated to a pressure no higher than 0 psig before it is

opened if it is a high- or very high-pressure appliance;

(B) Be pressurized to 0 psig before it is opened if it is a low-

pressure appliance. Persons pressurizing low-pressure appliances that

use refrigerants with boiling points at or below 85 degrees Fahrenheit

at 29.9 inches of mercury (standard atmospheric pressure), (e.g., CFC-

11 and HCFC-123), must not use methods such as nitrogen, that require

subsequent purging. Persons pressurizing low-pressure appliances that

use refrigerants with boiling points above 85 degrees Fahrenheit at

29.9 inches of mercury, e.g., CFC-113, must use heat to raise the

internal pressure of the appliance as much as possible, but may use

nitrogen to raise the internal pressure of the appliance from the level

attainable through use of heat to atmospheric pressure; or

(C) For the purposes of oil changes, be evacuated or pressurized to

a pressure no higher than 5 psig, before it is opened; or drain the oil

into a system receiver to be evacuated or pressurized to a pressure no

higher than 5 psig.

* * * * *

(i)(1) Owners or operators of commercial refrigeration equipment

normally containing more than 50 pounds of refrigerant must have leaks

repaired in accordance with paragraph (i)(9) of this section, if the

appliance is leaking at a rate such that the loss of refrigerant will

exceed 35 percent of the total charge during a 12-month period, except

as described in paragraphs (i)(6), (i)(8), and (i)(10) of this section

and paragraphs (i)(1)(i), (i)(1)(ii), and (i)(1)(iii) of this section.

Repairs must bring the annual leak rate to below 35 percent.

(i) If the owners or operators of the federally-owned commercial

refrigerant appliances determine that the leaks cannot be repaired in

accordance with paragraph (i)(9) of this section and that an extension

in accordance with the requirements discussed in this paragraph

(i)(1)(i) of this section apply, they must document all repair efforts,

and notify EPA of their inability to comply within the 30-day repair

requirement, and the reason for the inability must be submitted to EPA

in accordance with Sec. 82.166(n). Such notification must be made

within 30 days of discovering the leaks. EPA will determine if the

extension requested in accordance with the requirements discussed in

paragraph (i)(1)(i) of this section is justified. If the extension is

not justified, EPA will notify the owner/operator within 30 days of

receipt of the notification.

(ii) Owners or operators of federally-owned commercial

refrigeration equipment may have more than 30 days to repair leaks if

the refrigeration appliance is located in an area subject to

radiological contamination or where the shutting down of the appliance

will directly lead to radiological contamination. Only the additional

time needed to conduct and complete repairs in a safe working

environment will be permitted.

(iii) Owners or operators of federally-owned commercial

refrigeration equipment requesting or who are granted time extensions

under this paragraph must comply with paragraphs (i)(3) and (i)(4) of

this section.

(2) The owners or operators of industrial process refrigeration

equipment normally containing more than 50 pounds of refrigerant must

have leaks repaired if the appliance is leaking at a rate such that the

loss of refrigerant will exceed 35 percent of the total charge during a

12-month period in accordance with paragraph (i)(9) of this section,

except as described in paragraphs (i)(6), (i)(7) and (i)(10) of this

section, and paragraphs (i)(2)(i) and (i)(2)(ii) of this section.

Repairs must bring annual leak rates to below 35 percent during a 12-

month period. If the owners or operators of the industrial process

refrigeration equipment determine that the leak rate cannot be brought

to below 35 percent during a 12-month period within 30 days (or 120

[[Page 40441]]

days, where an industrial process shutdown in accordance with paragraph

(i)(2)(ii) of this section is required,) and in accordance with

paragraph (i)(9) of this section, and that an extension in accordance

with the requirements discussed in this paragraph apply, the owners or

operators of the appliance must document all repair efforts, and notify

EPA of the reason for the inability in accordance with Sec. 82.166(n)

within 30 days of making this determination. Owners or operators who

obtain an extension pursuant to this section or elect to utilize the

additional time provided in paragraph (i)(2)(i) of this section, must

conduct all necessary leak repairs, if any, that do not require any

additional time beyond the initial 30 or 120 days.

(i) The owners or operators of industrial process refrigeration

equipment are permitted more than 30 days (or 120 days where an

industrial process shutdown in accordance with paragraph (i)(2)(ii) of

this section is required) to repair leaks, if the necessary parts are

unavailable or if requirements of other applicable federal, state, or

local regulations make a repair within 30 or 120 days impossible. Only

the additional time needed to receive delivery of the necessary parts

or to comply with the pertinent regulations will be permitted.

(ii) Owners or operators of industrial process refrigeration

equipment will have a 120-day repair period, rather than a 30-day

repair period, to repair leaks in instances where an industrial process

shutdown is needed to repair a leak or leaks from industrial process

refrigeration equipment.

(3) The owners or operators of industrial process refrigeration

equipment who are granted additional time under paragraphs (i)(1),

(i)(2), and (i)(5) of this section must ensure that the repair efforts

performed be those that sound professional judgment indicate will be

sufficient to bring the leak rates below the applicable allowable

annual rate. When an industrial process shutdown has occurred or when

repairs have been made while an appliance is mothballed, an initial

verification test shall be conducted at the conclusion of the repairs

and a follow-up verification test shall be conducted within 30 days of

completing the repairs or within 30 days of bringing the appliance back

on-line, if taken off-line, but no sooner than when the system has

achieved normal operating characteristics and conditions. When repairs

have been conducted without an industrial process shutdown or system

mothballing, an initial verification test shall be conducted at the

conclusion of the repair efforts and a follow-up verification test

shall be conducted within 30 days after the initial follow-up

verification test. In all cases, the follow-up verification test shall

be conducted at normal operating characteristics and conditions unless

sound professional judgment indicates that tests performed at normal

operating characteristics and conditions will produce less reliable

results, in which case the follow-up verification test shall be

conducted at or near the normal operating pressure where practicable,

and at or near the normal operating temperature if practicable, and

within 30 days of completing the repair efforts.

(i) If industrial process refrigeration equipment is taken off

line, it can not be brought back on-line until an initial verification

test indicates that the repairs undertaken in accordance with

paragraphs (i)(1) (i), (ii), and (iii), or (i)(2) (i) and (ii), or (5)

(i), (ii) and (iii) of this section, have been successfully completed,

demonstrating the leak or leaks are repaired or where the owners or

operators of the industrial process refrigeration equipment will

retrofit/replace/retire the industrial process refrigeration equipment

in accordance with paragraph (i)(6) of this section.

(ii) If the follow-up verification test indicates that the repairs

to industrial process refrigeration equipment have not been

successfully completed, the owner must retrofit or replace the

equipment in accordance with paragraph (i)(6) of this section within

one year after the failure to verify that the repairs had been

successfully completed or such longer time period as may apply in

accordance with paragraphs (i)(7) (i), (ii) and (iii) or (i)(8)(i) and

(ii) of this section. The owners and operators of industrial process

refrigerati

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