Protection of Stratospheric Ozone: Proposal to Extend the Existing Reclamation Requirements

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[FRL-5645-3]

RIN 2060-AF36

Protection of Stratospheric Ozone: Proposal to Extend the

Existing Reclamation Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Through this action EPA is proposing to amend the Clean Air

Act section 608 refrigerant recycling regulations to extend the

effectiveness of the refrigerant purity requirements of Sec. 82.154 (g)

and (h), which are currently scheduled to expire on December 31, 1996,

until EPA adopts revised purity requirements. EPA initially extended

these requirements in response to requests from the air-conditioning

and refrigeration industry to avoid widespread contamination of the

stock of chlorofluorocarbon (CFC) and hydrochlorofluorocarbon (HCFC)

refrigerants that could result from the lapse of the purity standard.

Such contamination would cause extensive damage to air-conditioning and

refrigeration equipment, release of refrigerants, and refrigerant

shortages with consequent price increases.

EPA proposed a more flexible approach to ensuring the purity of

refrigerants on February 29, 1996, and solicited public comment. EPA

received significant comments regarding the potential delegation of

authority and the unintentional creation of a monopoly. EPA believes

prior to adopting a more flexible approach EPA must further consider

these comments. EPA intends to issue a supplemental proposal that would

revise several aspects of the February 29, 1996 proposal.

Today EPA is proposing to extend the current reclamation

requirements. This continuation will not result in any additional

burden on the regulated community. Moreover, the retention of the

reclamation requirement will protect the environment, public health,

and consumers by ensuring that contaminated refrigerants are not vented

or charged into equipment.

DATES: Comments must be received by December 2, 1996 unless a public

hearing is held. A public hearing, if requested, will be held in

Washington, DC. If such a hearing is requested, it will be held on

November 12, 1996 at 9 a.m. Anyone who wishes to request a hearing

should call Cindy Newberg at 202/233-9729 by November 8, 1996. If a

public hearing is held, the comment period will be extended until

December 16, 1996.

ADDRESSES: Comments and materials supporting this rulemaking are

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

Environmental Protection Agency, 401 M Street, SW., Washington, D.C.

20460 in room M-1500. Dockets may be inspected from 8:00 a.m. until

5:30 p.m., Monday through Friday. A reasonable fee may be charged for

copying docket materials. Comments on this action should be addressed

to Public Docket No, A 92-01 VIII.L at the above address.

If a public hearing is held, it will be held at the Washington

Information Center, Headquarters Services, Waterside Mall (ground

floor) 401 M Street, SW., Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Cindy Newberg, Program Implementation

Branch, Stratospheric Protection Division, Office of Atmospheric

Programs, Office of Air and Radiation (6205-J), 401 M Street, SW.,

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

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

information. Interested persons may contact the Stratospheric

Protection Hotline to learn if a hearing will be held and to obtain the

date and location of any hearing. Any hearing will be strictly limited

to the subject matter of this proposal.

SUPPLEMENTARY INFORMATION: The contents of this preamble are listed in

the following outline:

I. Regulated Entities

II. Overview

III. Background

VI. Today's Action

V. Summary of Support Analysis

I. Regulated Entities

Entities potentially regulated by this action are those that wish

to recover, recycle, reclaim, sell, or distribute in interstate

commerce refrigerants that contain chlorofluorocarbons (CFCs) and/or

hydrochlorofluorocarbons (HCFCs). Regulated categories and entities

include:

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Example of regulated

Category entities

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Industry.................................. Reclaimers.

Equipment manufacturers.

Air-conditioning and

refrigeration contractors

and technicians.

Owners and operators of

industrial process

refrigeration equipment.

Laboratories.

Plumbing, heating and

cooling contractors.

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This table is not intended to be exhaustive, but rather provides a

guide for readers regarding entities likely to be regulated by this

action. This table lists the types of entities that EPA is now aware

could potentially be affected by this action. Other types of entities

not listed in the table could also be affected. To determine whether

your company is regulated by this action, you should carefully examine

the applicability criteria contained in Section 608 of the Clean Air

Amendments of 1990; discussed in regulations published on May 14, 1993

(59 FR 28660); and discussed below. If you have questions regarding the

applicability of this action to a particular entity, consult the person

listed in the preceding FOR FURTHER INFORMATION CONTACT section.

II. Overview

Paragraphs 82.154(g) and (h) of 40 CFR part 82, subpart F set

requirements for sale of used refrigerant, mandating that it meet

certain purity standards. These requirements will expire on December

31, 1996. EPA is considering whether it is appropriate to promulgate

new, more flexible, requirements based on industry guidelines. To that

end, EPA issued a Notice of Proposed Rulemaking (NPRM) on February 29,

1996 (61 FR 7858) that addressed various issues including the adoption

of a more flexible approach to reclamation. EPA has analyzed the public

comments. EPA will issue a final rulemaking soon; however, EPA has

decided not to complete promulgation of all the proposed changes

discussed in that NPRM as part of one final rulemaking.

The February 29, 1996, NPRM was an omnibus notice that addressed

many aspects of 40 CFR Part 82, Subpart F. Amongst the various issues

considered in that NPRM is the adoption of a more flexible approach to

reclamation with the related adoption of third-party certification for

laboratories and reclaimers. Other issues addressed in the NPRM include

changes to the recordkeeping and reporting requirements for technician

certification programs, the adoption of an updated

[[Page 56494]]

industry standard, amending the definitions of motor vehicle air-

conditioning-like appliances and small appliances, the adoption of

formal revocation procedures for approved certification programs,

transfers of refrigerant between subsidiaries, and clarifying the

distinction between major and minor repairs. EPA planned to issue one

final rulemaking later this year. Instead, after careful analysis, EPA

intends to issue two notices: a final rulemaking completing many

aspects of that NPRM; and a separate revised proposal notice

reconsidering the adoption of a more flexible approach to reclamation

and third-party certification for laboratories and reclaimers. EPA has

determined that this course of action is necessary to provide

sufficient opportunity for the Agency to fully consider a broad range

of alternative structures for an effective program that ensures the

quality of refrigerants.

Central to the proposed adoption of a more flexible approach to

reclamation, is the proposed adoption of third-party certification

programs for both laboratories and reclaimers. Commenters have

identified several specific concerns regarding the appropriateness of

delegating various functions to third-parties, and whether EPA may

unintentionally create a monopoly. Through today's notice, EPA is not

signaling the Agency's agreement or disagreement with any of the

comments received. EPA is merely indicating a need to further consider

these comments. EPA believes a flexible approach to reclamation can be

developed that avoids any inappropriate delegations and also does not

force the creation of unwanted monopolies. However, the commenters have

prompted EPA to consider other potential structures for such a program

that vary significantly from what was proposed. To ensure that the

public has adequate opportunity to comment, EPA intends to issue a

revised proposal this winter.

While EPA believes its appropriate to provide an opportunity for

the public to comment on changes to the NPRM, a lapse in the current

standards could result in widespread contamination of the stock of CFC

and HCFC refrigerants and must be avoided. Such contamination would

cause extensive damage to air-conditioning and refrigeration equipment,

release of refrigerants, and refrigerant shortages with consequent

price increases. Release of CFC and HCFC refrigerants has been found to

deplete stratospheric ozone, resulting in increased human and

environmental exposure to ultraviolet radiation. Increased exposure to

ultraviolet radiation in turn can lead to serious health and

environmental effects. Therefore, EPA is proposing to extend the

effectiveness of the current refrigerant purity requirements, only

until EPA can complete a rulemaking to adopt more flexible requirements

that will still ensure refrigerant purity.

III. Background

On May 14, 1993, EPA published final regulations establishing a

recycling program for ozone-depleting refrigerants recovered during the

servicing and disposal of air-conditioning and refrigeration equipment

(58 FR 28660). These regulations include evacuation requirements for

appliances being serviced or disposed of, standards and testing

requirements for used refrigerant sold to a new owner, certification

requirements for refrigerant reclaimers, and standards and testing

requirements for refrigerant recycling and recovery equipment.

When EPA promulgated the final rule, the Agency noted that further

rulemaking would be required to address issues that had been raised

during the comment period for the proposed rule (57 FR 58644). One of

these issues was whether a standard for used refrigerant could be

developed that would protect air-conditioning and refrigeration

equipment, but would allow technicians to clean refrigerant themselves,

rather than sending the refrigerant to an off-site reclaimer.

The final rule published on May 14, 1993, requires that refrigerant

sold to a new owner be reclaimed to the ARI Standard 700 of purity by a

certified reclaimer (Sec. 82.154(g) and (h) referencing standard in

Sec. 82.164 and the definition of reclaim found in Sec. 82.152). As

discussed in the final rule, this requirement protects the purity of

used refrigerant to prevent damage to air-conditioning and

refrigeration equipment from the use of contaminated refrigerant.

Equipment damage from contaminated refrigerant would result in costs to

equipment owners, in releases of refrigerant from damaged equipment

through increased leakage, servicing and replacement, and in reduction

in consumer confidence in the quality of used refrigerant. This

reduction in consumer confidence could lead to the premature retirement

or retrofit of CFC or HCFC equipment since consumers would no longer

believe that a sufficient stock of trustworthy refrigerants was

available.

Although the reclamation requirements contained in 82.154(g) and

(h) would clearly protect equipment, EPA believed that a more flexible

but as effective requirement should be developed, particularly for

refrigerant transferred between owners whose equipment was similar and

was serviced by the same contractor. However, the only existing

standard at the time EPA promulgated the rule was ARI Standard 700, and

the only agreed upon means of enforcing it was by limiting sale of used

refrigerant to only certified reclaimers. Certified reclaimers, unlike

contractors or technicians, are required to have the equipment

available that can verify that the refrigerant meets the purity

standards, thus ensuring its purity prior to selling the refrigerants.

In order to encourage industry to explore the possibility of

developing more flexible but still effective standards and technologies

for purifying refrigerant, as well as more flexible means for ensuring

compliance with purity standards, EPA adopted a commenter's suggestion

and established an expiration date, or ``sunset,'' for the reclamation

requirement. EPA accordingly made the reclamation requirements at

Sec. 82.154(g) and (h) effective until May 15, 1995, two years after

publication of the final rule. EPA believed that this two-year period

would be sufficient for industry to develop new guidelines for reuse of

refrigerant and for EPA to complete a rulemaking to adopt them if EPA

determined that they would continue to reduce emissions to the lowest

achievable level and maximize the recapture and recycling of

refrigerants (58 FR 28679).

In December, 1994, a committee representing a wide range of

interests within the air-conditioning and refrigeration industry

published Industry Recycling Guide (IRG-2): Handling and Reuse of

Refrigerants in the United States. This document establishes

requirements and recommendations for the reuse of refrigerant in a

number of different situations, including refrigerant transfers on the

open market and between equipment owned by different people but

serviced by the same contractor. EPA began pursuing a rulemaking to

adopt the IRG-2 requirements. However, because the original sunset date

was approaching, EPA also pursued a rulemaking to extend the

effectiveness of Sec. 82.154(g) and (h) (60 FR 14608). That rulemaking

extended the effectiveness of the provisions until March 18, 1996. EPA

believed that this extension would provide sufficient opportunity to

develop and publish a proposed rule, take public comment, and develop

and publish a final rule.

EPA drafted a proposed rulemaking concerning the adoption of a more

[[Page 56495]]

flexible approach for ensuring refrigerant purity. However, several

events beyond the agency's control delayed the EPA's ability to release

this proposal prior to February 29, 1996. Therefore, at the urging of

industry representatives, EPA extended the sunset date for the purity

requirements to avoid a lapse of the reclamation requirements.

Representatives of the air-conditioning and refrigeration industry

expressed concern that any lapse in refrigerant purity requirements

could result in a number of problems, including sloppy handling of

refrigerant and dumping of contaminated refrigerant on the market.

These problems would result in significant damage to equipment, release

of refrigerant, and aggravated refrigerant shortages.

Currently, the reclamation requirement encourages careful handling

of refrigerant, because refrigerant that is irretrievably contaminated

(for instance through mixture with other refrigerants) will not be

accepted by any reclaimer, rendering it worthless. If this check is

removed, sloppy handling may become widespread. This would not only

lead to damage to equipment, but to the permanent loss of part of the

stock of pure refrigerant through refrigerant mixture. Even in the best

case in which the mixed refrigerant was properly disposed of, the

limited supply of refrigerant would thereby be further reduced,

necessitating more retrofit or replacement of existing equipment.

Unfortunately, it is likely that the mixed refrigerant would often be

used in air-conditioning and refrigeration equipment or vented rather

than disposed of properly.

The possibility of widespread dumping of refrigerant on the market

has been raised by reports that contractors and ``recyclers'' are

stockpiling used refrigerant. In some cases, dumping dirty refrigerant

on the market might be attractive simply because it enables the seller

of refrigerant to avoid the costs of reclamation; for others, it might

be attractive because the refrigerant is unreclaimable and therefore

worthless if analyzed or sent to a reclaimer. In either situation, such

dumping would lead to widespread equipment damage and potential

releases of refrigerant. In addition, since domestic CFC production

ceased December 31, 1995, protecting the purity of the existing stock

of CFC refrigerants is essential.

IV. Today's Action

In response to these concerns, EPA is extending the effectiveness

of the current reclamation requirements until the Agency can adopt

replacement requirements. It was never EPA's intent to leave air-

conditioning and refrigeration equipment and refrigerant supplies

unprotected by a purity standard, but only to replace the existing

standard with a more flexible standard when that was developed. As

discussed above, EPA is currently undertaking rulemaking to adopt a

more flexible standard.

V. Summary of Supporting Analysis

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 action to amend 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'') 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 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 rulemaking 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 rule merely

extends the current reclamation requirements during consideration of a

more flexible approach that may result in 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.

C. Paperwork Reduction Act

There is no additional information collection requirements

associated with this rulemaking EPA has determined that the Paperwork

Reduction Act does not apply. The initial section 608 final rulemaking

did address all recordkeeping associated with the refrigerant purity

provisions. An Information Collection Request (ICR) document was

prepared by EPA and approved by the Office of Management and

Budget(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

This ICR is contained in the public docket A-92-01.

D. Regulatory Flexibility Analysis

EPA has determined that is not necessary to prepare a regulatory

flexibility analysis in connection with this proposed rule because it

continues existing requirements. Any impact this proposed rule will

have on small entities will be to provide relief from regulatory

burdens.

[[Page 56496]]

List of Subjects in 40 CFR Part 82

Enviromental protection, Aerosols, air pollution control,

Chemicals, Chlorofluorocarbons, Hydrochlorofluorocarbons, Labeling,

Stratospheric ozone layer.

Dated: October 28, 1996.

Carol M. Browner,

Administrator.

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

is proposed to be amended 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 82.154 is amended by revising paragraphs (g) and (h) to

read as follows:

Sec. 82.154 Prohibitions.

* * * * *

(g) No person may sell or offer for sale for use as a refrigerant

any class I or class II substance consisting wholly or in part of used

refrigerant unless:

(1) The class I or class II substance has been reclaimed as defined

at Sec. 82.152;

(2) The class I or class II substance was used only in an MVAC or

MVAC-like appliance and is to be used only in an MVAC or MVAC-like

appliance; or

(3) The class I or class II substance is contained in an appliance

that is sold or offered for sale together with the class I or class II

substance.

(h) No person may sell or offer for sale for use as a refrigerant

any class I or class II substance consisting wholly or in part of used

refrigerant unless:

(1) The class I or class II substance has been reclaimed by a

person who has been certified as a reclaimer pursuant to Sec. 82.164;

(2) The class I or class II substance was used only in an MVAC or

MVAC-like appliance and is to be used only in an MVAC or MVAC-like

appliance; or

(3) The class I or class II substance is contained in an appliance

that is sold or offered for sale together with the class I or class II

substance.

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[FR Doc. 96-28095 Filed 10-31-96; 8:45 am]

BILLING CODE 6560-50-P