83 FR 49332 - Protection of Stratospheric Ozone: Revisions to the Refrigerant Management Program's Extension to Substitutes
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 83, Issue 190 (October 1, 2018)
Federal Register Volume 83, Issue 190 (October 1, 2018)
| Page Range | 49332-49344 | |
| FR Document | 2018-21084 |
[Federal Register Volume 83, Number 190 (Monday, October 1, 2018)] [Proposed Rules] [Pages 49332-49344] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-21084] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 82 [EPA-HQ-OAR-2017-0629; FRL-9984-55-OAR] RIN 2060-AT81 Protection of Stratospheric Ozone: Revisions to the Refrigerant Management Program's Extension to Substitutes AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: The Clean Air Act (CAA) prohibits knowingly venting or releasing ozone-depleting and substitute refrigerants in the course of maintaining, servicing, repairing, or disposing of appliances or industrial process refrigeration. On November 18, 2016, EPA finalized a rule that updated the existing refrigerant management requirements and extended requirements that previously applied only to refrigerants containing an ozone-depleting substance (ODS) to substitute refrigerants such as hydrofluorocarbons that are subject to the venting prohibition (i.e., those that have not been exempted from that prohibition). The Agency is revisiting the aspects of the 2016 Rule that apply to equipment containing such substitute refrigerants. This action proposes changes to the legal interpretation that supported that rule and amendments to the regulations based on the revised interpretation. More specifically, in connection with the proposed changes to the legal interpretation, EPA is proposing to revise the appliance maintenance and leak repair provisions so they apply only to equipment using refrigerant containing a class I or class II substance. Based on this proposed limitation of the leak repair requirements, this document further proposes to revise the list of practices that must be followed in order for refrigerant releases to be considered de minimis to clarify that the reference to following leak repair practices only applies to equipment that contains ODS refrigerant. EPA is also taking comment on whether, in connection with the proposed changes to the legal interpretation, the 2016 Rule's extension of subpart F refrigerant management requirements to such substitute refrigerants should be rescinded in full. Additionally, EPA is proposing to extend by six to twelve months the January 1, 2019 compliance date for when appliances containing only substitute refrigerants subject to the venting prohibition must comply with the appliance maintenance and leak repair provisions. DATES: Written comments must be received by November 15, 2018. EPA will hold a public hearing on or before October 16, 2018. The hearing will be held in Washington, DC. More details concerning the hearing can be found at www.epa.gov/section608. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ- OAR-2017-0629, at www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (e.g., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit www.epa.gov/dockets/commenting-epa-dockets. FOR FURTHER INFORMATION CONTACT: Jeremy Arling by regular mail: U.S. Environmental Protection Agency, Stratospheric Protection Division (6205T), 1200 Pennsylvania Avenue NW, Washington, DC 20460; by telephone: (202) 343-9055; or by email: [email protected]. I. General Information A. What is the National Recycling and Emission Reduction Program? Section 608 of the CAA, titled ``National Recycling and Emissions Reduction Program,'' has three main components. First, section 608(a) requires EPA to establish standards and requirements regarding the use and disposal of class I and class II substances.\1\ The second component, section 608(b), requires that the regulations issued pursuant to subsection (a) contain requirements for the safe disposal of class I and class II substances. The third component, section 608(c), prohibits the knowing venting, release, or disposal of ODS refrigerants \2\ and their substitutes \3\ in the course of maintaining, servicing, repairing, or disposing of appliances or industrial process refrigeration (IPR). This third component is also referred to as the ``venting prohibition'' in this proposal. Section 608(c)(1) includes an exemption from this prohibition for ``[d]e minimis releases associated with good faith attempts to recapture and recycle or safely dispose'' of class I or class II substances, and section 608(c)(2) extends 608(c)(1) to substitute refrigerants. Section 608(c)(2) also includes a provision that allows the Administrator to exempt a substitute refrigerant from the venting prohibition if he or she determines that such venting, release, or disposal of a substitute refrigerant ``does not pose a threat to the environment.'' \4\ --------------------------------------------------------------------------- \1\ A class I or class II substance refers to an ozone-depleting substance listed at 40 CFR part 82 subpart A, appendix A or appendix B, respectively. This proposal refers to class I and class II substances collectively as ozone-depleting substances, or ODS. \2\ The term ``ODS refrigerant'' as used in this proposal refers to any refrigerant or refrigerant blend in which one or more of the components is a class I or class II substance. \3\ The term ``substitute'' is defined at 40 CFR 82.152. In the context of the subpart F regulations, any refrigerant or refrigerant blend in which none of the components is a class I or class II substance is treated as a substitute, while any refrigerant or refrigerant blend in which one or more the components is a class I or class II substance is regulated as an ODS refrigerant. \4\ EPA is using the term ``non-exempt substitute'' in this document to refer to substitute refrigerants that have not been exempted from the venting prohibition under CAA section 608(c)(2) and 40 CFR 82.154(a) in the relevant end-use. Similarly, the term ``exempt substitute'' refers to a substitute refrigerant that has been exempted from the venting prohibition under section 608(c)(2) and Sec. 82.154(a) in the relevant end-use. A few exempt substitutes have been exempted from the venting prohibition in all end-uses. --------------------------------------------------------------------------- EPA first issued regulations under section 608 of the CAA on May 14, 1993 (58 FR 28660, ``1993 Rule''), to establish the national refrigerant management program for ODS refrigerants recovered during the service, repair, or disposal of air-conditioning and refrigeration appliances. These regulations were intended to substantially reduce the use and emissions of refrigerants that are ODS. [[Page 49333]] The 1993 Rule required that persons servicing air-conditioning and refrigeration equipment containing ODS refrigerants observe certain practices that reduce emissions. It established requirements for refrigerant recovery equipment, reclaimer certification, and technician certification, and also restricted the sale of ODS refrigerant so that only certified technicians could purchase it. In addition, the 1993 Rule required that ODS be removed from appliances prior to disposal, and that all air-conditioning and refrigeration equipment using an ODS be provided with a servicing aperture or process stub to facilitate refrigerant recovery. The 1993 Rule also established a requirement to repair leaking appliances containing more than 50 pounds of ODS refrigerant. The rule set an annual leak rate of 35 percent for commercial refrigeration appliances and IPR and 15 percent for comfort cooling appliances. If the applicable leak rate is exceeded, the appliance must be repaired within 30 days. Further, consistent with CAA section 608(c)(1), the 1993 Rule included a regulatory provision prohibiting the knowing venting or release of ODS refrigerant by any person maintaining, servicing, repairing, or disposing of an appliance. 58 FR 28714; 40 CFR 82.154(a) (1993). It also provided that such releases would be considered de minimis, and therefore not subject to the prohibition, if they occurred when certain regulatory requirements were followed. 40 CFR 82.154(a) (1993). EPA revised these regulations, which are found at 40 CFR part 82, subpart F (``subpart F''), through subsequent rulemakings published on August 19, 1994 (59 FR 42950), November 9, 1994 (59 FR 55912), August 8, 1995 (60 FR 40420), July 24, 2003 (68 FR 43786), March 12, 2004 (69 FR 11946), January 11, 2005 (70 FR 1972), April 13, 2005 (70 FR 19273), May 23, 2014 (79 FR 29682), April 10, 2015 (80 FR 19453), and November 18, 2016 (81 FR 82272). In the April 2005 rulemaking, EPA revised the regulatory venting prohibition in 40 CFR 82.154, so that it also applied to non-exempt substitute refrigerants, and included such substitutes in the regulatory provision implementing the de minimis exemption, so that it exempted ``de minimis releases associated with good faith attempts to recycle or recover refrigerants or non-exempt substitutes'' from the prohibition. 70 FR 19278. However, in contrast to how these regulations applied to ODS refrigerants, they did not provide that releases of non-exempt substitute refrigerants would be considered de minimis if certain regulatory requirements were followed. Additionally, the 2004 and 2005 rules exempted certain substitute refrigerants from the venting prohibition either in specific end uses or in all end uses. See 69 FR 11953-11954; 70 FR 19278; 40 CFR 82.154(a) (June 2005). This regulatory list of exemptions from the venting prohibition in 40 CFR 82.154(a) has been periodically updated since 2005. EPA also issued proposed rules to revise the regulations in subpart F on June 11, 1998 (63 FR 32044), elements of which were not finalized, and on December 15, 2010 (75 FR 78558), for which no elements were finalized. A more detailed history of these regulatory updates can be found at 81 FR 82275. Prior to the 2016 Rule, EPA regulations did not address how regulated entities could avail themselves of the de minimis exemption for non-exempt substitutes. See, e.g., 81 FR 82283-82285. On November 18, 2016, EPA published a rule updating the refrigerant management requirements and extending requirements that previously applied only to refrigerants containing an ODS to non-exempt substitute refrigerants, such as hydrofluorocarbons (HFCs) and hydrofluorolefins (HFOs) (81 FR 82272) (``2016 Rule''). The 2016 Rule also made a number of revisions to improve the efficacy of the refrigerant management program as a whole, such as revisions of regulatory provisions for increased clarity and readability, and removal of provisions that had become obsolete. B. Does this action apply to me? Categories and entities potentially affected by this action include those who own, operate, maintain, service, repair, recycle, reclaim, or dispose of refrigeration and air-conditioning appliances and refrigerants, as well as entities that manufacture or sell refrigerants, products, and services for the refrigeration and air- conditioning industry. Potentially affected entities include, but are not limited to, the following: Table 1--Potentially Affected Entities ---------------------------------------------------------------------------------------------------------------- North American Industry Category Classification System (NAICS) Examples of regulated entities code ---------------------------------------------------------------------------------------------------------------- Industrial Process Refrigeration (IPR) 111, 11251, 11511, 21111, Owners or operators of refrigeration 2211, 2212, 2213, 311, 3121, equipment used in agriculture and crop 3221, 3222, 32311, 32411, production, oil and gas extraction, ice 3251, 32512, 3252, 3253, rinks, and the manufacture of frozen 32541, 3256, 3259, 3261, food, dairy products, food and 3262, 3324, 3328, 33324, beverages, ice, petrochemicals, 33341, 33361, 3341, 3344, chemicals, machinery, medical 3345, 3346, 3364, 33911, equipment, plastics, paper, and 339999. electronics. Commercial Refrigeration.............. 42374, 42393, 42399, 4242, Owners or operators of refrigerated 4244, 42459, 42469, 42481, warehousing and storage facilities, 42493, 4451, 4452, 45291, supermarkets, grocery stores, warehouse 48422, 4885, 4931, 49312, clubs, supercenters, convenience 72231. stores, and refrigerated transport. Comfort Cooling....................... 45211, 45299, 453998, 512, Owners or operators of air-conditioning 522, 524, 531, 5417, 551, equipment used in the following: 561, 6111, 6112, 6113, 61151, hospitals, office buildings, colleges 622, 7121, 71394, 721, 722, and universities, metropolitan transit 813, 92. authorities, real estate rental & leased properties, lodging and food services, property management, schools, and public administration or other public institutions. Plumbing, Heating, and Air- 238220, 811111, 81131, 811412. Plumbing, heating, and air-conditioning Conditioning Contractors. contractors, and refrigerant recovery contractors, including automotive repair. Manufacturers and Distributors of 325120, 441310, 447110........ Automotive parts and accessories stores Small Cans of Refrigerant. and industrial gas manufacturers. Reclaimers............................ 325120, 423930, 424690, Industrial gas manufacturers, recyclable 562920, 562212. material merchant wholesalers, materials recovery facilities, solid waste landfills, and other chemical and allied products merchant wholesalers. [[Page 49334]] Disposers and Recyclers of Appliances. 423990, 562212, 562920........ Materials recovery facilities, solid waste landfills, and other miscellaneous durable goods merchant wholesalers. Refrigerant Wholesalers............... 325120, 42, 424690............ Industrial gas manufacturers, other chemical and allied products merchant wholesalers, wholesale trade. Certifying Organizations.............. 541380........................ Environmental test laboratories and services. ---------------------------------------------------------------------------------------------------------------- This list is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. To determine whether your facility, company, business, or organization could be affected by this action, you should carefully examine the regulations at 40 CFR part 82, subpart F and the proposed revisions below. If you have questions regarding the applicability of this action, if finalized, to a particular entity, consult the person listed in the FOR FURTHER INFORMATION CONTACT section. C. What action is the agency taking? Subpart F contains a comprehensive set of specific refrigerant management requirements, including provisions that: Restrict the servicing of appliances and the sale of refrigerant to certified technicians; specify the proper evacuation levels before opening an appliance; require the use of certified refrigerant recovery and/or recycling equipment; require the maintenance and repair of appliances that meet size and leak rate thresholds; require that refrigerant be removed from appliances prior to disposal; require that appliances have a servicing aperture or process stub to facilitate refrigerant recovery; require that refrigerant reclaimers be certified to reclaim and sell used refrigerant; and establish standards for technician certification programs, recovery equipment, and quality of reclaimed refrigerant (40 CFR part 82 subpart F). Based on feedback from some in the regulated community, the Agency reviewed the 2016 Rule, focusing in particular on whether the Agency had the statutory authority to extend the full set of subpart F refrigerant management regulations to non-exempt substitute refrigerants, such as HFCs and HFOs. Based on that review, Administrator Pruitt signed a letter on August 10, 2017 stating that EPA is ``planning to issue a proposed rule to revisit aspects of the 2016 Rule's extension of the 40 CFR part 82 subpart F refrigerant management requirements to non-exempt substitutes.'' \5\ Consistent with the Administrator's letter, the Agency is now proposing to withdraw the recent extension of the appliance maintenance and leak repair provisions at 40 CFR 82.157 \6\ to appliances using only non- exempt substitute refrigerants.\7\ This proposal would relieve businesses from having to conduct leak inspections, repair leaks, and keep records for appliances containing 50 or more pounds of non-exempt substitute refrigerant. EPA is also taking comment on whether to withdraw the extension of the full set of subpart F provisions to non- exempt substitute refrigerants. EPA is not proposing any changes to the refrigerant management program as it relates to requirements for ozone- depleting refrigerants or appliances containing or using any amount of ODS. Accordingly, none of the proposed changes would affect requirements for ODS under CAA section 608. --------------------------------------------------------------------------- \5\ Letter from EPA to National Environmental Development Association's Clean Air Project and the Air Permitting Forum (Aug. 10, 2017), available at www.epa.gov/sites/production/files/2017-08/documents/608_update_letter.pdf and in the docket to this rule. \6\ For ease of reference, in this document EPA uses the terms ``leak repair provisions'' or ``leak repair requirements'' to refer to the appliance maintenance and leak repair provisions at 40 CFR 82.157. \7\ Ozone-depleting refrigerants and appliances that contain or use any amount of class I or class II ODS would continue to be subject to the ODS requirements. --------------------------------------------------------------------------- D. What is the agency's authority for taking this action? These proposed revisions to the regulations found at 40 CFR part 82, subpart F are based on proposed changes to EPA's interpretation of its authority under CAA section 608. In particular, in the 2016 Rule EPA had for the first time adopted an interpretation of CAA section 608 to support the extension of the full set of subpart F refrigerant management requirements to non-exempt substitute refrigerants. Under the interpretation proposed in this document, EPA now proposes to conclude that its authority to regulate substitutes under section 608 does not extend as far as its authority to regulate ODS. Specifically, EPA would conclude, as a legal matter, that the extension of the full set (that is, the entirety) of subpart F requirements to non-exempt substitute refrigerants exceeds EPA's statutory authority. In connection with the proposed changes in its legal interpretation, EPA is proposing to rescind the 2016 Rule's extension of the leak repair requirements to non-exempt substitutes, while retaining the extension of the remaining subpart F requirements. In light of the questions regarding the scope of EPA's authority to regulate non-exempt substitute refrigerants under section 608, EPA is also taking comment on whether it would be appropriate and warranted for the agency to instead rescind the entire extension of the subpart F requirements to non-exempt substitutes at this time. EPA is not, however, proposing to change the interpretation that EPA has authority to interpret the venting prohibition and the de minimis exemption in section 608(c) and to explain how that prohibition and that exemption apply to non-exempt substitute refrigerants.\8\ --------------------------------------------------------------------------- \8\ Section 608(c) does not expressly provide that EPA may write regulations under that section. Section 301, however, states that the ``Administrator is authorized to prescribe such regulations as are necessary to carry out his functions under [the Clean Air Act].'' --------------------------------------------------------------------------- EPA's authority for this proposed action is further supported by the Agency's authority to revisit and revise existing regulations and legal interpretations. More detail on EPA's authority for this action is provided in subsequent sections of this document, including in sections II.D and II.E below, discussing EPA's authority under CAA sections 608(c) and 608(a), respectively. E. What are the incremental costs and benefits of this action? By rescinding the extension of the leak repair provisions to substitutes, the proposed rule would reduce the burden associated with the 2016 Rule by $39 million per year. EPA also estimates this rule would increase the need to purchase non-exempt substitute refrigerant for leaking appliances, at an overall cost of approximately $15 million per year. Thus, incremental compliance savings and increased refrigerant costs combined are estimated to be a reduction of at least $24 million [[Page 49335]] per year. EPA estimates that this proposed action would result in foregone annual greenhouse gas (GHG) emissions reductions benefits of at least 3 million metric tons of carbon dioxide equivalent (MMTCO2 e). This proposed rule to rescind the extension of the leak repair provisions to substitutes would not directly affect the stratospheric ozone layer. EPA is also taking comment whether the agency should rescind the entire extension of the subpart F requirements to non-exempt substitutes and any additional cost savings associated with that action. This would reduce the burden associated with the 2016 Rule by at least an additional $4 million per year (for a total annual burden reduction of at least $43 million per year). EPA estimates withdrawing subpart F regulations of non-exempt substitute refrigerants to result in additional foregone annual GHG emissions reductions of 0.7 MMTCO2 e associated with the use of self-sealing valves for a total foregone emissions reduction of at least 3.6 MMTCO2 e. Table 2 presents a summary of the annual costs and benefits associated with two scenarios including rescinding the extension of the leak repair provisions to non-exempt substitutes and rescinding the extension of all Subpart F provisions to non-exempt substitutes. Table 2--Summary of Annual Costs and Benefits With 7% and 3% Discount Rates [2014$] ---------------------------------------------------------------------------------------------------------------- Rescinding extension of leak Rescinding extension of all Subpart F repair provisions to non-exempt provisions to non-exempt substitutes substitutes ------------------------------------------------ ---------------------------------- 7% Discount 3% Discount 7% Discount 3% Discount rate rate rate rate ---------------------------------------------------------------------------------------------------------------- Burden Reduction............. $38,958,000.... $35,264,000.... $43,014,000.... $39,320,000 Refrigerant Replacement Cost. -$14,874,000... -$14,874,000... -$14,874,000... -$14,874,000 Forgone Emissions Reductions. 2.946 MMTCO2e.. 2.946 MMTCO2e.. 3.603 MMTCO2e.. 3.603 MMTCO2e Annual Cost Savings.......... $24,084,000.... $20,390,000.... $28,140,000.... $24,446,000 ---------------------------------------------------------------------------------------------------------------- Additional information on these analyses can be found in Section III of this document and the technical support document in the docket. II. The Proposed Rule A. History of the Extension of the Subpart F Requirements to Non-Exempt Substitutes On November 18, 2016, EPA published a rule updating existing refrigerant management requirements and extending the full set of the subpart F refrigerant management requirements, which prior to that rule applied only to ODS refrigerants,\9\ to non-exempt substitute refrigerants, such as HFCs and HFOs (81 FR 82272). As such, as part of the 2016 Rule, EPA extended the ``appliance maintenance and leak repair'' provisions, currently codified at 40 CFR 82.157, to appliances that contain 50 or more pounds of non-exempt substitute refrigerant. Included in the leak repair provisions are requirements to conduct leak rate calculations when refrigerant is added to an appliance, repair an appliance that leaks above the threshold leak rate applicable to that type of appliance, conduct verification tests on repairs, conduct periodic leak inspections on appliances that have exceeded the threshold leak rate, report to EPA on chronically leaking appliances, retrofit or retire appliances that are not repaired, and maintain related documentation to verify compliance. Although the 2016 Rule took effect on January 1, 2017, it included later compliance dates for some of the revised regulations, including the leak repair provisions. Under the 2016 Rule, owners and operators of appliances that contain 50 or more pounds of refrigerant must comply with these revised appliance maintenance and leak repair provisions beginning January 1, 2019. --------------------------------------------------------------------------- \9\ The only subpart F requirements that applied to substitute refrigerants prior to the 2016 Rule were the venting prohibition and certain exemptions from that, as set forth in Sec. 82.154(a). --------------------------------------------------------------------------- Two industry coalitions, National Environmental Development Association's Clean Air Project (NEDA/CAP) and the Air Permitting Forum (APF), filed petitions for judicial review of the 2016 Rule in the U.S. Court of Appeals for the District of Columbia Circuit, and the cases have been consolidated. See NEDA/CAP v. EPA, No. 17-1016 (D.C. Cir. filed January 17, 2017); APF v. EPA, No. 17-1017 (D.C. Cir. filed January 17, 2017). The Chemours Company, Honeywell International Inc., the Natural Resources Defense Council, and the Alliance for Responsible Atmospheric Policy are participating as intervenor-respondents in that litigation, in support of the 2016 Rule. In addition, APF has filed a petition with EPA for administrative reconsideration of the 2016 Rule. The petition for reconsideration is available in the docket for this action and raises several issues regarding changes made in the 2016 Rule, including EPA's statutory authority for its decision in the 2016 Rule to expand the scope of the refrigerant management requirements-- including, but not limited to, leak repair requirements--to cover non- exempt substitute refrigerants. Honeywell International Inc. submitted a document styled as a response to APF's petition for reconsideration, which is also available in the docket for this action. B. Legal Background The discussion of EPA's statutory authority to extend refrigerant management requirements to non-exempt substitute refrigerants in the 2016 Rule focused primarily on CAA section 608, especially on sections 608(c) and 608(a). See generally 81 FR 82284-82288. Section 608(a) requires EPA to establish standards and requirements regarding use and disposal of class I and class II substances. With regard to refrigerants, EPA is to promulgate regulations establishing standards and requirements for the use and disposal of class I and class II substances during the service, repair, or disposal of air- conditioning and refrigeration appliances or IPR. Regulations under section 608(a) are to include requirements to reduce the use and emission of ODS to the lowest achievable level, and to maximize the recapture and recycling of such substances. Section 608(a) further provides that ``[s]uch regulations may include requirements to use alternative substances (including substances which are not class I or class II substances) or to minimize use of class I or class II substances, or to promote the use of safe [[Page 49336]] alternatives pursuant to section [612] or any combination of the foregoing.'' Section 608(c) establishes a self-effectuating prohibition, commonly called the ``venting prohibition.'' \10\ Section 608(c)(1), effective July 1, 1992, makes it unlawful for any person in the course of maintaining, servicing, repairing, or disposing of an appliance or IPR to knowingly vent, release, or dispose of any ODS used as a refrigerant in such equipment in a manner that permits that substance to enter the environment. Section 608(c)(1) also includes an exemption from this prohibition for ``[d]e minimis releases associated with good faith attempts to recapture and recycle or safely dispose'' of such a substance. Section 608(c)(2) states that, effective November 15, 1995, ``paragraph (1) shall also apply to the venting, release, or disposal of any substitute substance for a class I or class II substance by any person maintaining, servicing, repairing, or disposing of an appliance or [IPR] which contains and uses as a refrigerant any such substance, unless the Administrator determines that venting, releasing, or disposing of such substance does not pose a threat to the environment.'' EPA interprets section 608(c)(2)'s extension of section 608(c)(1) to substitute refrigerants to extend both the prohibition on venting and the de minimis exemption to non-exempt substitute refrigerants. This is a long-held position and EPA is not proposing to revisit it. See, e.g., 69 FR 11949 (March 12, 2004); 70 FR 19274-19275 (April 13, 2005). --------------------------------------------------------------------------- \10\ In this context, EPA uses the term ``self-effectuating'' to mean that the statutory prohibition on venting is itself legally binding even in the absence of implementing regulations. --------------------------------------------------------------------------- In the 2016 Rule, EPA interpreted section 608 of the CAA as being ambiguous with regard to EPA's authority to establish refrigerant management regulations for non-exempt substitute refrigerants because Congress had not precisely spoken to this issue. Accordingly, EPA took the view that it had the discretion under Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984), to interpret section 608 as providing EPA with authority to extend all aspects of its refrigerant management regulations under section 608 to non-exempt substitute refrigerants, including those regulations that had previously only applied to ODS refrigerants. See 81 FR 82283. The 2016 Rule explained that EPA had established the subpart F standards for the proper handling of ODS refrigerants during service, repair, or disposal of an appliance to maximize the recovery and/or recycling of such substances and reduce the use and emission of such substances primarily under section 608(a). Section 608(a) expressly requires EPA to issue regulations that apply to class I and class II substances, but does not expressly address whether EPA could establish the same refrigerant management practices for substitute substances. On the other hand, section 608(c)(2) explicitly mentions substitute refrigerants and directly applies the provisions for ODS refrigerants in section 608(c)(1) to them. In the 2016 Rule EPA grounded its authority for the extension of refrigerant requirements to non-exempt substitute refrigerants largely on section 608(c), which EPA interpreted to provide it authority to promulgate regulations that interpret, explain, and enforce the venting prohibition and the de minimis exemption as they apply to non-exempt substitute refrigerants. See 81 FR 82283-82284. In reaching this interpretation, EPA relied in part on a policy rationale that by establishing a comprehensive and consistent framework that applies to both ODS and non-exempt substitute refrigerants, the 2016 Rule would provide clarity to the regulated community concerning the measures that should be taken to comply with the venting prohibition for non-exempt substitutes and would thus reduce confusion and enhance compliance for both ODS and non-exempt substitutes. EPA further explained its view in the 2016 Rule that the extension of requirements under section 608 to non-exempt substitutes was also supported by section 608(a) because having a consistent regulatory framework for non-exempt substitutes and ODS is expected to reduce emissions of ODS refrigerants, as well as non-exempt substitutes. In addition, EPA located supplemental authority for the 2016 Rule in section 301(a), which provides authority for EPA to ``prescribe such regulations as are necessary to carry out [the EPA Administrator's] functions'' under the Act. Id. Further, EPA located supplemental authority to extend the recordkeeping and reporting requirements to non-exempt substitutes in section 114, which provides authority to the EPA Administrator to require recordkeeping and reporting in carrying out provisions of the CAA. Id. C. EPA's Authority To Revisit Existing Regulations and Interpretations EPA's ability to revisit existing regulations is well-grounded in the law. Specifically, EPA has inherent authority to reconsider, repeal, or revise past decisions to the extent permitted by law so long as the Agency provides a reasoned explanation. The CAA complements EPA's inherent authority to reconsider prior rulemakings by providing the Agency with broad authority to prescribe regulations as necessary in CAA section 301(a). The authority to reconsider prior decisions exists in part because EPA's interpretations of statutes it administers ``[are not] instantly carved in stone,'' but must be evaluated ``on a continuing basis.'' Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837, 863-64 (1984). This is true when, as is the case here, review is undertaken ``in response to . . . a change in administrations.'' National Cable & Telecommunications Ass'n v. Brand X internet Services, 545 U.S. 967, 981 (2005). Indeed, ``[a]gencies obviously have broad discretion to reconsider a regulation at any time.'' Clean Air Council v. Pruitt, 862 F.3d 1, 8-9 (D.C. Cir. 2017). Similarly, the fact that an agency has previously adopted one interpretation of a statute does not preclude it from later exercising its discretion to change its interpretation. National Cable & Telecommunications Ass'n, 545 U.S. at 981. In accordance with the Administrator's statement in the August 10, 2017 letter that EPA planned to issue a proposed rule to revisit aspects of the 2016 Rule's extension of the subpart F refrigerant management requirements to non-exempt substitutes, EPA has reassessed its decision to extend those requirements to non-exempt substitutes and the interpretations supporting that extension. The main considerations leading to the Agency's decision to reassess the 2016 Rule's extension of subpart F requirements to non-exempt substitute refrigerants are questions about whether extending the full set of subpart F requirements exceeded EPA's statutory authority under CAA section 608. The subpart F requirements, including the leak repair requirements, were originally established for ODS based primarily on authority under CAA section 608(a). Sections 608(a)(1) and (2) explicitly require EPA to regulate ODS but make no mention of substitutes. Section 608(c)(2) does expressly mention substitute refrigerants. However, that provision focuses on prohibiting knowing releases of substitute refrigerants in the course of maintenance, service, repair, and disposal activities and on providing an exemption for de minimis releases. Thus, the structure of section 608, specifically the inclusion of the term ``substitutes'' in section 608(c) but not section 608(a), contrasted with the express references to ODS (class I and class II substances) in both subsections, [[Page 49337]] suggests that EPA's authority to address substitutes under section 608 is more limited than its authority to address ODS. If Congress had intended to convey authority to EPA to promulgate the same, full set of refrigerant management requirements for substitutes as for ODS, it is reasonable to expect that Congress would have expressly included substitutes in section 608(a), as it did for section 608(c)--but it did not. On the other hand, section 608(a) requires the Agency to issue regulations that reduce the use and emission of ODS to the lowest achievable level and maximize the recapture and recycling of such substances. While section 608(a) contains discretionary language about what requirements those regulations may include, it does not contain any more specific mandates about how the required objectives should be achieved. To the extent that the extension of certain subpart F requirements to non-exempt substitutes is necessary to reduce the use and emission of ODS to the lowest achievable level or to maximize the recapture and recycling of such substances, EPA is proposing to conclude, as in the 2016 Rule, that such an extension would be authorized by section 608(a). In addition, EPA believes that section 608(c) is reasonably construed as providing the Agency discretionary authority to interpret and apply the venting prohibition and the de minimis exemption, as they are expressly incorporated as relating to substitutes under section 608(c)(2). However, EPA believes that its statutory authority under section 608, taking that authority as a whole, does not extend as far with respect to substitutes as it does with respect to ODS, and specifically believes that section 608 is ambiguous with respect to the extent to which, if at all, Congress authorized EPA to issue refrigerant management regulations for substitutes. In light of these considerations, the Agency has re-examined its authority for aspects of the 2016 Rule. In particular, EPA has carefully reviewed the specific requirements under subpart F that were extended to non-exempt substitute refrigerants and evaluated whether those extensions were within the scope of EPA's statutory authority under sections 608(a) and 608(c). While EPA believes the scope of its authority for substitutes under section 608 is narrower than that for ODS, EPA maintains that section 608 is ambiguous with respect to the extent of its authority to apply refrigerant management requirements to non-exempt substitute refrigerants. EPA is proposing to change some of the interpretations that supported the 2016 Rule. Specifically, EPA is proposing to conclude that the extension of the leak repair requirements in Sec. 82.157 to non-exempt substitute refrigerants exceeds EPA's legal authority and furthermore is not necessary to fulfill the purposes of section 608(a). EPA proposes to conclude that these changes in interpretations are appropriate interpretations of sections 608(a) and (c) in light of the statutory text, context, and EPA's historical views. With regard to section 608(a), EPA is also taking comment on an alternative legal interpretation under which the agency would not rely on section 608(a) for any extension of the refrigerant management regulations to substitute refrigerants. In light of EPA's proposed legal interpretations, EPA's proposal for amending the 2016 Rule is to rescind the extension of the leak repair requirements to non-exempt substitutes, while retaining the extension of the remaining subpart F requirements. EPA is also requesting comment on whether the agency should rescind the entire extension of the subpart F requirements to non-exempt substitutes. These points, and EPA's proposed legal interpretations, are discussed further below in the context of specific authority under sections 608(c) and (a), respectively. D. Authority Under CAA Sec. 608(c) To Extend Refrigerant Management Provisions to Non-Exempt Substitute Refrigerants EPA is proposing to change aspects of the interpretation of CAA section 608(c) that it adopted in the 2016 Rule. Under the interpretation proposed in this action, the Agency exceeded its statutory authority under section 608(c) in the 2016 Rule by extending the leak repair (Sec. 82.157) requirements to appliances that use only substitute refrigerants. As in prior actions under section 608, EPA continues to interpret section 608(c) to provide it some authority to interpret, explain, and enforce the venting prohibition and the de minimis exemption, as these are both provisions in a statutory regime that EPA is entrusted to administer. However, EPA also recognizes that sections 608(a) and 608(c) differ from one another in some key respects, including the fact that 608(a)(1) and (2) expressly require EPA to issue regulations for class I and class II substances, but include no such requirement for (or, indeed, any mention of) substitutes.\11\ In contrast, 608(c) does explicitly apply to substitute refrigerants, but that subsection leaves EPA discretion as to whether to promulgate regulations implementing its provisions. In light of these differences in wording between 608(a) and 608(c), EPA is proposing to conclude that the 2016 Rule exceeded the agency's authority under section 608 by extending the full set of the subpart F requirements to substitutes. --------------------------------------------------------------------------- \11\ Section 608(a)(3) does provide that the regulations issued under section 608(a) ``may include requirements to use alternative substances (including substances which are not class I or class II substances), . . . or to promote the use of safe alternatives pursuant to section [612].'' (In implementing Title VI, EPA has at times used the terms ``alternative'' and ``substitute'' interchangeably. See, e.g., 81 FR 86779, n.1; 81 FR 82276, 82291.) EPA is not relying upon these provisions in 608(a)(3) in this document, as the proposed regulatory changes do not relate to requirements to use substitutes or promote their use pursuant to section 612. Furthermore, EPA did not rely on these authorities in 608(a)(3) in extending the refrigerant management requirements to substitute refrigerants in the 2016 Rule, and is not relying on them in addressing the underlying questions of statutory interpretation at issue here. --------------------------------------------------------------------------- Specifically, EPA believes that the extension of the leak repair requirements to non-exempt substitute refrigerants exceeded its authority. To justify the extension of the leak repair requirements to non-exempt substitute refrigerants in the 2016 Rule, EPA reversed its longstanding position that ``topping off'' leaking appliances was not venting or a knowing release of refrigerant in the course of maintaining, servicing, repairing, or disposing of an appliance within the meaning of section 608(c). Prior to the 2016 Rule, EPA's position had been that refrigerant released during the use of an appliance is not subject to the venting prohibition. When establishing the original leak repair provisions, EPA in 1993 stated that: [T]he venting prohibition itself, which applies to the maintenance, service, repair, and disposal of equipment, does not prohibit `topping off' systems, which leads to emissions of refrigerant during the use of equipment. The provision on knowing releases does, however, include the situation in which a technician is practically certain that his or her conduct will cause a release of refrigerant during the maintenance, service, repair, or disposal of equipment. Knowing releases also include situations in which a technician closes his or her eyes to obvious facts or fails to investigate them when aware of facts that demand investigation. [58 FR 28672.] In the 2016 Rule, EPA changed the Agency's interpretation of the venting prohibition as part of the rationale that supported applying the leak repair requirements, originally issued under CAA section 608(a), to non-exempt substitute refrigerants. EPA stated in the 2016 Rule that it: [[Page 49338]] concludes that its statements in the 1993 Rule presented an overly narrow interpretation of the statutory venting prohibition. Consistent with the direction articulated in the proposed 2010 Leak Repair Rule, EPA is adopting a broader interpretation. When refrigerant must be added to an existing appliance, other than when originally charging the system or for a seasonal variance, the owner or operator necessarily knows that the system has leaks. At that point the owner or operator is required to calculate the leak rate. If the leaks exceed the applicable leak rate for that particular type of appliance, the owner or operator will know that absent repairs, subsequent additions of refrigerant will be released in a manner that will permit the refrigerant to enter the environment. Therefore, EPA interprets section 608(c) such that if a person adds refrigerant to an appliance that he or she knows is leaking, he or she also violates the venting prohibition unless he or she has complied with the applicable practices referenced in Sec. 82.154(a)(2), as revised, including the leak repair requirements, as applicable. [81 FR 82285.] EPA is proposing to conclude that this 2016 interpretation exceeds the scope of the Agency's authority under section 608(c)(2). The agency is therefore proposing to return to the interpretation used prior to the 2016 Rule.\12\ First, the 2016 interpretation is based on a strained reading of section 608(c)(2) because the refrigerant releases from such leaks typically occur during the normal operation of the appliance, rather than ``in the course of maintaining, servicing, repairing, or disposing of '' an appliance. The operational leaks that trigger the leak repair provisions may take the form of a slow leak that results in the need to add refrigerant and that occurs in the weeks or months prior to the servicing event. Leaks may also result from an unintended catastrophic failure, which leads to a subsequent service event to recharge the appliance. While section 608(c)(2) applies to the release of substitute refrigerants in ``the course of maintaining, servicing, repairing, or disposing of an appliance,'' neither of those types of leaks typically occur in the course of maintaining, servicing, repairing, or disposing of an appliance. Moreover, EPA has always understood that few appliances are leak-free, which further supports the notion that leaks frequently occur during normal operation of an appliance.\13\ Further, EPA has recognized that refrigeration and air-conditioning equipment often does leak, and that ``[t]his is particularly likely for larger and more complicated appliances like those subject to the subpart F leak repair provisions.'' (81 FR 82313). Therefore, the leak repair provisions apply to activities that are too distinct from the activities identified in section 608(c) to provide EPA with regulatory authority to extend the leak repair regulations to non-exempt substitute refrigerants. --------------------------------------------------------------------------- \12\ The 2010 leak repair proposal (75 FR 78558) was not finalized. As noted in the 2016 Rule (81 FR 82275), EPA withdrew the 2010 proposal in the 2016 rulemaking and re-proposed elements of the 2010 proposal in the notice of proposed rulemaking (80 FR 69461) for the 2016 Rule. \13\ Recognizing that appliances can leak during their normal operation, 40 CFR 82.157(g) requires periodic leak inspections of appliances with 50 or more pounds of refrigerant that had been repaired after leaking above the applicable threshold rate. Automatic leak detection equipment is also allowed in lieu of inspections for such appliances, or portions of such appliances. This proposal, if finalized, would rescind this requirement for appliances containing only non-exempt substitute refrigerant. --------------------------------------------------------------------------- EPA notes that under the proposed revisions to its interpretation discussed in this document, the venting prohibition under section 608(c) would continue to apply to actions taken in the course of maintaining, servicing, repairing, or disposing of appliances containing non-exempt substitute refrigerant, including those containing 50 or more pounds of such refrigerant. For example, knowing release from cutting refrigerant lines when disposing of an appliance is prohibited. Similarly, opening an appliance to repair a component without first isolating it and recovering the refrigerant would typically lead to a knowing release of refrigerant to the environment. It is also possible that some ``topping off'' may occur in an appliance with a leak that is so visible, audible, or frequent that adding refrigerant to the appliance creates the practical certainty that the refrigerant will be released contemporaneously with the servicing event and therefore may constitute a knowing release. For example, hearing hissing or noticing a ruptured line while continuing to add refrigerant to an appliance would constitute a knowing release. However, EPA does not believe this occurs in a substantial number of situations, and thus does not believe that the possibility of such an event justifies a blanket interpretation that ``topping off'' an appliance that has leaked, absent adherence to the leak repair requirements at Sec. 82.157, is necessarily and per se a violation of 608(c). EPA is proposing to remove the extension of the leak repair requirements to non-exempt substitute refrigerants as exceeding its authority, but to retain the other provisions of subpart F as appropriate measures to implement, explain, and enforce the venting prohibition for non-exempt substitute refrigerants. In contrast to the leak repair requirements, the other provisions of subpart F that EPA extended to non-exempt substitute refrigerants in the 2016 Rule relate directly to emissions that necessarily occur in the course of maintaining, servicing, repairing, or disposing of an appliance. Accordingly, those provisions directly address the potential for knowing releases of non-exempt substitute refrigerants that would be within the scope of section 608(c)(2). Moreover, prior to the 2016 Rule, EPA had long recognized connections between other subpart F requirements and the potential for releases to occur during appliance maintenance, service, repair or disposal, and continues to do so. For example, failure to properly evacuate an appliance (Sec. 82.156 and Sec. 82.158) before opening it for servicing will create the practical certainty that the refrigerant in the appliance will be released during the servicing event. EPA required that recovery and/or recycling equipment be tested and certified by an EPA-approved laboratory or organization ``[i]n order to ensure that recycling and recovery equipment on the market is capable of limiting emissions.'' (58 FR 28682). Similarly, disposing of the appliance without removing the refrigerant (Sec. 82.155) will result in the release of any remaining refrigerant during disposal of the appliance. EPA acknowledged this when finalizing the safe disposal requirements in 1993, writing: ``The Agency wishes to clarify that the prohibition on venting refrigerant includes individuals who are preparing to dispose of a used appliance.'' (58 FR 28703). EPA established the reclamation requirement for used refrigerant to prevent equipment damage from dirty refrigerant and ensure a market for recovered refrigerants, both of which minimize knowingly venting or releasing of refrigerant during appliance maintenance, servicing, repair, and disposal. (58 FR 28678). With respect to the sales restriction and technician certification requirements, EPA stated that ``unrestricted sales will enable untrained or undertrained technicians to obtain access to refrigerants that are likely to be used improperly in connection with servicing activities that will result in the venting of refrigerants'' (58 FR 28698) and that ``[e]ducating technicians on how to contain and conserve refrigerant effectively, curtailing illegal venting into the atmosphere'' was one of the primary reasons many technicians commented [[Page 49339]] in support of the certification program. (58 FR 28691). Accordingly, as part of EPA's proposal, the agency would conclude that the 2016 Rule's extension of the other, non-leak-repair requirements under subpart F to non-exempt substitute refrigerants is within the scope of EPA's authority under CAA section 608(c)(2), because those other requirements implement that provision's venting prohibition. While EPA continues to believe that it has authority to implement, explain, and enforce the venting prohibition and the exemptions in 608(c) for non-exempt substitute refrigerants, as explained above, it is proposing to conclude that the extension of the full set of the subpart F requirements to appliances using only substitute refrigerant exceeded its legal authority under section 608(c). As explained above, it is proposing to rescind the extension of subpart F's leak repair requirements to appliances using only non-exempt substitute refrigerants. EPA is also seeking comments on whether the agency should instead withdraw the entire extension of subpart F requirements to non- exempt substitute refrigerants in the 2016 Rule given its proposed interpretation. Section 608(c) does not expressly require EPA to issue regulations, nor does it contain specific deadlines or requirements for any rules that EPA might promulgate under that authority. Accordingly, EPA has substantial discretion in issuing regulations under section 608(c) and the timing of any such regulations. Given that discretion, EPA could conclude that a full withdrawal of the extension of subpart F requirements to non-exempt substitute refrigerants is appropriate and warranted at this time. Such an approach could be reasonable in light of the questions as to EPA's legal authority for that extension. For example, if EPA were to conclude that interpreting section 608(c) to authorize the same full set of requirements as 608(a) for refrigerants renders 608(a) superfluous with respect to refrigerants \14\ and that this structural issue raises critical uncertainties as to the extent to which EPA should replicate 608(a) requirements under 608(c), EPA could decide that a full withdrawal of the extension is an appropriate use of its discretion under section 608(c). Such action would allow the Agency to consider and potentially develop options not discussed in this proposed rule. If EPA were to decide that a full withdrawal of the extension is prudent, the prohibitions under section 608(c) would continue to apply directly to any knowing release of non-exempt substitute refrigerant in the course of maintaining, servicing, repairing, or disposing of an appliance. --------------------------------------------------------------------------- \14\ While section 608(c) only addresses refrigerants, whether ODS or substitutes, section 608(a) is not limited to refrigerants. In fact, EPA has applied its authority under section 608(a) to establish or consider regulations for ODS in non-refrigerant applications. For example, in 1998, EPA issued a rule on halon management under the authority of section 608(a)(2). (63 FR 11084). Accordingly, when considering potential issues arising from interpretations of section 608(c) to authorize the same requirements as 608(a), it is appropriate to focus on refrigerants. --------------------------------------------------------------------------- For the reasons discussed above in this section, EPA is specifically requesting comment on whether to retain the non-leak repair requirements in the final rule or whether to rescind the entirety of the 2016 Rule's extension of the subpart F requirements to non-exempt substitutes. Included in the docket for this action is a version of the regulatory text in subpart F with red-line strikeout showing the types of revisions to subpart F that the Agency is considering making, should it decide to finalize a full withdrawal of the 2016 Rule's extension of the refrigerant management requirements to non-exempt substitutes. Additional information on the costs and benefits of rescinding that entire extension is found in Section III of this document and the technical support document in the docket. If EPA were to rescind the extension in full through this rulemaking, it would likely give subsequent consideration to whether some subset of the subpart F requirements, a different set of requirements, or some combination of the two, would be an appropriate means of implementing the venting prohibition for substitutes. Such consideration could result in a new proposal following final action on this current proposal. EPA requests comment on the proposed changes discussed above, including the proposed changes in interpretation of section 608(c). EPA also welcomes comment on whether section 608(c) provides authority to promulgate a set of leak repair provisions, or refrigerant management requirements generally, for non-exempt substitutes that may be different from the ones currently found in subpart F, to meet the purposes of that section while minimizing overlap with requirements authorized under section 608(a). Additionally, EPA requests comment on the practical considerations of implementing the venting prohibition for substitutes in a manner that is different from ODS. Lastly, EPA requests comment on whether stakeholders may have a reliance interest in either the leak repair provisions or the other subpart F provisions as they relate to substitutes under the 2016 Rule and how that interest would be affected by the proposed changes discussed above. E. Authority Under CAA Sec. 608(a) To Extend Refrigerant Management Provisions to Non-Exempt Substitute Refrigerants As noted above, EPA concluded in the 2016 Rule that it had supplemental authority under section 608(a) to extend the subpart F requirements to non-exempt substitutes: This action extending the regulations under subpart F to non- exempt substitutes is additionally supported by the authority in section 608(a) because regulations that minimize the release and maximize the recapture and recovery of non-exempt substitutes will also reduce the release and increase the recovery of ozone-depleting substances. Improper handling of substitute refrigerants is likely to contaminate appliances and recovery cylinders with mixtures of ODS and non-ODS substitutes, which can lead to illegal venting because such mixtures are difficult or expensive to reclaim or appropriately dispose of . . . . In short, the authority to promulgate regulations regarding the use of class I and II substances encompasses the authority to establish regulations regarding the proper handling of substitutes where this is needed to reduce emissions and maximize recapture and recycling of class I and II substances. Applying consistent requirements to all non-exempt refrigerants will reduce complexity and increase clarity for the regulated community and promote compliance with those requirements for ODS refrigerants, as well as their substitutes. [81 FR 82286.] In reviewing the legal interpretation of 608(a) that supported the 2016 Rule, EPA has further examined the connection between the purposes of section 608(a) and the 2016 Rule's extension of subpart F refrigerant management requirements to non-exempt substitute refrigerants. After further consideration of this issue, EPA believes that the statements in the preamble to the 2016 Rule, which were advanced generally and without distinction to support extending all the subpart F requirements to non-exempt substitute refrigerants, failed to recognize that particular requirements may have a greater or lesser connection to the purposes of section 608(a) when applied to non-exempt substitute refrigerants. Accordingly, EPA is proposing to conclude that the connection between applying the leak repair requirements to appliances with only substitute refrigerants and the reduction in emissions of ODS is too tenuous to support reliance on CAA section 608(a) as a basis for authority to extend the leak repair requirements to non-exempt substitutes. [[Page 49340]] This may be particularly true when the leak repair provisions are compared to the other provisions of subpart F. The 2016 Rule also identified several scenarios where failure to apply consistent standards to appliances containing non-exempt substitute refrigerants could arguably lead to emissions of ODS. For example, improper handling of non-exempt substitute refrigerants by persons lacking the requisite training may contaminate appliances and recovery cylinders with mixtures of ODS and non-ODS substitutes. Contaminated appliances may lead to equipment failures and emissions from those systems, including emissions of ODS. Because contaminated cylinders may be more costly to recycle they may simply be destroyed. The costs of handling or properly disposing of these mixed refrigerants may incentivize intentional releases to the atmosphere. Therefore, contamination can lead to the release of class I and class II substances. Maintaining the sales restriction and technician certification requirement for non-exempt substitute refrigerants may reduce the possibility that refrigerant in the appliances will be misidentified by an uncertified person attempting to service the appliance, which in turn reduces the possibility that contamination and subsequent refrigerant releases may occur. Maintaining reclamation standards may ensure that used refrigerant is not contaminated when it reenters the market for use and may reduce emissions associated with the mixing of refrigerants and equipment damage. EPA solicits comment and any data or analysis commenters may have regarding these scenarios, their frequency, and their emissions effects. In contrast, requiring the repair of appliances using only substitute refrigerants would reduce emissions from those particular appliances, but is unlikely to independently reduce cross- contamination, refrigerant mixing, or releases from an ODS appliance. The response to comments for the 2016 Rule \15\ did note, in the context of explaining EPA's authority for the revisions to 40 CFR 82.157, that providing a consistent standard for ODS and non-exempt substitute refrigerants would reduce emissions of ODS by reducing the incidence of failure to follow the requirements for ODS appliances. However, in that discussion, EPA did not address whether, if all other subpart F requirements were extended to non-exempt substitutes, it would be necessary to also extend Sec. 82.157 to non-exempt substitute refrigerants. EPA is proposing to withdraw the extension of the subpart F provisions related to leak repair for non-exempt substitute refrigerants. Other elements of the 608 program such as the refrigerant sales restriction, technician certification, reclamation standards, and evacuation standards would continue to apply to non-exempt substitute refrigerants if this proposal is finalized. If these other subpart F requirements continue to apply, such that, for example, the regulations only permit certified technicians to service equipment regardless of whether it contains ODS or non-exempt substitutes, those requirements could also reduce the incidence of failure to follow the requirements for ODS appliances. By contrast, it is unclear how application specifically of the leak repair requirements to non-exempt substitute refrigerants would lead to additional reductions in ODS emissions if those other requirements are applied to non-exempt substitutes. Thus, insofar as the 2016 Rule was grounded in an argument that section 608(a) supports the extension of the leak repair provisions to non- exempt substitute refrigerants, EPA is proposing to withdraw that interpretation. --------------------------------------------------------------------------- \15\ Response to Comments for the Notice of Proposed Rulemaking: Protection of Stratospheric Ozone: Update to the Refrigerant Management Requirements under the Clean Air Act, pages 13-14 (pdf pages 18-19). Available at: https://www.regulations.gov/document?D=EPA-HQ-OAR-2015-0453-0226. --------------------------------------------------------------------------- EPA is also seeking comment on whether, as a matter of statutory interpretation, the agency can rely on section 608(a) for the issuance of any of the subpart F requirements for substitute refrigerants, even those for which there is demonstrably a connection between the regulatory requirement and the purposes of section 608(a) to reduce use and emission of class I and II substances to the lowest achievable levels and maximize the recapture and recycling of such substances. As noted above, in section 608(a) Congress specifically required EPA to issue regulations for class I and class II substances that would meet certain statutory purposes set forth in that section. But Congress did not list substitutes for coverage by those requirements. In contrast, section 608(c) does expressly extend requirements to substitute refrigerants. This difference between section 608(a) and 608(c) could be interpreted as a manifestation of Congressional intent to distinguish between the categories of substances covered in these respective provisions and to only convey authority to address substitute refrigerants under 608(c), not 608(a).\16\ This interpretation, if adopted, would lead to the conclusion that section 608(a) cannot provide a basis for extending any of subpart F's refrigerant management requirements to substitute refrigerants.\17\ --------------------------------------------------------------------------- \16\ This interpretation would not affect EPA's discretionary authority to ``include requirements to use alternative substances (including substances which are not class I or class II substances) . . . or to promote the use of safe alternatives pursuant to section [612]'' in regulations under section 608(a), as these authorities are expressly mentioned in section 608(a)(3). As discussed at n.11, supra, EPA did not rely on these authorities in 608(a)(3) in extending the refrigerant management requirements to substitute refrigerants in the 2016 Rule, and is not relying on them in this proposal or in addressing the underlying questions of statutory interpretation at issue here. \17\ Some commenters on the 2016 Rule pointed out that Congress specifically listed class I and class II substances for coverage under the regulations required by section 608(a) and contended that those regulations could not be applied to refrigerants that are neither class I nor class II substances. --------------------------------------------------------------------------- EPA requests comment on the proposed changes discussed in this section, including the proposed changes in interpretation of section 608(a) so as to remove support for the extension of the leak repair requirements in Sec. 82.157 to non-exempt substitute refrigerants. EPA also requests comment on the frequency of appliances being contaminated by mixtures of ODS and substitute refrigerants, and the resulting equipment damage. Further, EPA requests comment on whether the agency should conclude that it could not rely on section 608(a) for any authority to extend subpart F requirements to substitutes. If EPA were to reach such a conclusion, EPA would rely solely on section 608(c) for the extension of the non-leak repair subpart F requirements to non- exempt substitutes, or alternatively, would withdraw the entire extension. As noted previously, the docket contains a version of the regulatory text showing the types of revisions to subpart F that the Agency is considering making should it decide to finalize a full withdrawal of the 2016 Rule's extension of the refrigerant management requirements to non-exempt substitutes. In addition, EPA welcomes comment on whether section 608(a) provides authority to promulgate a set of leak repair provisions, or refrigerant management requirements generally, for non-exempt substitutes that may be different from the ones currently found in subpart F. If the Agency were to decide to pursue a different approach than one of the two potential outcomes discussed in detail in this proposed rule--the proposed action, rescinding the 2016 Rule's extension of the leak repair requirements to non-exempt [[Page 49341]] substitutes, or the potential alternative approach on which it takes comment, rescinding its extension of the full set of subpart F requirements to non-exempt substitutes--it would provide the public with an opportunity to offer comments on that different approach. Lastly, EPA requests comment on whether stakeholders may have a reliance interest in either the leak repair provisions or the other subpart F provisions as they relate to substitutes under the 2016 Rule and how that interest would be affected by the potential changes discussed in this section. F. Extension of the January 1, 2019 Compliance Date for the Appliance Maintenance and Leak Repair Provisions for Non-Exempt Substitute Refrigerants EPA is evaluating whether the January 1, 2019 compliance date for the appliance maintenance and leak repair provisions for non-exempt substitutes remains viable for regulated entities or whether the date should be extended, depending on the outcome and timing of the final rule. EPA has been working to develop this proposed rule expeditiously and intends to develop the final rule as quickly as practicable, in recognition of the January 1, 2019 compliance date for the extension of the appliance maintenance and leak repair provisions at Sec. 82.157 to non-exempt substitutes.\18\ Despite the Agency's best efforts, it is possible that regulated entities will face a choice about whether to incur compliance costs prior to issuance of a final rule that could rescind those requirements for non-exempt substitutes. In that scenario, certain regulated entities likely would incur costs to comply with provisions that might ultimately be rescinded, while the foregone benefits of extending the compliance date likely would be limited as explained below. Therefore, EPA is proposing to take final action to extend the compliance date in Sec. 82.157(a) for appliances containing only non-exempt substitute refrigerants if final action on the substantive portions of this proposed rule will not occur within a reasonable time before the existing compliance date. If we take final action on this proposal, we will revise the first sentence of Sec. 82.157(a) to extend the compliance date for appliances containing only non-exempt substitute refrigerants. Such an extension would only be for as long as is needed to provide regulated entities certainty on whether to incur expenditures necessary to comply with these provisions. EPA anticipates that the extension would be between six to twelve months beyond January 1, 2019. If needed, EPA intends to take final action on the proposed extension of the compliance date separate from, and before, taking final action on other proposals in this document. --------------------------------------------------------------------------- \18\ Only the amendments to the appliance maintenance and leak repair provisions found at Sec. 82.157 have a compliance date of January 1, 2019. EPA is not proposing an extension of the compliance dates for the extension of any of the other subpart F requirements, as those compliance dates have already passed. While the amendments at Sec. 82.157 include revisions to the appliance maintenance and leak repair program that affect appliances using ODS refrigerants, as well those using only non-exempt substitutes, EPA is only proposing to extend the compliance date for appliances using only non-exempt substitutes, for the reasons described later in this document. --------------------------------------------------------------------------- EPA is proposing this extension because it anticipates that there could be undue costs to owners and operators to comply with the appliance maintenance and leak repair provisions for appliances containing non-exempt substitutes, such as inventorying equipment, establishing recordkeeping procedures, and meeting the new leak rate thresholds if it has not finalized any revisions within a reasonable time before the existing compliance date and if that compliance date is not extended. Facilities that have both ODS and non-exempt substitute appliances may already be using similar refrigerant management programs for all of their appliances. However, the costs may be greater for facilities that only have appliances that use non-exempt substitute refrigerants and that do not have established procedures for ODS- containing equipment. In the 2016 Rule EPA did consider the ongoing costs that such facilities would face in complying with the newly applicable subpart F requirements, but did not consider potential one- time costs to such facilities associated with establishing a refrigerant management program or designing a recordkeeping system. EPA's analysis of appliance data submitted to the California Air Resources Board under its Refrigerant Management Program show that 46 percent of facilities only have HFC appliances. Within that group of facilities, EPA estimates that 55 percent have at least one appliance that exceeds the new threshold rates. As discussed in the economic analysis section, EPA estimates that extending the compliance date by up to 12 months would result in foregone annual GHG emissions reductions benefits of 3 MMTCO2 e. EPA requests comment on the proposal to extend the date by which appliances containing non-exempt substitute refrigerants must comply with Sec. 82.157. EPA is interested in whether facilities, and particularly those facilities that do not have ODS equipment, anticipate any practical difficulties in gearing up to meet the January 1, 2019 compliance date, and intends to consider such information in determining whether a compliance date extension is needed. EPA additionally requests comments on any costs or hardship that owners and operators of appliances containing non-exempt substitutes would face if this compliance date is not extended and if EPA has not finalized any revisions within a reasonable time before the current compliance date for Sec. 82.157, and on any foregone benefits from extending this compliance date. EPA further notes that the United States Court of Appeals for the District of Columbia Circuit issued a recent decision in Air Alliance Houston v. EPA, No. 17-1155 (DC Cir. August 17, 2018), which addressed an EPA rule delaying the effective date of a previously issued EPA regulation in the context of a reconsideration proceeding under section 307(d)(7)(B) of the Clean Air Act. In contrast to the rule at issue in the Air Alliance Houston case, this notice of proposed rulemaking is not occurring in the context of a section 307(d)(7)(B) reconsideration. Nevertheless, EPA requests comments regarding the implications, if any, of this recent decision for its ability to finalize an extension of the compliance date as proposed in this section. EPA will consider these comments in deciding whether to finalize such an extension. III. Economic Analysis Section 608 of the CAA does not explicitly address whether costs or benefits should be considered in developing regulations under that section. Because the statutory language does not dictate a particular means of taking economic factors into account, if at all, EPA has discretion to adopt a reasonable method for doing so. EPA has focused primarily on the proper scope of the Agency's authority to regulate, although it has also presented and considered an analysis of costs and benefits in making the choices underlying this proposed rulemaking. EPA interprets section 608 to permit it to consider costs and benefits, but does not interpret section 608 to require it to propose or select the option with the best cost-benefit outcome. While EPA is proposing to determine that the 2016 Rule's extension of the full set of subpart F requirements, in its entirety, to non- exempt substitute refrigerants exceeded EPA's statutory authority, the agency notes that it has [[Page 49342]] also considered costs in developing this proposal. EPA's economic analysis indicates that the expected cost savings for the proposal would outweigh the monetized foregone benefits. Specifically, the $39 million annual savings of rescinding the 2016 Rule's extension of the leak repair provisions to non-exempt substitutes would outweigh the foregone benefits of $15 million in avoided refrigerant purchases. For the scenario where the agency would rescind the entire extension of the subpart F requirements to non-exempt substitutes in the 2016 Rule, the cost savings of $43 million would outweigh the same $15 million in foregone benefits.\19\ EPA requests comment on whether it should continue to explicitly take costs into consideration in the final rule, and if so how. --------------------------------------------------------------------------- \19\ This analysis is based on effects that EPA monetized in the 2016 Rule. As discussed later in this section, EPA is requesting comment on additional factors. --------------------------------------------------------------------------- The Agency attempted to minimize costs in the 2016 Rule, in particular by allowing more time and options for repair before requiring retrofit or retirement. As an example, EPA provided an extension if a component is not available in the first 30 days after discovering the leak. Prior to 2016, an owner/operator would have had to retrofit or retire their appliance. Owners and operators of appliances containing non-exempt substitutes would also benefit from those flexibilities, but also became subject to a new regulatory scheme. EPA is proposing to remove the requirement to repair leaks in appliances containing only substitute refrigerants, along with the associated verification tests, leak inspections, and recordkeeping. In the 2016 Rule, EPA estimated that extending the leak repair provisions to appliances containing non-exempt substitutes would have an annual cost of $39 million in 2014 dollars using a 7 percent discount rate. This is composed of $10 million in recordkeeping costs and $29 million in repair and leak inspection costs. Costs were modeled for a single typical year in which all the requirements were in effect, based on the appliance distribution modeled for 2015. To allow for ease of comparison between the two rules, the model and the use of 2014 dollars are the same in the analysis for this proposal as EPA used in the 2016 Rule. In the 2016 Rule, EPA also estimated lower expenditures to purchase replacement refrigerant and lower emissions of refrigerant expressed in ozone depletion potential tons and global warming potential. The current leak repair requirement in the 2016 Rule was expected to result in appliance owners or operators purchasing less refrigerant because they would be able to identify and repair leaks earlier, preventing refrigerant releases. EPA estimated that the total annual reduced expenditures for purchasing non-exempt substitute refrigerant would be $15 million. By withdrawing that portion of the 2016 Rule, those reduced expenditures would not be realized. EPA estimates that this proposed rule to rescind the extension of the leak repair provisions to substitutes would not directly affect the stratospheric ozone layer. EPA is not proposing to amend any provisions of 40 CFR part 82, subpart F that relate to ODS refrigerants. EPA estimates that this proposed action would result in foregone annual GHG emissions reductions benefits of 2.9 MMTCO2 e--approximately a 40 percent reduction from the level estimated for the 2016 rulemaking. GHG emissions reductions benefits associated with the reduction in emissions of ODS refrigerants would be retained. As discussed previously, EPA is requesting comment on whether to withdraw the entire extension of subpart F requirements to non-exempt substitute refrigerants. EPA estimates that rescinding the entire subpart F requirements for non-exempt substitute refrigerants would reduce the annual burden associated with the 2016 Rule by at least an additional $4 million per year (for a total annual burden reduction of at least $43 million per year). This is composed of $3 million in compliance costs associated with the requirement to use self-sealing valves on small cans of refrigerant and $1 million in recordkeeping costs. The unrealized annual savings associated with reduced use of non-exempt substitute refrigerant would remain $15 million, as discussed previously. Thus, EPA estimates that withdrawing the entire extension of subpart F requirements to non-exempt substitute refrigerants would reduce total compliance costs by at least $28 million per year. EPA estimates that this would result in additional foregone annual greenhouse gas (GHG) emissions reductions benefits of 0.7 MMTCO2 e associated with the use of self-sealing valves (for a total of at least 3.6 MMTCO2 e). While the majority of GHG reductions from HFC appliances that EPA quantified were the result of extending the leak repair provisions to non-exempt substitutes, in the 2016 Rule EPA asserted that there would be other, unquantified benefits resulting from extending the full set of refrigerant management provisions to substitutes. In the 2016 Rule, EPA did not identify any additional costs or benefits associated with extending certain provisions of subpart F to non-exempt substitute refrigerants. These provisions include the evacuation requirements, recovery equipment certification, safe disposal requirements, reclamation standards, and technician certification. As noted in the technical support document for the 2016 Rule, EPA assumes full compliance with the venting prohibition and such actions that were considered necessary to comply with the venting prohibition were not considered to lead to additional costs or benefits. With regard to the extension of the 608 technician certification requirement to non-exempt substitute refrigerants in the 2016 Rule, EPA understood that most technicians serviced both appliances containing ODS refrigerants, which were previously subject to the 608 technician certification requirements, and appliances containing non-exempt substitutes. Most technicians are contractors who work on appliances of various ages and for multiple clients, including both individuals and businesses. There was no evidence that facilities using only non-exempt substitute refrigerants are segregated geographically, such that a technician in a certain county would only encounter appliances solely using non-exempt substitutes, or are segregated by business type, such that a technician who only works in one sector (e.g., supermarkets or residential air conditioning) would only encounter appliances solely using non-exempt substitutes. Based on this rationale, EPA concluded in the 2016 Rule that it was extremely unlikely that a person in the air- conditioning and refrigeration equipment servicing field would never encounter equipment containing ODS refrigerant during the course of their career. Accordingly, in the 2016 Rule, EPA assumed persons entering that field would seek 608 technician certifications in order to maintain competitiveness and persons currently in that field already had 608 certification so that they could accept jobs that involved appliances containing ODS refrigerant. While commenters on the 2016 Rule did not provide any information indicating EPA's analysis was missing a significant group of new technicians that would be newly required to go through the 608 certification process, during the development of this notice of proposed rulemaking one Federal Department indicated that they had 608 certified technicians working on [[Page 49343]] facilities with appliances containing class I or class II refrigerant, and a separate group of un-certified persons working at facilities that contained only appliances using non-exempt substitute refrigerant. Based on this new information, EPA broadly requests comment on whether there are costs associated with the technician certification requirements in the 2016 Rule and on whether removal of that technician certification requirement for non-exempt substitutes would alleviate those costs. EPA particularly requests comment on whether this Federal Department's arrangement is typical, either for larger entities that have in-house personnel servicing appliances or for contractors that provide technicians to service refrigeration and cooling equipment. If so, EPA requests comment on what training was provided prior to the 2016 Rule related to the handling of refrigerants or the venting prohibition for those technicians, whether there were any costs associated with tracking which personnel are 608 certified and thus were eligible to work on appliances containing ODS refrigerant, and which were not certified and thus were only eligible to work on appliances containing non-exempt substitutes. Similarly, EPA broadly requests comments on whether there are costs associated with the other provisions that were extended to non-exempt substitute refrigerants in the 2016 Rule for which EPA had previously assumed no incremental compliance costs. Conversely, because those requirements have now gone into effect, EPA requests comment on whether there are any costs associated with rescinding those requirements as they apply to non- exempt substitute refrigerants. Details of the methods used to estimate the benefits of this proposed rule are discussed in the Analysis of the Economic Impact of the Proposed 2018 Revisions to the National Recycling and Emission Reduction Program in the docket. For a complete description of the methodology used in EPA's analysis, see the technical support document and Section VI of the 2016 Rule (81 FR 82344). To avoid the costs associated with leaking appliances and increased refrigerant purchases, owners and operators of large appliances that use non-exempt substitute refrigerants may already be engaged in effective refrigerant management programs that work for their facilities and their types of equipment. EPA welcomes input from owners and operators of such equipment for how to achieve the goals of the 2016 Rule in reducing refrigerant leaks without a comprehensive regulatory program for leak repair. IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review This action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review. Any changes made in response to OMB recommendations have been documented in the docket. EPA prepared an economic analysis of the potential costs and benefits associated with this action which is available in Docket Number EPA-HQ-OAR-2017-0629. B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs This action is expected to be an Executive Order 13771 deregulatory action. Details on the estimated cost savings of this proposed rule can be found in EPA's analysis of the potential costs and benefits associated with this action. C. Paperwork Reduction Act (PRA) The information collection activities in this proposed rule have been submitted for approval to OMB under the PRA. The Information Collection Request (ICR) document that the EPA prepared has been assigned EPA ICR number 1626.16. You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here. EPA is proposing to revise the leak repair provisions so they apply only to equipment using refrigerant containing a class I or class II substance. This proposal does not affect the recordkeeping and reporting requirements finalized in the 2016 Rule that apply to appliances containing 50 or more pounds of an ODS refrigerant. There are no new records that would be maintained or reports that would be submitted under this proposal. Most of this burden is already covered by the existing requirements in 40 CFR part 82, subpart F, and the existing ICR. Respondents/affected entities: This proposal would remove reporting and recordkeeping requirements for owners and operators of appliances containing 50 or more pounds of a non-exempt substitute refrigerant (e.g., HFCs) and technicians servicing such appliances. Entities required to comply with reporting and recordkeeping requirements include technicians; technician certification programs; refrigerant wholesalers; refrigerant reclaimers; refrigeration and air-conditioning equipment owners and/or operators; and other establishments that perform refrigerant removal, service, or disposal. Respondent's obligation to respond: Mandatory (40 CFR part 82, subpart F). Estimated number of respondents: 573,731. Frequency of response: The frequency of responses vary from once a year to daily. Public reporting burden for this collection of information is estimated to vary from one minute to 9.4 hours per response, including time for reviewing instructions and gathering, maintaining, and submitting information. Total estimated burden: 434,359 hours (per year). Burden is defined at 5 CFR 1320.3(b). Total estimated cost: $24,625,892 (per year). There are no estimated annualized capital or operation & maintenance costs associated with the reporting or recordkeeping requirements. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9. Submit your comments on the Agency's need for this information, the accuracy of the provided burden estimates and any suggested methods for minimizing respondent burden to the EPA using the docket identified at the beginning of this rule. You may also send your ICR-related comments to OMB's Office of Information and Regulatory Affairs via email to [email protected], Attention: Desk Officer for the EPA. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after receipt, OMB must receive comments no later than October 31, 2018. The EPA will respond to any ICR-related comments in the final rule. D. Regulatory Flexibility Act (RFA) I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. This proposed rule would not impose any [[Page 49344]] new regulatory requirements. It is deregulatory in that it proposes to remove required leak repair and maintenance practices and associated recordkeeping for appliances containing non-exempt substitute refrigerant. This document also seeks comments on withdrawal of additional refrigerant management requirements for appliances containing non-exempt substitute refrigerant. We have therefore concluded that this action will relieve regulatory burden for directly regulated small entities. E. Unfunded Mandates Reform Act This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector. F. Executive Order 13132: Federalism This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This action does not have tribal implications as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments, on the relationship between the federal government and Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this action. H. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866. EPA has not conducted a separate analysis of risks to infants and children associated with this proposed rule. I. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This action is not a ``significant energy action'' because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. J. National Technology Transfer and Advancement Act (NTTAA) This rulemaking does not involve technical standards. K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations EPA believes that it is not feasible to quantify any disproportionately high and adverse effects from this action on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). List of Subjects in 40 CFR Part 82 Environmental protection, Air pollution control, Chemicals, Reporting and recordkeeping requirements. Dated: September 18, 2018. Andrew R. Wheeler, Acting Administrator. For the reasons set forth in the preamble, the Environmental Protection Agency proposes to amend 40 CFR part 82 as follows: PART 82--PROTECTION OF STRATOSPHERIC OZONE 0 1. The authority citation for part 82 continues to read as follows: Authority: 42 U.S.C. 7414, 7601, 7671-7671q. 0 2. Amend Sec. 82.154 by revising paragraph (a)(2)(i) to read as follows: Sec. 82.154 Prohibitions. (a) * * * (2) * * * (i) The applicable practices in Sec. 82.155 and Sec. 82.156 are observed, the practices in Sec. 82.157 are observed for appliances that contain a class I or class II refrigerant, recovery and/or recycling machines that meet the requirements in Sec. 82.158 are used whenever refrigerant is removed from an appliance, the technician certification provisions in Sec. 82.161 are observed, and the reclamation requirements in Sec. 82.164 are observed; or * * * * * 0 3. Amend Sec. 82.157 by revising paragraph (a) to read as follows: Sec. 82.157 Appliance maintenance and leak repair. (a) Applicability. This section applies as of January 1, 2019. This section applies only to appliances with a full charge of 50 or more pounds of any class I or class II refrigerant or blend containing a class I or class II refrigerant. Notwithstanding the use of the term refrigerant in this section, the requirements of this section do not apply to appliances containing solely substitute refrigerants. Unless otherwise specified, the requirements of this section apply to the owner or operator of the appliance. * * * * * [FR Doc. 2018-21084 Filed 9-28-18; 8:45 am] BILLING CODE 6560-50-P
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reference, Intergovernmental relations, refrigerant. EPA is also taking comment components. First, section 608(a)
Nitrogen dioxide, Ozone, Reporting and on whether, in connection with the requires EPA to establish standards and
recordkeeping requirements, Volatile proposed changes to the legal requirements regarding the use and
organic compounds. interpretation, the 2016 Rule’s extension disposal of class I and class II
Authority: 42 U.S.C. 7401 et seq. of subpart F refrigerant management substances.1 The second component,
requirements to such substitute section 608(b), requires that the
Dated: September 19, 2018.
refrigerants should be rescinded in full. regulations issued pursuant to
Onis ‘‘Trey’’ Glenn, III, Additionally, EPA is proposing to subsection (a) contain requirements for
Regional Administrator, Region 4. extend by six to twelve months the the safe disposal of class I and class II
[FR Doc. 2018–21328 Filed 9–28–18; 8:45 am] January 1, 2019 compliance date for substances. The third component,
BILLING CODE 6560–50–P when appliances containing only section 608(c), prohibits the knowing
substitute refrigerants subject to the venting, release, or disposal of ODS
venting prohibition must comply with refrigerants 2 and their substitutes 3 in
ENVIRONMENTAL PROTECTION the appliance maintenance and leak the course of maintaining, servicing,
AGENCY repair provisions. repairing, or disposing of appliances or
DATES: Written comments must be industrial process refrigeration (IPR).
40 CFR Part 82
received by November 15, 2018. EPA This third component is also referred to
[EPA–HQ–OAR–2017–0629; FRL–9984–55– will hold a public hearing on or before as the ‘‘venting prohibition’’ in this
OAR] proposal. Section 608(c)(1) includes an
October 16, 2018. The hearing will be
RIN 2060–AT81 held in Washington, DC. More details exemption from this prohibition for
concerning the hearing can be found at ‘‘[d]e minimis releases associated with
Protection of Stratospheric Ozone: www.epa.gov/section608. good faith attempts to recapture and
Revisions to the Refrigerant ADDRESSES: Submit your comments,
recycle or safely dispose’’ of class I or
Management Program’s Extension to identified by Docket ID No. EPA–HQ– class II substances, and section 608(c)(2)
Substitutes OAR–2017–0629, at extends 608(c)(1) to substitute
www.regulations.gov. Follow the online refrigerants. Section 608(c)(2) also
AGENCY: Environmental Protection
instructions for submitting comments. includes a provision that allows the
Agency (EPA).
Once submitted, comments cannot be Administrator to exempt a substitute
ACTION: Proposed rule.
edited or removed from Regulations.gov. refrigerant from the venting prohibition
SUMMARY: The Clean Air Act (CAA) EPA may publish any comment received if he or she determines that such
prohibits knowingly venting or releasing to its public docket. Do not submit venting, release, or disposal of a
ozone-depleting and substitute electronically any information you substitute refrigerant ‘‘does not pose a
refrigerants in the course of consider to be Confidential Business threat to the environment.’’ 4
maintaining, servicing, repairing, or Information (CBI) or other information EPA first issued regulations under
disposing of appliances or industrial whose disclosure is restricted by statute. section 608 of the CAA on May 14, 1993
process refrigeration. On November 18, Multimedia submissions (audio, video, (58 FR 28660, ‘‘1993 Rule’’), to establish
2016, EPA finalized a rule that updated etc.) must be accompanied by a written the national refrigerant management
the existing refrigerant management comment. The written comment is program for ODS refrigerants recovered
requirements and extended considered the official comment and during the service, repair, or disposal of
requirements that previously applied should include discussion of all points air-conditioning and refrigeration
only to refrigerants containing an ozone- you wish to make. EPA will generally appliances. These regulations were
depleting substance (ODS) to substitute not consider comments or comment intended to substantially reduce the use
refrigerants such as hydrofluorocarbons contents located outside of the primary and emissions of refrigerants that are
that are subject to the venting submission (e.g., on the web, cloud, or ODS.
prohibition (i.e., those that have not other file sharing system). For
been exempted from that prohibition). additional submission methods, the full 1 A class I or class II substance refers to an ozone-
The Agency is revisiting the aspects of EPA public comment policy, depleting substance listed at 40 CFR part 82 subpart
the 2016 Rule that apply to equipment A, appendix A or appendix B, respectively. This
information about CBI or multimedia proposal refers to class I and class II substances
containing such substitute refrigerants. submissions, and general guidance on collectively as ozone-depleting substances, or ODS.
This action proposes changes to the making effective comments, please visit 2 The term ‘‘ODS refrigerant’’ as used in this
legal interpretation that supported that www.epa.gov/dockets/commenting-epa- proposal refers to any refrigerant or refrigerant
rule and amendments to the regulations blend in which one or more of the components is
dockets. a class I or class II substance.
based on the revised interpretation.
FOR FURTHER INFORMATION CONTACT: 3 The term ‘‘substitute’’ is defined at 40 CFR
More specifically, in connection with 82.152. In the context of the subpart F regulations,
the proposed changes to the legal Jeremy Arling by regular mail: U.S.
any refrigerant or refrigerant blend in which none
interpretation, EPA is proposing to Environmental Protection Agency, of the components is a class I or class II substance
revise the appliance maintenance and Stratospheric Protection Division is treated as a substitute, while any refrigerant or
leak repair provisions so they apply (6205T), 1200 Pennsylvania Avenue refrigerant blend in which one or more the
NW, Washington, DC 20460; by components is a class I or class II substance is
only to equipment using refrigerant regulated as an ODS refrigerant.
containing a class I or class II substance. telephone: (202) 343–9055; or by email: 4 EPA is using the term ‘‘non-exempt substitute’’
amozie on DSK3GDR082PROD with PROPOSALS1
Based on this proposed limitation of the arling.jeremy@epa.gov. in this document to refer to substitute refrigerants
that have not been exempted from the venting
leak repair requirements, this document I. General Information prohibition under CAA section 608(c)(2) and 40
further proposes to revise the list of CFR 82.154(a) in the relevant end-use. Similarly,
practices that must be followed in order A. What is the National Recycling and the term ‘‘exempt substitute’’ refers to a substitute
for refrigerant releases to be considered Emission Reduction Program? refrigerant that has been exempted from the venting
prohibition under section 608(c)(2) and § 82.154(a)
de minimis to clarify that the reference Section 608 of the CAA, titled in the relevant end-use. A few exempt substitutes
to following leak repair practices only ‘‘National Recycling and Emissions have been exempted from the venting prohibition
applies to equipment that contains ODS Reduction Program,’’ has three main in all end-uses.
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TABLE 1—POTENTIALLY AFFECTED ENTITIES—Continued
North American Industry Classification System
Category Examples of regulated entities
(NAICS) code
Disposers and Recy- 423990, 562212, 562920 ................................. Materials recovery facilities, solid waste landfills, and other miscella-
clers of Appliances. neous durable goods merchant wholesalers.
Refrigerant Wholesalers 325120, 42, 424690 ......................................... Industrial gas manufacturers, other chemical and allied products mer-
chant wholesalers, wholesale trade.
Certifying Organizations 541380 ............................................................. Environmental test laboratories and services.
This list is not intended to be Administrator’s letter, the Agency is statutory authority. In connection with
exhaustive, but rather to provide a guide now proposing to withdraw the recent the proposed changes in its legal
for readers regarding entities likely to be extension of the appliance maintenance interpretation, EPA is proposing to
affected by this action. To determine and leak repair provisions at 40 CFR rescind the 2016 Rule’s extension of the
whether your facility, company, 82.157 6 to appliances using only non- leak repair requirements to non-exempt
business, or organization could be exempt substitute refrigerants.7 This substitutes, while retaining the
affected by this action, you should proposal would relieve businesses from extension of the remaining subpart F
carefully examine the regulations at 40 having to conduct leak inspections, requirements. In light of the questions
CFR part 82, subpart F and the proposed repair leaks, and keep records for regarding the scope of EPA’s authority
revisions below. If you have questions appliances containing 50 or more to regulate non-exempt substitute
regarding the applicability of this pounds of non-exempt substitute refrigerants under section 608, EPA is
action, if finalized, to a particular entity, refrigerant. EPA is also taking comment also taking comment on whether it
consult the person listed in the FOR on whether to withdraw the extension would be appropriate and warranted for
FURTHER INFORMATION CONTACT section. of the full set of subpart F provisions to the agency to instead rescind the entire
non-exempt substitute refrigerants. EPA extension of the subpart F requirements
C. What action is the agency taking?
is not proposing any changes to the to non-exempt substitutes at this time.
Subpart F contains a comprehensive refrigerant management program as it EPA is not, however, proposing to
set of specific refrigerant management relates to requirements for ozone- change the interpretation that EPA has
requirements, including provisions that: depleting refrigerants or appliances authority to interpret the venting
Restrict the servicing of appliances and containing or using any amount of ODS. prohibition and the de minimis
the sale of refrigerant to certified Accordingly, none of the proposed exemption in section 608(c) and to
technicians; specify the proper changes would affect requirements for explain how that prohibition and that
evacuation levels before opening an ODS under CAA section 608. exemption apply to non-exempt
appliance; require the use of certified substitute refrigerants.8
refrigerant recovery and/or recycling D. What is the agency’s authority for
taking this action? EPA’s authority for this proposed
equipment; require the maintenance and action is further supported by the
repair of appliances that meet size and These proposed revisions to the Agency’s authority to revisit and revise
leak rate thresholds; require that regulations found at 40 CFR part 82, existing regulations and legal
refrigerant be removed from appliances subpart F are based on proposed interpretations. More detail on EPA’s
prior to disposal; require that appliances changes to EPA’s interpretation of its authority for this action is provided in
have a servicing aperture or process stub authority under CAA section 608. In subsequent sections of this document,
to facilitate refrigerant recovery; require particular, in the 2016 Rule EPA had for including in sections II.D and II.E
that refrigerant reclaimers be certified to the first time adopted an interpretation below, discussing EPA’s authority under
reclaim and sell used refrigerant; and of CAA section 608 to support the CAA sections 608(c) and 608(a),
establish standards for technician extension of the full set of subpart F respectively.
certification programs, recovery refrigerant management requirements to
equipment, and quality of reclaimed non-exempt substitute refrigerants. E. What are the incremental costs and
refrigerant (40 CFR part 82 subpart F). Under the interpretation proposed in benefits of this action?
Based on feedback from some in the this document, EPA now proposes to By rescinding the extension of the
regulated community, the Agency conclude that its authority to regulate leak repair provisions to substitutes, the
reviewed the 2016 Rule, focusing in substitutes under section 608 does not proposed rule would reduce the burden
particular on whether the Agency had extend as far as its authority to regulate associated with the 2016 Rule by $39
the statutory authority to extend the full ODS. Specifically, EPA would conclude, million per year. EPA also estimates this
set of subpart F refrigerant management as a legal matter, that the extension of rule would increase the need to
regulations to non-exempt substitute the full set (that is, the entirety) of purchase non-exempt substitute
refrigerants, such as HFCs and HFOs. subpart F requirements to non-exempt refrigerant for leaking appliances, at an
Based on that review, Administrator substitute refrigerants exceeds EPA’s overall cost of approximately $15
Pruitt signed a letter on August 10, 2017
million per year. Thus, incremental
stating that EPA is ‘‘planning to issue a at www.epa.gov/sites/production/files/2017-08/ compliance savings and increased
amozie on DSK3GDR082PROD with PROPOSALS1
proposed rule to revisit aspects of the documents/608_update_letter.pdf and in the docket
refrigerant costs combined are estimated
2016 Rule’s extension of the 40 CFR part to this rule.
6 For ease of reference, in this document EPA uses to be a reduction of at least $24 million
82 subpart F refrigerant management
the terms ‘‘leak repair provisions’’ or ‘‘leak repair
requirements to non-exempt requirements’’ to refer to the appliance maintenance 8 Section 608(c) does not expressly provide that
substitutes.’’ 5 Consistent with the and leak repair provisions at 40 CFR 82.157. EPA may write regulations under that section.
7 Ozone-depleting refrigerants and appliances that Section 301, however, states that the
5 Letter from EPA to National Environmental contain or use any amount of class I or class II ODS ‘‘Administrator is authorized to prescribe such
Development Association’s Clean Air Project and would continue to be subject to the ODS regulations as are necessary to carry out his
the Air Permitting Forum (Aug. 10, 2017), available requirements. functions under [the Clean Air Act].’’
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![Federal Register / Vol. 83, No. 190 / Monday, October 1, 2018 / Proposed Rules 49335
per year. EPA estimates that this extension of the subpart F requirements reductions of 0.7 MMTCO2e associated
proposed action would result in to non-exempt substitutes and any with the use of self-sealing valves for a
foregone annual greenhouse gas (GHG) additional cost savings associated with total foregone emissions reduction of at
emissions reductions benefits of at least that action. This would reduce the least 3.6 MMTCO2e.
3 million metric tons of carbon dioxide burden associated with the 2016 Rule by Table 2 presents a summary of the
equivalent (MMTCO2e). This proposed at least an additional $4 million per year annual costs and benefits associated
rule to rescind the extension of the leak (for a total annual burden reduction of with two scenarios including rescinding
repair provisions to substitutes would at least $43 million per year). EPA the extension of the leak repair
not directly affect the stratospheric estimates withdrawing subpart F provisions to non-exempt substitutes
ozone layer. regulations of non-exempt substitute and rescinding the extension of all
EPA is also taking comment whether refrigerants to result in additional Subpart F provisions to non-exempt
the agency should rescind the entire foregone annual GHG emissions substitutes.
TABLE 2—SUMMARY OF ANNUAL COSTS AND BENEFITS WITH 7% AND 3% DISCOUNT RATES
[2014$]
Rescinding extension of leak repair provisions to non-ex- Rescinding extension of all Subpart F provisions to
empt substitutes non-exempt substitutes
7% Discount rate 3% Discount rate 7% Discount rate 3% Discount rate
Burden Reduction .............. $38,958,000 ....................... $35,264,000 ....................... $43,014,000 ....................... $39,320,000
Refrigerant Replacement ¥$14,874,000 ................... ¥$14,874,000 ................... ¥$14,874,000 ................... ¥$14,874,000
Cost.
Forgone Emissions Reduc- 2.946 MMTCO2e ................ 2.946 MMTCO2e ................ 3.603 MMTCO2e ................ 3.603 MMTCO2e
tions.
Annual Cost Savings ......... $24,084,000 ....................... $20,390,000 ....................... $28,140,000 ....................... $24,446,000
Additional information on these repaired, and maintain related including, but not limited to, leak repair
analyses can be found in Section III of documentation to verify compliance. requirements—to cover non-exempt
this document and the technical support Although the 2016 Rule took effect on substitute refrigerants. Honeywell
document in the docket. January 1, 2017, it included later International Inc. submitted a document
compliance dates for some of the styled as a response to APF’s petition
II. The Proposed Rule
revised regulations, including the leak for reconsideration, which is also
A. History of the Extension of the repair provisions. Under the 2016 Rule, available in the docket for this action.
Subpart F Requirements to Non-Exempt owners and operators of appliances that
Substitutes B. Legal Background
contain 50 or more pounds of refrigerant
On November 18, 2016, EPA must comply with these revised The discussion of EPA’s statutory
published a rule updating existing appliance maintenance and leak repair authority to extend refrigerant
refrigerant management requirements provisions beginning January 1, 2019. management requirements to non-
and extending the full set of the subpart Two industry coalitions, National exempt substitute refrigerants in the
F refrigerant management requirements, Environmental Development 2016 Rule focused primarily on CAA
which prior to that rule applied only to Association’s Clean Air Project (NEDA/ section 608, especially on sections
ODS refrigerants,9 to non-exempt CAP) and the Air Permitting Forum 608(c) and 608(a). See generally 81 FR
substitute refrigerants, such as HFCs (APF), filed petitions for judicial review 82284–82288.
and HFOs (81 FR 82272). As such, as of the 2016 Rule in the U.S. Court of Section 608(a) requires EPA to
part of the 2016 Rule, EPA extended the Appeals for the District of Columbia establish standards and requirements
‘‘appliance maintenance and leak Circuit, and the cases have been regarding use and disposal of class I and
repair’’ provisions, currently codified at consolidated. See NEDA/CAP v. EPA, class II substances. With regard to
40 CFR 82.157, to appliances that No. 17–1016 (D.C. Cir. filed January 17, refrigerants, EPA is to promulgate
contain 50 or more pounds of non- 2017); APF v. EPA, No. 17–1017 (D.C. regulations establishing standards and
exempt substitute refrigerant. Included Cir. filed January 17, 2017). The requirements for the use and disposal of
in the leak repair provisions are Chemours Company, Honeywell class I and class II substances during the
requirements to conduct leak rate International Inc., the Natural Resources service, repair, or disposal of air-
calculations when refrigerant is added Defense Council, and the Alliance for conditioning and refrigeration
to an appliance, repair an appliance that Responsible Atmospheric Policy are appliances or IPR. Regulations under
leaks above the threshold leak rate participating as intervenor-respondents section 608(a) are to include
applicable to that type of appliance, in that litigation, in support of the 2016 requirements to reduce the use and
conduct verification tests on repairs, Rule. In addition, APF has filed a emission of ODS to the lowest
conduct periodic leak inspections on petition with EPA for administrative achievable level, and to maximize the
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appliances that have exceeded the reconsideration of the 2016 Rule. The recapture and recycling of such
threshold leak rate, report to EPA on petition for reconsideration is available substances. Section 608(a) further
chronically leaking appliances, retrofit in the docket for this action and raises provides that ‘‘[s]uch regulations may
or retire appliances that are not several issues regarding changes made include requirements to use alternative
9 The only subpart F requirements that applied to
in the 2016 Rule, including EPA’s substances (including substances which
substitute refrigerants prior to the 2016 Rule were
statutory authority for its decision in the are not class I or class II substances) or
the venting prohibition and certain exemptions 2016 Rule to expand the scope of the to minimize use of class I or class II
from that, as set forth in § 82.154(a). refrigerant management requirements— substances, or to promote the use of safe
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alternatives pursuant to section [612] or substances and reduce the use and reasoned explanation. The CAA
any combination of the foregoing.’’ emission of such substances primarily complements EPA’s inherent authority
Section 608(c) establishes a self- under section 608(a). Section 608(a) to reconsider prior rulemakings by
effectuating prohibition, commonly expressly requires EPA to issue providing the Agency with broad
called the ‘‘venting prohibition.’’ 10 regulations that apply to class I and authority to prescribe regulations as
Section 608(c)(1), effective July 1, 1992, class II substances, but does not necessary in CAA section 301(a). The
makes it unlawful for any person in the expressly address whether EPA could authority to reconsider prior decisions
course of maintaining, servicing, establish the same refrigerant exists in part because EPA’s
repairing, or disposing of an appliance management practices for substitute interpretations of statutes it administers
or IPR to knowingly vent, release, or substances. On the other hand, section ‘‘[are not] instantly carved in stone,’’ but
dispose of any ODS used as a refrigerant 608(c)(2) explicitly mentions substitute must be evaluated ‘‘on a continuing
in such equipment in a manner that refrigerants and directly applies the basis.’’ Chevron U.S.A. Inc. v. NRDC,
permits that substance to enter the provisions for ODS refrigerants in Inc., 467 U.S. 837, 863–64 (1984). This
environment. Section 608(c)(1) also section 608(c)(1) to them. is true when, as is the case here, review
includes an exemption from this In the 2016 Rule EPA grounded its is undertaken ‘‘in response to . . . a
prohibition for ‘‘[d]e minimis releases authority for the extension of refrigerant change in administrations.’’ National
associated with good faith attempts to requirements to non-exempt substitute Cable & Telecommunications Ass’n v.
recapture and recycle or safely dispose’’ refrigerants largely on section 608(c), Brand X internet Services, 545 U.S. 967,
of such a substance. Section 608(c)(2) which EPA interpreted to provide it 981 (2005). Indeed, ‘‘[a]gencies
states that, effective November 15, 1995, authority to promulgate regulations that obviously have broad discretion to
‘‘paragraph (1) shall also apply to the interpret, explain, and enforce the reconsider a regulation at any time.’’
venting, release, or disposal of any venting prohibition and the de minimis Clean Air Council v. Pruitt, 862 F.3d 1,
substitute substance for a class I or class exemption as they apply to non-exempt 8–9 (D.C. Cir. 2017). Similarly, the fact
II substance by any person maintaining, substitute refrigerants. See 81 FR that an agency has previously adopted
servicing, repairing, or disposing of an 82283–82284. In reaching this one interpretation of a statute does not
appliance or [IPR] which contains and interpretation, EPA relied in part on a preclude it from later exercising its
uses as a refrigerant any such substance, policy rationale that by establishing a discretion to change its interpretation.
unless the Administrator determines comprehensive and consistent National Cable & Telecommunications
that venting, releasing, or disposing of framework that applies to both ODS and Ass’n, 545 U.S. at 981.
such substance does not pose a threat to non-exempt substitute refrigerants, the In accordance with the
the environment.’’ EPA interprets 2016 Rule would provide clarity to the Administrator’s statement in the August
section 608(c)(2)’s extension of section regulated community concerning the 10, 2017 letter that EPA planned to
608(c)(1) to substitute refrigerants to measures that should be taken to issue a proposed rule to revisit aspects
extend both the prohibition on venting comply with the venting prohibition for of the 2016 Rule’s extension of the
and the de minimis exemption to non- non-exempt substitutes and would thus subpart F refrigerant management
exempt substitute refrigerants. This is a reduce confusion and enhance requirements to non-exempt substitutes,
long-held position and EPA is not compliance for both ODS and non- EPA has reassessed its decision to
proposing to revisit it. See, e.g., 69 FR exempt substitutes. EPA further extend those requirements to non-
11949 (March 12, 2004); 70 FR 19274– explained its view in the 2016 Rule that exempt substitutes and the
19275 (April 13, 2005). the extension of requirements under interpretations supporting that
In the 2016 Rule, EPA interpreted section 608 to non-exempt substitutes extension. The main considerations
section 608 of the CAA as being was also supported by section 608(a) leading to the Agency’s decision to
ambiguous with regard to EPA’s because having a consistent regulatory reassess the 2016 Rule’s extension of
authority to establish refrigerant framework for non-exempt substitutes subpart F requirements to non-exempt
management regulations for non-exempt and ODS is expected to reduce substitute refrigerants are questions
substitute refrigerants because Congress emissions of ODS refrigerants, as well as about whether extending the full set of
had not precisely spoken to this issue. non-exempt substitutes. In addition, subpart F requirements exceeded EPA’s
Accordingly, EPA took the view that it EPA located supplemental authority for statutory authority under CAA section
had the discretion under Chevron, the 2016 Rule in section 301(a), which 608. The subpart F requirements,
U.S.A., Inc. v. Natural Res. Def. Council, provides authority for EPA to ‘‘prescribe including the leak repair requirements,
Inc., 467 U.S. 837, 843–44 (1984), to such regulations as are necessary to were originally established for ODS
interpret section 608 as providing EPA carry out [the EPA Administrator’s] based primarily on authority under CAA
with authority to extend all aspects of functions’’ under the Act. Id. Further, section 608(a). Sections 608(a)(1) and (2)
EPA located supplemental authority to explicitly require EPA to regulate ODS
its refrigerant management regulations
extend the recordkeeping and reporting but make no mention of substitutes.
under section 608 to non-exempt
requirements to non-exempt substitutes Section 608(c)(2) does expressly
substitute refrigerants, including those
in section 114, which provides authority mention substitute refrigerants.
regulations that had previously only
to the EPA Administrator to require However, that provision focuses on
applied to ODS refrigerants. See 81 FR
recordkeeping and reporting in carrying prohibiting knowing releases of
82283. The 2016 Rule explained that
out provisions of the CAA. Id. substitute refrigerants in the course of
EPA had established the subpart F
maintenance, service, repair, and
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standards for the proper handling of C. EPA’s Authority To Revisit Existing disposal activities and on providing an
ODS refrigerants during service, repair, Regulations and Interpretations exemption for de minimis releases.
or disposal of an appliance to maximize EPA’s ability to revisit existing Thus, the structure of section 608,
the recovery and/or recycling of such regulations is well-grounded in the law. specifically the inclusion of the term
10 In this context, EPA uses the term ‘‘self-
Specifically, EPA has inherent authority ‘‘substitutes’’ in section 608(c) but not
effectuating’’ to mean that the statutory prohibition
to reconsider, repeal, or revise past section 608(a), contrasted with the
on venting is itself legally binding even in the decisions to the extent permitted by law express references to ODS (class I and
absence of implementing regulations. so long as the Agency provides a class II substances) in both subsections,
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suggests that EPA’s authority to address interpretations that supported the 2016 608(c) does explicitly apply to
substitutes under section 608 is more Rule. Specifically, EPA is proposing to substitute refrigerants, but that
limited than its authority to address conclude that the extension of the leak subsection leaves EPA discretion as to
ODS. If Congress had intended to repair requirements in § 82.157 to non- whether to promulgate regulations
convey authority to EPA to promulgate exempt substitute refrigerants exceeds implementing its provisions. In light of
the same, full set of refrigerant EPA’s legal authority and furthermore is these differences in wording between
management requirements for not necessary to fulfill the purposes of 608(a) and 608(c), EPA is proposing to
substitutes as for ODS, it is reasonable section 608(a). EPA proposes to conclude that the 2016 Rule exceeded
to expect that Congress would have conclude that these changes in the agency’s authority under section 608
expressly included substitutes in interpretations are appropriate by extending the full set of the subpart
section 608(a), as it did for section interpretations of sections 608(a) and (c) F requirements to substitutes.
608(c)—but it did not. On the other in light of the statutory text, context, Specifically, EPA believes that the
hand, section 608(a) requires the and EPA’s historical views. With regard extension of the leak repair
Agency to issue regulations that reduce to section 608(a), EPA is also taking requirements to non-exempt substitute
the use and emission of ODS to the comment on an alternative legal refrigerants exceeded its authority. To
lowest achievable level and maximize interpretation under which the agency justify the extension of the leak repair
the recapture and recycling of such would not rely on section 608(a) for any requirements to non-exempt substitute
substances. While section 608(a) extension of the refrigerant management refrigerants in the 2016 Rule, EPA
contains discretionary language about regulations to substitute refrigerants. reversed its longstanding position that
what requirements those regulations In light of EPA’s proposed legal ‘‘topping off’’ leaking appliances was
may include, it does not contain any interpretations, EPA’s proposal for not venting or a knowing release of
more specific mandates about how the amending the 2016 Rule is to rescind refrigerant in the course of maintaining,
required objectives should be achieved. the extension of the leak repair servicing, repairing, or disposing of an
To the extent that the extension of requirements to non-exempt substitutes, appliance within the meaning of section
certain subpart F requirements to non- while retaining the extension of the 608(c). Prior to the 2016 Rule, EPA’s
exempt substitutes is necessary to remaining subpart F requirements. EPA position had been that refrigerant
reduce the use and emission of ODS to is also requesting comment on whether released during the use of an appliance
the lowest achievable level or to the agency should rescind the entire is not subject to the venting prohibition.
maximize the recapture and recycling of extension of the subpart F requirements When establishing the original leak
such substances, EPA is proposing to to non-exempt substitutes. These points, repair provisions, EPA in 1993 stated
conclude, as in the 2016 Rule, that such and EPA’s proposed legal that:
an extension would be authorized by interpretations, are discussed further [T]he venting prohibition itself, which
section 608(a). In addition, EPA believes below in the context of specific applies to the maintenance, service, repair,
that section 608(c) is reasonably authority under sections 608(c) and (a), and disposal of equipment, does not prohibit
construed as providing the Agency respectively. ‘topping off’ systems, which leads to
discretionary authority to interpret and emissions of refrigerant during the use of
apply the venting prohibition and the de D. Authority Under CAA § 608(c) To equipment. The provision on knowing
minimis exemption, as they are Extend Refrigerant Management releases does, however, include the situation
Provisions to Non-Exempt Substitute in which a technician is practically certain
expressly incorporated as relating to that his or her conduct will cause a release
substitutes under section 608(c)(2). Refrigerants
of refrigerant during the maintenance,
However, EPA believes that its statutory EPA is proposing to change aspects of service, repair, or disposal of equipment.
authority under section 608, taking that the interpretation of CAA section 608(c) Knowing releases also include situations in
authority as a whole, does not extend as that it adopted in the 2016 Rule. Under which a technician closes his or her eyes to
far with respect to substitutes as it does the interpretation proposed in this obvious facts or fails to investigate them
with respect to ODS, and specifically action, the Agency exceeded its when aware of facts that demand
investigation. [58 FR 28672.]
believes that section 608 is ambiguous statutory authority under section 608(c)
with respect to the extent to which, if in the 2016 Rule by extending the leak In the 2016 Rule, EPA changed the
at all, Congress authorized EPA to issue repair (§ 82.157) requirements to Agency’s interpretation of the venting
refrigerant management regulations for appliances that use only substitute prohibition as part of the rationale that
substitutes. refrigerants. supported applying the leak repair
In light of these considerations, the As in prior actions under section 608, requirements, originally issued under
Agency has re-examined its authority EPA continues to interpret section CAA section 608(a), to non-exempt
for aspects of the 2016 Rule. In 608(c) to provide it some authority to substitute refrigerants. EPA stated in the
particular, EPA has carefully reviewed interpret, explain, and enforce the 2016 Rule that it:
the specific requirements under subpart venting prohibition and the de minimis
F that were extended to non-exempt exemption, as these are both provisions include requirements to use alternative substances
substitute refrigerants and evaluated in a statutory regime that EPA is (including substances which are not class I or class
II substances), . . . or to promote the use of safe
whether those extensions were within entrusted to administer. However, EPA alternatives pursuant to section [612].’’ (In
the scope of EPA’s statutory authority also recognizes that sections 608(a) and implementing Title VI, EPA has at times used the
under sections 608(a) and 608(c). 608(c) differ from one another in some terms ‘‘alternative’’ and ‘‘substitute’’
While EPA believes the scope of its key respects, including the fact that interchangeably. See, e.g., 81 FR 86779, n.1; 81 FR
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authority for substitutes under section 82276, 82291.) EPA is not relying upon these
608(a)(1) and (2) expressly require EPA provisions in 608(a)(3) in this document, as the
608 is narrower than that for ODS, EPA to issue regulations for class I and class proposed regulatory changes do not relate to
maintains that section 608 is ambiguous II substances, but include no such requirements to use substitutes or promote their use
with respect to the extent of its requirement for (or, indeed, any pursuant to section 612. Furthermore, EPA did not
authority to apply refrigerant rely on these authorities in 608(a)(3) in extending
mention of) substitutes.11 In contrast, the refrigerant management requirements to
management requirements to non- substitute refrigerants in the 2016 Rule, and is not
exempt substitute refrigerants. EPA is 11 Section 608(a)(3) does provide that the relying on them in addressing the underlying
proposing to change some of the regulations issued under section 608(a) ‘‘may questions of statutory interpretation at issue here.
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![49338 Federal Register / Vol. 83, No. 190 / Monday, October 1, 2018 / Proposed Rules
concludes that its statements in the 1993 EPA has recognized that refrigeration venting prohibition for non-exempt
Rule presented an overly narrow and air-conditioning equipment often substitute refrigerants. In contrast to the
interpretation of the statutory venting does leak, and that ‘‘[t]his is particularly leak repair requirements, the other
prohibition. Consistent with the direction likely for larger and more complicated provisions of subpart F that EPA
articulated in the proposed 2010 Leak Repair
Rule, EPA is adopting a broader
appliances like those subject to the extended to non-exempt substitute
interpretation. When refrigerant must be subpart F leak repair provisions.’’ (81 refrigerants in the 2016 Rule relate
added to an existing appliance, other than FR 82313). Therefore, the leak repair directly to emissions that necessarily
when originally charging the system or for a provisions apply to activities that are occur in the course of maintaining,
seasonal variance, the owner or operator too distinct from the activities identified servicing, repairing, or disposing of an
necessarily knows that the system has leaks. in section 608(c) to provide EPA with appliance. Accordingly, those
At that point the owner or operator is regulatory authority to extend the leak provisions directly address the potential
required to calculate the leak rate. If the leaks repair regulations to non-exempt for knowing releases of non-exempt
exceed the applicable leak rate for that substitute refrigerants. substitute refrigerants that would be
particular type of appliance, the owner or
EPA notes that under the proposed within the scope of section 608(c)(2).
operator will know that absent repairs,
subsequent additions of refrigerant will be revisions to its interpretation discussed Moreover, prior to the 2016 Rule, EPA
released in a manner that will permit the in this document, the venting had long recognized connections
refrigerant to enter the environment. prohibition under section 608(c) would between other subpart F requirements
Therefore, EPA interprets section 608(c) such continue to apply to actions taken in the and the potential for releases to occur
that if a person adds refrigerant to an course of maintaining, servicing, during appliance maintenance, service,
appliance that he or she knows is leaking, he repairing, or disposing of appliances repair or disposal, and continues to do
or she also violates the venting prohibition containing non-exempt substitute so. For example, failure to properly
unless he or she has complied with the refrigerant, including those containing evacuate an appliance (§ 82.156 and
applicable practices referenced in
50 or more pounds of such refrigerant. § 82.158) before opening it for servicing
§ 82.154(a)(2), as revised, including the leak
repair requirements, as applicable. [81 FR For example, knowing release from will create the practical certainty that
82285.] cutting refrigerant lines when disposing the refrigerant in the appliance will be
of an appliance is prohibited. Similarly, released during the servicing event. EPA
EPA is proposing to conclude that this opening an appliance to repair a required that recovery and/or recycling
2016 interpretation exceeds the scope of component without first isolating it and equipment be tested and certified by an
the Agency’s authority under section recovering the refrigerant would EPA-approved laboratory or
608(c)(2). The agency is therefore typically lead to a knowing release of organization ‘‘[i]n order to ensure that
proposing to return to the interpretation refrigerant to the environment. It is also recycling and recovery equipment on
used prior to the 2016 Rule.12 First, the possible that some ‘‘topping off’’ may the market is capable of limiting
2016 interpretation is based on a occur in an appliance with a leak that emissions.’’ (58 FR 28682).
strained reading of section 608(c)(2) is so visible, audible, or frequent that
because the refrigerant releases from Similarly, disposing of the appliance
adding refrigerant to the appliance without removing the refrigerant
such leaks typically occur during the creates the practical certainty that the
normal operation of the appliance, (§ 82.155) will result in the release of
refrigerant will be released any remaining refrigerant during
rather than ‘‘in the course of contemporaneously with the servicing
maintaining, servicing, repairing, or disposal of the appliance. EPA
event and therefore may constitute a acknowledged this when finalizing the
disposing of ’’ an appliance. The knowing release. For example, hearing
operational leaks that trigger the leak safe disposal requirements in 1993,
hissing or noticing a ruptured line while writing: ‘‘The Agency wishes to clarify
repair provisions may take the form of continuing to add refrigerant to an
a slow leak that results in the need to that the prohibition on venting
appliance would constitute a knowing refrigerant includes individuals who are
add refrigerant and that occurs in the release. However, EPA does not believe
weeks or months prior to the servicing preparing to dispose of a used
this occurs in a substantial number of appliance.’’ (58 FR 28703). EPA
event. Leaks may also result from an situations, and thus does not believe
unintended catastrophic failure, which established the reclamation requirement
that the possibility of such an event for used refrigerant to prevent
leads to a subsequent service event to justifies a blanket interpretation that
recharge the appliance. While section equipment damage from dirty
‘‘topping off’’ an appliance that has refrigerant and ensure a market for
608(c)(2) applies to the release of leaked, absent adherence to the leak
substitute refrigerants in ‘‘the course of recovered refrigerants, both of which
repair requirements at § 82.157, is minimize knowingly venting or
maintaining, servicing, repairing, or necessarily and per se a violation of
disposing of an appliance,’’ neither of releasing of refrigerant during appliance
608(c). maintenance, servicing, repair, and
those types of leaks typically occur in EPA is proposing to remove the
the course of maintaining, servicing, disposal. (58 FR 28678). With respect to
extension of the leak repair the sales restriction and technician
repairing, or disposing of an appliance. requirements to non-exempt substitute
Moreover, EPA has always understood certification requirements, EPA stated
refrigerants as exceeding its authority, that ‘‘unrestricted sales will enable
that few appliances are leak-free, which but to retain the other provisions of
further supports the notion that leaks untrained or undertrained technicians
subpart F as appropriate measures to to obtain access to refrigerants that are
frequently occur during normal implement, explain, and enforce the
operation of an appliance.13 Further, likely to be used improperly in
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connection with servicing activities that
periodic leak inspections of appliances with 50 or
12 The 2010 leak repair proposal (75 FR 78558) more pounds of refrigerant that had been repaired
will result in the venting of refrigerants’’
was not finalized. As noted in the 2016 Rule (81 after leaking above the applicable threshold rate. (58 FR 28698) and that ‘‘[e]ducating
FR 82275), EPA withdrew the 2010 proposal in the Automatic leak detection equipment is also allowed technicians on how to contain and
2016 rulemaking and re-proposed elements of the in lieu of inspections for such appliances, or conserve refrigerant effectively,
2010 proposal in the notice of proposed rulemaking portions of such appliances. This proposal, if
(80 FR 69461) for the 2016 Rule. finalized, would rescind this requirement for
curtailing illegal venting into the
13 Recognizing that appliances can leak during appliances containing only non-exempt substitute atmosphere’’ was one of the primary
their normal operation, 40 CFR 82.157(g) requires refrigerant. reasons many technicians commented
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in support of the certification program. extension is an appropriate use of its provisions as they relate to substitutes
(58 FR 28691). Accordingly, as part of discretion under section 608(c). Such under the 2016 Rule and how that
EPA’s proposal, the agency would action would allow the Agency to interest would be affected by the
conclude that the 2016 Rule’s extension consider and potentially develop proposed changes discussed above.
of the other, non-leak-repair options not discussed in this proposed
E. Authority Under CAA § 608(a) To
requirements under subpart F to non- rule. If EPA were to decide that a full
Extend Refrigerant Management
exempt substitute refrigerants is within withdrawal of the extension is prudent,
Provisions to Non-Exempt Substitute
the scope of EPA’s authority under CAA the prohibitions under section 608(c)
section 608(c)(2), because those other would continue to apply directly to any Refrigerants
requirements implement that knowing release of non-exempt As noted above, EPA concluded in the
provision’s venting prohibition. substitute refrigerant in the course of 2016 Rule that it had supplemental
While EPA continues to believe that maintaining, servicing, repairing, or authority under section 608(a) to extend
it has authority to implement, explain, disposing of an appliance. the subpart F requirements to non-
and enforce the venting prohibition and For the reasons discussed above in exempt substitutes:
the exemptions in 608(c) for non- this section, EPA is specifically This action extending the regulations
exempt substitute refrigerants, as requesting comment on whether to under subpart F to non-exempt substitutes is
explained above, it is proposing to retain the non-leak repair requirements additionally supported by the authority in
conclude that the extension of the full in the final rule or whether to rescind section 608(a) because regulations that
set of the subpart F requirements to the entirety of the 2016 Rule’s extension minimize the release and maximize the
appliances using only substitute of the subpart F requirements to non- recapture and recovery of non-exempt
refrigerant exceeded its legal authority exempt substitutes. Included in the substitutes will also reduce the release and
increase the recovery of ozone-depleting
under section 608(c). As explained docket for this action is a version of the substances. Improper handling of substitute
above, it is proposing to rescind the regulatory text in subpart F with red- refrigerants is likely to contaminate
extension of subpart F’s leak repair line strikeout showing the types of appliances and recovery cylinders with
requirements to appliances using only revisions to subpart F that the Agency mixtures of ODS and non-ODS substitutes,
non-exempt substitute refrigerants. EPA is considering making, should it decide which can lead to illegal venting because
is also seeking comments on whether to finalize a full withdrawal of the 2016 such mixtures are difficult or expensive to
the agency should instead withdraw the Rule’s extension of the refrigerant reclaim or appropriately dispose of . . . . In
entire extension of subpart F management requirements to non- short, the authority to promulgate regulations
regarding the use of class I and II substances
requirements to non-exempt substitute exempt substitutes. Additional encompasses the authority to establish
refrigerants in the 2016 Rule given its information on the costs and benefits of regulations regarding the proper handling of
proposed interpretation. Section 608(c) rescinding that entire extension is found substitutes where this is needed to reduce
does not expressly require EPA to issue in Section III of this document and the emissions and maximize recapture and
regulations, nor does it contain specific technical support document in the recycling of class I and II substances.
deadlines or requirements for any rules docket. If EPA were to rescind the Applying consistent requirements to all non-
that EPA might promulgate under that extension in full through this exempt refrigerants will reduce complexity
authority. Accordingly, EPA has rulemaking, it would likely give and increase clarity for the regulated
community and promote compliance with
substantial discretion in issuing subsequent consideration to whether those requirements for ODS refrigerants, as
regulations under section 608(c) and the some subset of the subpart F well as their substitutes. [81 FR 82286.]
timing of any such regulations. Given requirements, a different set of
that discretion, EPA could conclude that requirements, or some combination of In reviewing the legal interpretation
a full withdrawal of the extension of the two, would be an appropriate means of 608(a) that supported the 2016 Rule,
subpart F requirements to non-exempt of implementing the venting prohibition EPA has further examined the
substitute refrigerants is appropriate and for substitutes. Such consideration connection between the purposes of
warranted at this time. Such an could result in a new proposal following section 608(a) and the 2016 Rule’s
approach could be reasonable in light of final action on this current proposal. extension of subpart F refrigerant
the questions as to EPA’s legal authority EPA requests comment on the management requirements to non-
for that extension. For example, if EPA proposed changes discussed above, exempt substitute refrigerants. After
were to conclude that interpreting including the proposed changes in further consideration of this issue, EPA
section 608(c) to authorize the same full interpretation of section 608(c). EPA believes that the statements in the
set of requirements as 608(a) for also welcomes comment on whether preamble to the 2016 Rule, which were
refrigerants renders 608(a) superfluous section 608(c) provides authority to advanced generally and without
with respect to refrigerants 14 and that promulgate a set of leak repair distinction to support extending all the
this structural issue raises critical provisions, or refrigerant management subpart F requirements to non-exempt
uncertainties as to the extent to which requirements generally, for non-exempt substitute refrigerants, failed to
EPA should replicate 608(a) substitutes that may be different from recognize that particular requirements
requirements under 608(c), EPA could the ones currently found in subpart F, may have a greater or lesser connection
decide that a full withdrawal of the to meet the purposes of that section to the purposes of section 608(a) when
while minimizing overlap with applied to non-exempt substitute
14 While section 608(c) only addresses requirements authorized under section refrigerants. Accordingly, EPA is
refrigerants, whether ODS or substitutes, section 608(a). Additionally, EPA requests proposing to conclude that the
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608(a) is not limited to refrigerants. In fact, EPA has comment on the practical connection between applying the leak
applied its authority under section 608(a) to
establish or consider regulations for ODS in non-
considerations of implementing the repair requirements to appliances with
refrigerant applications. For example, in 1998, EPA venting prohibition for substitutes in a only substitute refrigerants and the
issued a rule on halon management under the manner that is different from ODS. reduction in emissions of ODS is too
authority of section 608(a)(2). (63 FR 11084). Lastly, EPA requests comment on tenuous to support reliance on CAA
Accordingly, when considering potential issues
arising from interpretations of section 608(c) to
whether stakeholders may have a section 608(a) as a basis for authority to
authorize the same requirements as 608(a), it is reliance interest in either the leak repair extend the leak repair requirements to
appropriate to focus on refrigerants. provisions or the other subpart F non-exempt substitutes.
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This may be particularly true when appliances. However, in that discussion, 608(a).16 This interpretation, if adopted,
the leak repair provisions are compared EPA did not address whether, if all would lead to the conclusion that
to the other provisions of subpart F. The other subpart F requirements were section 608(a) cannot provide a basis for
2016 Rule also identified several extended to non-exempt substitutes, it extending any of subpart F’s refrigerant
scenarios where failure to apply would be necessary to also extend management requirements to substitute
consistent standards to appliances § 82.157 to non-exempt substitute refrigerants.17
containing non-exempt substitute refrigerants. EPA is proposing to EPA requests comment on the
refrigerants could arguably lead to withdraw the extension of the subpart F proposed changes discussed in this
emissions of ODS. For example, provisions related to leak repair for non- section, including the proposed changes
improper handling of non-exempt exempt substitute refrigerants. Other in interpretation of section 608(a) so as
substitute refrigerants by persons elements of the 608 program such as the to remove support for the extension of
lacking the requisite training may refrigerant sales restriction, technician the leak repair requirements in § 82.157
contaminate appliances and recovery certification, reclamation standards, and to non-exempt substitute refrigerants.
cylinders with mixtures of ODS and evacuation standards would continue to EPA also requests comment on the
non-ODS substitutes. Contaminated apply to non-exempt substitute frequency of appliances being
appliances may lead to equipment refrigerants if this proposal is finalized. contaminated by mixtures of ODS and
failures and emissions from those If these other subpart F requirements substitute refrigerants, and the resulting
systems, including emissions of ODS. continue to apply, such that, for equipment damage. Further, EPA
Because contaminated cylinders may be example, the regulations only permit requests comment on whether the
more costly to recycle they may simply certified technicians to service agency should conclude that it could
be destroyed. The costs of handling or equipment regardless of whether it not rely on section 608(a) for any
properly disposing of these mixed contains ODS or non-exempt authority to extend subpart F
refrigerants may incentivize intentional substitutes, those requirements could requirements to substitutes. If EPA were
releases to the atmosphere. Therefore, also reduce the incidence of failure to to reach such a conclusion, EPA would
contamination can lead to the release of follow the requirements for ODS rely solely on section 608(c) for the
class I and class II substances. appliances. By contrast, it is unclear extension of the non-leak repair subpart
Maintaining the sales restriction and how application specifically of the leak F requirements to non-exempt
technician certification requirement for repair requirements to non-exempt substitutes, or alternatively, would
non-exempt substitute refrigerants may substitute refrigerants would lead to withdraw the entire extension. As noted
reduce the possibility that refrigerant in additional reductions in ODS emissions previously, the docket contains a
the appliances will be misidentified by if those other requirements are applied version of the regulatory text showing
an uncertified person attempting to to non-exempt substitutes. Thus, insofar the types of revisions to subpart F that
service the appliance, which in turn as the 2016 Rule was grounded in an the Agency is considering making
reduces the possibility that argument that section 608(a) supports should it decide to finalize a full
contamination and subsequent the extension of the leak repair withdrawal of the 2016 Rule’s extension
refrigerant releases may occur. provisions to non-exempt substitute of the refrigerant management
Maintaining reclamation standards may refrigerants, EPA is proposing to requirements to non-exempt substitutes.
ensure that used refrigerant is not withdraw that interpretation. In addition, EPA welcomes comment on
contaminated when it reenters the EPA is also seeking comment on whether section 608(a) provides
market for use and may reduce whether, as a matter of statutory authority to promulgate a set of leak
emissions associated with the mixing of interpretation, the agency can rely on repair provisions, or refrigerant
refrigerants and equipment damage. section 608(a) for the issuance of any of management requirements generally, for
EPA solicits comment and any data or the subpart F requirements for non-exempt substitutes that may be
analysis commenters may have substitute refrigerants, even those for different from the ones currently found
regarding these scenarios, their which there is demonstrably a in subpart F. If the Agency were to
frequency, and their emissions effects. connection between the regulatory decide to pursue a different approach
In contrast, requiring the repair of
requirement and the purposes of section than one of the two potential outcomes
appliances using only substitute
608(a) to reduce use and emission of discussed in detail in this proposed
refrigerants would reduce emissions
class I and II substances to the lowest rule—the proposed action, rescinding
from those particular appliances, but is
achievable levels and maximize the the 2016 Rule’s extension of the leak
unlikely to independently reduce cross-
recapture and recycling of such repair requirements to non-exempt
contamination, refrigerant mixing, or
substances. As noted above, in section
releases from an ODS appliance. The
608(a) Congress specifically required 16 This interpretation would not affect EPA’s
response to comments for the 2016 discretionary authority to ‘‘include requirements to
EPA to issue regulations for class I and
Rule 15 did note, in the context of use alternative substances (including substances
class II substances that would meet which are not class I or class II substances) . . . or
explaining EPA’s authority for the
certain statutory purposes set forth in to promote the use of safe alternatives pursuant to
revisions to 40 CFR 82.157, that
that section. But Congress did not list section [612]’’ in regulations under section 608(a),
providing a consistent standard for ODS as these authorities are expressly mentioned in
substitutes for coverage by those
and non-exempt substitute refrigerants section 608(a)(3). As discussed at n.11, supra, EPA
requirements. In contrast, section 608(c) did not rely on these authorities in 608(a)(3) in
would reduce emissions of ODS by
does expressly extend requirements to extending the refrigerant management requirements
reducing the incidence of failure to
amozie on DSK3GDR082PROD with PROPOSALS1
substitute refrigerants. This difference to substitute refrigerants in the 2016 Rule, and is
follow the requirements for ODS not relying on them in this proposal or in
between section 608(a) and 608(c) could
addressing the underlying questions of statutory
15 Response to Comments for the Notice of be interpreted as a manifestation of interpretation at issue here.
Proposed Rulemaking: Protection of Stratospheric Congressional intent to distinguish 17 Some commenters on the 2016 Rule pointed
Ozone: Update to the Refrigerant Management between the categories of substances out that Congress specifically listed class I and class
Requirements under the Clean Air Act, pages 13– covered in these respective provisions II substances for coverage under the regulations
14 (pdf pages 18–19). Available at: https:// required by section 608(a) and contended that those
www.regulations.gov/document?D=EPA-HQ-OAR-
and to only convey authority to address regulations could not be applied to refrigerants that
2015-0453-0226. substitute refrigerants under 608(c), not are neither class I nor class II substances.
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![49344 Federal Register / Vol. 83, No. 190 / Monday, October 1, 2018 / Proposed Rules
new regulatory requirements. It is J. National Technology Transfer and requirements of this section do not
deregulatory in that it proposes to Advancement Act (NTTAA) apply to appliances containing solely
remove required leak repair and This rulemaking does not involve substitute refrigerants. Unless otherwise
maintenance practices and associated technical standards. specified, the requirements of this
recordkeeping for appliances containing section apply to the owner or operator
non-exempt substitute refrigerant. This K. Executive Order 12898: Federal of the appliance.
document also seeks comments on Actions To Address Environmental * * * * *
withdrawal of additional refrigerant Justice in Minority Populations and [FR Doc. 2018–21084 Filed 9–28–18; 8:45 am]
management requirements for Low-Income Populations BILLING CODE 6560–50–P
appliances containing non-exempt EPA believes that it is not feasible to
substitute refrigerant. We have therefore quantify any disproportionately high
concluded that this action will relieve and adverse effects from this action on ENVIRONMENTAL PROTECTION
regulatory burden for directly regulated minority populations, low-income AGENCY
small entities. populations and/or indigenous peoples,
as specified in Executive Order 12898 40 CFR Part 86
E. Unfunded Mandates Reform Act
(59 FR 7629, February 16, 1994). [EPA–HQ–OAR–2017–0755; FRL–9984–54–
This action does not contain any OAR]
unfunded mandate as described in List of Subjects in 40 CFR Part 82
Environmental protection, Air RIN 2060–AT75
UMRA, 2 U.S.C. 1531–1538, and does
not significantly or uniquely affect small pollution control, Chemicals, Reporting
Light-Duty Vehicle GHG Program
governments. The action imposes no and recordkeeping requirements.
Technical Amendments
enforceable duty on any state, local or Dated: September 18, 2018.
tribal governments or the private sector. Andrew R. Wheeler, AGENCY: Environmental Protection
Agency (EPA).
F. Executive Order 13132: Federalism Acting Administrator.
ACTION: Proposed rule.
This action does not have federalism For the reasons set forth in the
implications. It will not have substantial preamble, the Environmental Protection SUMMARY: EPA is proposing two
direct effects on the states, on the Agency proposes to amend 40 CFR part technical corrections to the light-duty
relationship between the national 82 as follows: vehicle greenhouse gas (GHG) emissions
government and the states, or on the standards regulations finalized in the
PART 82—PROTECTION OF 2012 rulemaking that established
distribution of power and
STRATOSPHERIC OZONE standards for model years 2017–2025
responsibilities among the various
levels of government. light-duty vehicles. First, EPA proposes
■ 1. The authority citation for part 82
to correct regulations pertaining to how
G. Executive Order 13175: Consultation continues to read as follows:
auto manufacturers must calculate
and Coordination With Indian Tribal Authority: 42 U.S.C. 7414, 7601, 7671– credits for the GHG program’s optional
Governments 7671q. advanced technology incentives. The
This action does not have tribal ■ 2. Amend § 82.154 by revising regulations currently in place result in
implications as specified in Executive paragraph (a)(2)(i) to read as follows: auto manufacturers receiving fewer
Order 13175. It will not have substantial credits than the agency intended for
§ 82.154 Prohibitions. electric vehicles, plug-in hybrid electric
direct effects on tribal governments, on
(a) * * * vehicles, fuel cell electric vehicles, and
the relationship between the federal (2) * * *
government and Indian tribes, or on the natural gas fueled vehicles. Auto
(i) The applicable practices in manufacturers requested through a
distribution of power and § 82.155 and § 82.156 are observed, the
responsibilities between the federal petition letter submitted jointly by the
practices in § 82.157 are observed for Auto Alliance and Global Automakers
government and Indian tribes, as appliances that contain a class I or class
specified in Executive Order 13175. in June 2016 that EPA correct the
II refrigerant, recovery and/or recycling regulations to provide the intended
Thus, Executive Order 13175 does not machines that meet the requirements in
apply to this action. level of credits for these technologies.
§ 82.158 are used whenever refrigerant Second, the regulations regarding how
H. Executive Order 13045: Protection of is removed from an appliance, the manufacturers must calculate certain
Children From Environmental Health technician certification provisions in types of off-cycle credits contain an
Risks and Safety Risks § 82.161 are observed, and the error and are inconsistent with the 2012
reclamation requirements in § 82.164 final rule preamble, raising
This action is not subject to Executive are observed; or
Order 13045 because it is not implementation concerns for some
* * * * * manufacturers. The proposed
economically significant as defined in ■ 3. Amend § 82.157 by revising
Executive Order 12866. EPA has not amendments would clarify the
paragraph (a) to read as follows: calculation methodology in the
conducted a separate analysis of risks to
infants and children associated with § 82.157 Appliance maintenance and leak regulations. Both of these corrections
this proposed rule. repair. allow the program to be implemented as
amozie on DSK3GDR082PROD with PROPOSALS1
(a) Applicability. This section applies originally intended. The proposed
I. Executive Order 13211: Actions That corrections are not expected to result in
as of January 1, 2019. This section
Significantly Affect Energy Supply, any additional regulatory burdens or
applies only to appliances with a full
Distribution, or Use costs.
charge of 50 or more pounds of any
This action is not a ‘‘significant class I or class II refrigerant or blend DATES:
energy action’’ because it is not likely to containing a class I or class II Comments: Written comments must
have a significant adverse effect on the refrigerant. Notwithstanding the use of be received on or before October 31,
supply, distribution, or use of energy. the term refrigerant in this section, the 2018. If EPA receives a request for a
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Document Created: 2018-09-29 04:26:29
Document Modified: 2018-09-29 04:26:29
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Written comments must be received by November 15, 2018. EPA will hold a public hearing on or before October 16, 2018. The hearing will be held in Washington, DC. More details concerning the hearing can be found at www.epa.gov/section608. | |
| Contact | Jeremy Arling by regular mail: U.S. Environmental Protection Agency, Stratospheric Protection Division (6205T), 1200 Pennsylvania Avenue NW, Washington, DC 20460; by telephone: (202) 343-9055; or by email: [email protected] | |
| FR Citation | 83 FR 49332 | |
| RIN Number | 2060-AT81 | |
| CFR Associated | Environmental Protection; Air Pollution Control; Chemicals and Reporting and Recordkeeping Requirements |
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