[Federal Register Volume 59, Number 216 (Wednesday, November 9, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-27532]
[[Page Unknown]]
[Federal Register: November 9, 1994]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 82
Protection of Stratospheric Ozone; Refrigerant Recycling; Final Rule
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[FRL-5101-8]
RIN 2060-AF05
Protection of Stratospheric Ozone; Refrigerant Recycling
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is amending the
rules on refrigerant recycling promulgated under section 608 of the
Clean Air Act to clarify the conditions under which technician
certification programs will be grandfathered, allowing technicians who
had participated in voluntary technician training and certification
programs prior to the publication of the rule to receive formal
certification. EPA is also amending the rule to clarify the scope of
the technician certification requirement and to provide a limited
exemption from certification requirements for apprentices.
EFFECTIVE DATE: October 28, 1994.
ADDRESSES: Materials relevant to the rulemaking are contained in Air
Docket No. A-92-01 at: Environmental Protection Agency, 401 M Street,
S.W., Washington, D.C. 20460. The Air and Radiation Docket and
Information Center is located in room M-1500, Waterside Mall (Ground
Floor) Environmental Protection Agency, 401 M Street, S.W., Washington,
D.C. 20460. Dockets may be inspected from 8:00 a.m. to 5:30 p.m.,
Monday through Friday. A reasonable fee may be charged for copying
docket materials.
FOR FURTHER INFORMATION CONTACT: Debbie Ottinger, Program
Implementation Branch, Stratospheric Protection Division, Office of
Atmospheric Programs, Office of Air and Radiation (6205-J), 401 M
Street, S.W., Washington, D.C. 20460 (202-233-9200). The Stratospheric
Ozone Information Hotline at 1-800-296-1996 can also be contacted for
further information.
SUPPLEMENTARY INFORMATION:
I. Background
Final regulations published on May 14, 1993 (58 FR 28660) establish
a recycling program for ozone-depleting refrigerants recovered during
the servicing and disposal of air-conditioning and refrigeration
equipment. The regulations require technicians to observe practices
that minimize release of refrigerant to the environment. To ensure that
technicians become knowledgeable of these requirements, Sec. 82.161 of
the final rule mandates that technicians be certified by passing a
test. For Type II, Type III, and Universal technicians, the test must
be a closed-book, proctored examination drawn from a bank of test
questions kept by the Environmental Protection Agency (EPA) and
administered in a secure environment by an EPA-approved certifying
program. For Type I technicians, a mail-in program is permitted.
Testing and training organizations can apply to EPA to become EPA-
approved technician certifiers under Sec. 82.161(c) by demonstrating
that they can ensure test security, provide an adequate number of
proctors during the examination, select questions randomly from the
appropriate sections of the test bank, and provide proof of
certification to technicians who pass the exams. Testing and training
organizations must also demonstrate that they grade objectively and
keep adequate records. The specific requirements of the program are
presented in Sec. 82.161 and appendix D of the final rule. To date, EPA
has authorized over 90 organizations as technician certifying
organizations.
II. This Action
A. Grandfathering
Under Sec. 82.161(g), organizations that seek approval as
certifying organizations can also apply to grandfather technicians who
received training and testing under programs established prior to
publication of the final rule in May 1993, which established the
approval process for certification programs. Specifically,
Sec. 82.161(g) states:
Persons seeking approval of a technician certification program
may also seek approval for technician certifications granted
previously under the program. Interested persons may submit to the
Administrator at the address in Sec. 82.160(a) verification that the
program met all of the standards of Sec. 82.161(c) and appendix D, *
* * except for some elements of the test subject material, in which
case the person must submit verification that supplementary
information on that material will be provided pursuant to appendix
D, section (j).
When EPA initially drafted the language requiring programs to meet
``all of the standards of Sec. 82.161(c) and appendix D,'' these
standards were considerably more general than those that were
ultimately incorporated into the rule. The proposal had discussed
possible requirements in broad terms. For instance, although the
proposal anticipated that tests would be proctored, it did not suggest
a specific ratio of proctors to examinees, such as the 1:50 ratio that
appeared in the final rule. Similarly, the proposal did not specify
whether tests would be open- or closed-book. Instead, the proposal
included general requirements that tests be proctored, that test
security measures be in place, and that tests be graded objectively.
EPA believed that many voluntary programs would meet these general
requirements.
In response to comments, the requirements for certifying
organizations grew more specific. EPA believed that increasing the
specificity of the standards strengthened the technician certification
program overall. However, EPA did not thoroughly reevaluate and revise
its grandfathering provision to reflect the new, detailed requirements.
Instead, the provision inappropriately continued to allow voluntary
programs to be grandfathered only if they meet all the requirements of
Sec. 82.161(c) and appendix D, with a limited exemption concerning test
subject material.
The Agency recognizes that if voluntary programs were held to each
of the detailed standards, no voluntary technician certification
program could be grandfathered. Appendix D contains the specific
requirements of the technician certification program. Voluntary
programs prior to the promulgation of the final rule could not have
complied with these requirements, as they were not yet in existence.
Section (a) (Test Preparation) of appendix D requires that ``[e]ach
certifying program must assemble tests by choosing a prescribed subset
from the EPA test bank.'' However, the test bank did not become
available until September 30, 1993. In addition, EPA requires programs
to certify technicians with Type I, Type II, or Type III
certifications, depending on the level of the test passed by the
technician. EPA developed these categories after the close of the
public comment period to the proposed rule. However, other logical
categorization systems are possible, and until EPA promulgated the
final rule, many technician certification organizations categorized
technician types differently. Furthermore, section (a) requires a
closed-book test, yet most testing organizations prior to the final
rule offered only open-book tests. Finally, appendix D defines the
ratio of technicians to proctors, and establishes recordkeeping and
reporting requirements, all requirements that organizations certainly
could not have complied with prior to the promulgation of the final
rule.
Nevertheless, many voluntary programs substantially complied with
most of the standards of appendix D, even though they used alternative
procedures to those eventually specified in appendix D. Thus, many
programs did proctor tests (at least the equivalent of Type II, Type
III, and Universal tests), ensure test security, objectively grade
tests, and keep records. Several programs also covered most of the
required subject matter in the core and at least some technical
sections, even when they did not establish the same categories in their
testing as were established in the final rule (Type I, II, etc.). Where
the content of their voluntary testing fell short of that required by
the final rule, programs expressed their willingness to provide
additional testing and training as needed, and the final rule provided
for this remedy.
EPA has always intended to grandfather these reasonably stringent
programs. The purposes of the technician certification requirement are
discussed fully in the preamble to the rule establishing the program
(58 FR 28660, May 14, 1993). A primary goal of the requirement is to
guarantee that technicians who handle refrigerants understand and
practice safe refrigerant recovery and recycling techniques. Proper
handling will minimize release of refrigerants to the atmosphere and
the accompanying environmental harm.
In promulgating the certification provision, EPA determined that
grandfathering reasonably stringent voluntary certification programs
would significantly further the goals of the certification requirement
in a number of ways. By training and testing technicians in recycling
refrigerants before the rule was promulgated (on May 14, 1993),
reasonably stringent voluntary programs prepared technicians to comply
with the prohibition on venting that became effective on July 1, 1992,
and probably significantly reduced refrigerant emissions. These
programs also served as an impetus for developing a mandatory program,
providing a model for that program. Indeed, EPA worked with several
voluntary programs to develop the requirements of the mandatory
program. In addition, many voluntary organizations provided questions
for the test bank, determining the scope of the training and the
current exam. Finally, EPA does not want to discourage future
participation in voluntary environmental training. Requiring repeat
testing for all technicians who voluntarily took adequate testing and
training could discourage people from participating in future voluntary
programs.
Any potential harm from grandfathering would arise from certifying
some technicians on the basis of their participation in testing
programs that unavoidably deviated from some of the specific
requirements in appendix D. However, EPA will only grandfather those
programs that substantially complied with most of the certification
standards, and therefore largely achieved the basic goal of the
certification requirement, to ensure that technicians understand proper
refrigerant handling practices and the importance of such practices. In
addition, a program can address any gaps in its coverage by providing
supplementary information. Given substantial compliance and
supplementary information, the marginal benefits derived from retesting
would be relatively small. Moreover, such benefits must be compared to
the burden of requiring retesting. Over 100,000 technicians
participated in voluntary programs. Retesting would require almost all
of these technicians to incur costs for time, travel and test
administration. In light of the significant benefits and small
potential harm expected from grandfathering reasonably stringent
voluntary programs, EPA is modifying the requirements for
grandfathering to ensure that an Agency drafting error does not
disqualify these programs outright.
To carry out this intent, EPA today is amending the grandfathering
provision of Sec. 82.161(g) as the Agency proposed in the August 15,
1994 Federal Register notice (59 FR 41968). This paragraph currently
states that ``[i]nterested persons may submit to the Administrator at
the address in Sec. 82.160(a) verification that the program met all of
the standards of Sec. 82.161(c) and appendix D, or verification that
the program met all of the standards of Sec. 82.161(c) and appendix D,
except for some elements of the test subject material, in which case
the person must submit verification that supplementary information will
be provided pursuant to appendix D, section (j).'' (emphasis added).
EPA is amending Sec. 82.161(g) to read ``Interested persons must submit
to the Administrator at the address in Sec. 82.160(a) verification that
the voluntary certification program substantially complied with most of
the standards of Sec. 82.161(c) and appendix D of subpart F. (emphasis
added). If the program did not test or train participants on some
elements of the test subject material, the person must submit
verification that supplementary information on the omitted material
will be provided pursuant to appendix D of subpart F, section (j).''
In reviewing requests to grandfather technicians, EPA will assess
the extent to which a program substantially complied with most of the
requirements in each paragraph of Sec. 82.161(c) and appendix D
(paragraph (a) of appendix D being test preparation, (b), proctoring,
(c), test security, etc.) and most of the basic concerns addressed by
those paragraphs, considering the information that was available to the
program at the time of its initial development. EPA believes that this
is reasonable given the limited information available to these programs
before the final rule was published and the question bank was released.
For example, the proposed rule published on December 10, 1992,
discussed the need for organizations to provide proctored tests under
conditions that ensured test security, but did not specify that one
proctor be provided for every 50 individuals taking the test as
specified in the final rule. Under the approach taken in this document,
voluntary programs that provided proctors, but did not necessarily
provide exactly one proctor for every 50 individuals taking the test,
would not be disqualified on that basis alone. EPA believes that the
modification of the final rule to replace ``met all'' with
``substantially complied with most'' allows EPA to review these
programs taking such circumstances into account.
Almost all commenters supported changing the language of
Sec. 82.161(g) to permit grandfathering of voluntary programs, although
one commenter opposed grandfathering. A few commenters only supported
grandfathering for the Type I level. Commenters who supported
grandfathering cited EPA's rationale for making the change to permit
it, stating that technicians and contractors in the air-conditioning
and refrigeration industry required education on the new recycling
requirements, and that voluntary programs fulfilled this need, probably
significantly reducing refrigerant emissions. These commenters stated
that any shortfalls in early testing and training could (and should) be
remedied through providing supplemental information. Commenters also
noted that failure to grandfather voluntary programs could discourage
future participation in voluntary environmental education programs.
The commenter who opposed grandfathering argued that the
certification testing being offered by new programs approved after the
rule was published is significantly more difficult than that offered by
one voluntary certification program. As discussed below, EPA plans to
evaluate voluntary certification programs on a case-by-case basis and
to consider the content of the programs' testing in its grandfathering
decisions. As discussed above, EPA will only grandfather voluntary
programs that substantially complied with most of the certification
standards and that send out any supplementary information that EPA
considers necessary. EPA believes that the benefits of grandfathering
such programs significantly outweigh the costs.
Three commenters supported grandfathering of voluntary programs
only to the Type I level. These commenters claimed that none of the
voluntary programs were as comprehensive or stringently administered as
new programs approved after the rule was published; therefore,
grandfathering of technicians who participated in these programs to the
Type II or Type III level would be dangerous to the environment and
unfair to technicians who worked hard to successfully complete new
programs. However, the commenters believed that grandfathering to the
Type I level was acceptable because of the smaller charge sizes and
lesser safety concerns associated with small appliances. One of the
commenters stated that EPA should not grandfather programs simply
because they offered an appropriate testing environment, but should
examine content of voluntary exams to ensure that those exams were
``reasonably similar'' to the exams now being used for certification.
This commenter argued that, for example, programs that did not test
participants on the final rule, including all of those offered before
publication of the final rule, should not be grandfathered even to Type
I unless participants took and passed a test drawn from the Core
section of the question bank.
The commenters also stated that requiring grandfathered technicians
to take further testing before granting them Type II or Type III
certification would not represent an undue burden. One of the
commenters expressed the opinion that the organizations that operated
voluntary programs should make any retesting an administratively simple
and accessible option, because they assumed this responsibility when
they made a conscious decision to offer testing before certification
requirements were finalized.
EPA agrees with these commenters that the content of voluntary
testing and training, along with the administrative criteria listed in
appendix D, must be considered in any grandfathering decision. EPA does
not intend to grandfather a voluntary program for a given Type if the
program did not include any test questions or training for that Type.
Indeed, voluntary programs differed significantly in their coverage of
the various Types. Some programs focussed exclusively on Type I, while
others covered Types I through III. EPA considers it appropriate to
evaluate these programs individually, rather than adopting an across-
the-board policy to grandfather them all to the same level.
EPA considers it appropriate to permit voluntary programs to
address gaps within the Types covered by their original testing and
training by providing additional materials to past participants. If a
program has substantially complied with the standards, the voluntary
certification should have largely met the educational purposes of
requiring certification. While there may be some areas that a voluntary
program did not cover, providing additional information should ensure
that technicians achieve an acceptable level of competency. Moreover,
requiring voluntary programs to have anticipated all of the topics
within a Type constitutes just as impossible a hurdle as requiring them
to have anticipated every administrative requirement in appendix D.
Even the original final rule published on May 14, 1994, recognized this
and permitted programs to be grandfathered as long as they ``submit
verification that supplementary information on that material will be
provided.''
Thus, voluntary programs that did not fully cover the requirements
of the final rule, for instance, will be permitted to address the
omission by developing supplementary materials on that topic,
submitting these materials to EPA for review and revision, and then
sending these materials to past participants. Past participants will be
required to sign a statement that they have read the new materials and
to return it to the voluntary program operator before receiving their
certification cards. EPA believes that this process will ensure that
supplementary materials are of acceptable quality and that past
participants read and learn them before being certified.
EPA disagrees with the assertion that retesting on a Type would not
represent an undue burden to technicians who participated in a
voluntary program that covered that Type. Although EPA strongly
believes that proctored testing in Types II and III is worthwhile for
technicians who have not already been tested on those Types, the Agency
believes that the costs of such testing outweigh its benefits for
technicians who have already been tested in the Types. Those costs
include time taken to travel to the test site and take the test, travel
costs, and the cost of the test itself. The differences between the
Type II and Type III tests being offered by new programs and those
offered by many voluntary programs are not significant enough to
warrant these additional investments. However, the Agency again
emphasizes that if Type II or Type III was not covered by a voluntary
program, then past participants in that program will have to take
proctored testing before they can be certified for that Type.
One commenter argued that EPA should require programs that operated
after the publication of the final rule (May 14, 1993) to have met
stricter standards than programs that operated before publication of
the final rule. This commenter stated that programs operating after
publication of the final rule, unlike programs operating earlier, knew
both the administrative and content requirements that would have to be
met by technician certification programs. The commenter claimed that
some programs ``enticed technicians to be certified through an
abridged, open-book testing methodology prior to October 15, 1994, with
promises of these substandard processes being grandfathered.'' The
commenter believed that rewarding these programs and the technicians
who participated in them by grandfathering the programs would be unfair
to programs and technicians who attempted to meet higher standards.
Although EPA will consider the efforts of voluntary programs to
update their testing content and procedures to conform to the
requirements of the final rule after May 14, 1993, EPA will not require
voluntary programs to have met all of those requirements to be
grandfathered. First, grandfathering voluntary programs that
substantially complied with the standards of Sec. 82.161 and appendix D
should further the environmental goals of requiring certification, even
if such programs did not fully update in conformity with the
requirements of the final rule. If a voluntary program was already
substantially complying with the requirements of Sec. 82.561 and
Appendix D before May 14, 1993, then changes to its administrative
practices after May 14, probably would not have had a significant
impact on the overall quality of the program. At the same time,
omissions from a program's training and testing can be addressed by
supplying past participants with supplementary materials that
participants must read before they receive their certification cards,
as discussed above. Omissions can be rectified in this manner
regardless of when the original training and testing occurred.
The process of developing and disseminating supplementary materials
also mitigates the unfairness perceived by the commenter; programs that
updated their testing and training more swiftly need not develop, and
their participants need not review, as much supplementary information
as programs that did not update their testing and training. In
addition, until September 30, 1993, voluntary programs continued to
provide the only source of training in refrigerant handling. EPA
believes that the environmental benefit of timely, reasonably stringent
training and testing outweighed any costs associated with programs'
failure to adhere to every requirement in the final rule.
Second, it was not possible for programs to fully comply with the
standards of the final rule until September 30, 1993. The bank of test
questions was not available to programs until EPA approved the first
set of programs, so programs could not have included these questions in
their testing before that date. Requiring voluntary programs to have
included such questions would automatically prevent all voluntary
programs from being grandfathered.
Third, programs were understandably reluctant to change their
procedures and materials given their uncertainty over when EPA would
announce the approval of the first set of technician certification
programs and thereby make the bank of test questions available. As
discussed below, the process of reviewing certification programs can
vary greatly in length, depending upon the completeness of initial
submissions and the speed with which programs respond to later
inquiries. Voluntary programs, therefore, could not be certain whether
the effort and expense of revising and reprinting old tests would be
justified, since such revised tests would become obsolete once the
program operator had access to the bank of test questions. The same
uncertainty surrounded efforts to develop and disseminate new
administrative procedures, since such procedures would also probably be
revised once programs were approved.
Finally, while EPA did not approve of programs advertising an
``easy'' alternative to a future, closed-book test, determining whether
each program that applies for grandfathering did or did not engage in
such advertising would be very difficult. It would be even harder for
EPA to determine whether advertising that did occur was a centrally
organized campaign or an isolated incident. Thus, EPA does not plan to
use reports of such advertising as a criterion in its grandfathering
decisions.
EPA will, however, consider requiring recertification of
grandfathered technicians after some period, perhaps two years, if
EPA's experience enforcing the rule indicates that their training was
not adequate. As noted in the final rule published on May 14, 1993, EPA
reserves the right to require recertification of any or all
technicians, if necessary.
Another commenter argued that EPA should grandfather only programs
that included a ``live'' instructor and should not grandfather programs
that offered testing without training. EPA will consider the training
and testing offered by programs in their entirety rather than requiring
a specific instruction technique. While a videotape cannot respond to
questions from technicians as a ``live'' instructor can, a thorough and
accurate videotape is preferable to an ill-informed instructor.
Moreover, if technicians have succeeded in passing a comprehensive,
difficult test without taking a special training course, EPA believes
that they have demonstrated their knowledge of proper and legal
techniques for refrigerant handling, which is the goal of technician
certification.
EPA is extending the November 14, 1994 deadline until May 15, 1994,
for those technicians who successfully completed a voluntary program
that applies for grandfathering no later than December 9, 1994. During
the extension period, those technicians who successfully completed a
voluntary program may continue to service, maintain, repair, and
dispose of appliances and may buy refrigerant using the certificates or
cards issued by the voluntary program. This additional time will allow
EPA to consider applications by voluntary programs for grandfathering
and will enable grandfathered voluntary programs to provide
supplementary information, if necessary, and proof of EPA-approved
certification to grandfathered technicians. To make their past
participants eligible for this extension, programs must apply (or have
already applied) within 30 days of publication of this amendment (1) to
be approved as a technician certification program under Sec. 82.161(c),
and (2) to grandfather technicians. This extension does not apply to
technicians who did not participate in any voluntary program, or who
participated in voluntary programs that have not applied and do not
apply within the set period. These technicians must still be certified
by November 14, 1994.
This extension provision is very similar to the one proposed. The
one difference between the proposed and final provisions is that the
proposed provision would have made the extension effective until six
months after publication of the final rule, and the final provision
makes the extension effective until May 15, 1995, six months after the
effective date of the technician certification requirement. EPA made
this change to establish a simple, memorable date for the expiration of
the extension. Because EPA expects to announce most of its
grandfathering decisions when the rule becomes effective, and because
EPA expects the rule to become effective before November 14, 1994,
technicians who successfully completed voluntary programs will still
have at least six months to complete any additional training or testing
necessary to become certified.
All commenters in favor of grandfathering supported providing an
extension of the November 14 deadline to past participants in voluntary
programs. Many commenters cited the reasons in the proposal, noting
that the November 14 deadline did not anticipate the delay caused by
this amendment to the regulations. The commenters agreed that it would
be counter-productive to force technicians who completed a voluntary
program to take additional testing simply because they do not know
whether or not their voluntary program will be grandfathered. However,
some commenters believed that this extension should be linked to the
date that EPA approves or disapproves grandfathering of the voluntary
program, rather than the date of publication of the final amendment or
any other specific date. This would ensure, these commenters argued,
that participants in these programs had sufficient time to complete
additional testing and/or training, if necessary. In addition, two
commenters argued that EPA should be required to complete review of
grandfathering applications within a specific period (one commenter
suggested 30 days). Finally, one commenter believed that voluntary
programs should be required to inform their past participants within a
specific period both whether or not the programs applied for
grandfathering and whether EPA approved or disapproved their
applications.
EPA agrees with the commenters that voluntary programs and/or their
past participants should have sufficient time to provide or obtain
additional training or testing before the certification requirements go
into effect for all technicians. Consequently, EPA has made a
considerable effort to review grandfathering applications in a timely
fashion. The Agency plans to announce the majority of its
grandfathering decisions when this rule is published or shortly
thereafter. EPA believes that this will leave voluntary programs and
their past participants enough time to provide any required
supplementary information and to complete any needed additional
training or testing before the general six-month extension expires,
making it unnecessary to issue separate, six-month extensions to each
program.
Moreover, the Agency considers a fixed, uniform deadline for
certification essential to effective compliance with and enforcement of
the sales restriction. The sales restriction requires that every
refrigeration wholesaler in the U.S. understand which certification
cards issued by approved programs and which credentials issued by
voluntary programs are valid for refrigerant purchase. If the
credentials issued by voluntary programs ``expired'' on different
dates, and if each expiration date were announced individually,
compliance with the sales restriction would become unacceptably
complicated for wholesalers.
EPA does not believe that imposing a deadline for review on itself
is either necessary or practical. As noted above, the Agency expects to
announce most, if not all, of its grandfathering decisions when this
amendment is published. The only voluntary programs on which EPA will
not have issued decisions will be those that have not yet applied at
all and those that have not completed the necessary information
requirements. The review process typically involves multiple contacts
between EPA and the applying program; the speed with which it is
completed depends as much upon the time taken by the program to respond
to inquiries and develop submissions as the time taken by EPA to review
them. Thus, even if it devotes all of its resources to the review
process, EPA cannot guarantee that reviews will be completed within a
given period.
EPA agrees, however, that voluntary programs should be required to
inform past participants of EPA's decision and to provide any required
supplementary information within a set period, so that technicians have
sufficient time to review the supplementary information or to obtain
additional training and testing if it is required. EPA is therefore
modifying the proposed amendment to require that (1) voluntary programs
that EPA has disapproved inform their past participants of EPA's
decision within 30 days of their disapproval, and (2) programs that EPA
has approved inform their past participants of EPA's decision and
provide any supplementary information within 60 days of their approval.
EPA believes that 30 days will provide sufficient time for disapproved
voluntary programs to generate and mail their notifications while
allowing technicians sufficient time (approximately five months, in
most cases) to complete a certification program approved after May 14,
1994.
EPA is allowing 60 days rather than 30 days for approved programs
because the Agency recognizes that printing and disseminating
supplementary information may take longer than printing and mailing
simple notifications. In addition, technicians who successfully
completed voluntary programs that are approved for grandfathering will
need less additional training and testing than technicians who
participated in voluntary programs that are not approved. Finally, EPA
is requiring programs approved for grandfathering to issue
certification cards to technicians within 60 days of the programs'
receipt of signed statements from the technicians indicating that the
technicians have read the supplementary information. Based on
discussions with voluntary programs, EPA believes that this will allow
sufficient time for voluntary programs to generate and mail the cards,
while allowing technicians enough time to read the supplementary
information.
EPA does not believe that this notification requirement will impose
an unreasonable burden on the voluntary programs that apply for
grandfathering. These voluntary programs have undertaken to certify
technicians in advance of the final regulations and have applied to EPA
for grandfathering. Given their voluntary assumption of responsibility,
it is reasonable to place on the voluntary programs the
responsibilities (1) to inform their participants whether their
applications for grandfathering were successful and (2) to send their
participants certification cards in a timely fashion.
However, EPA is not requiring voluntary programs to notify
participants whether or not the program has applied for grandfathering.
EPA believes that it is the responsibility of technicians and/or their
employers to obtain this information, and this information is (and has
been) readily available from both EPA and voluntary technician
certification programs. The Stratospheric Ozone Hotline has been
distributing a list of programs that have applied for grandfathering
since March, 1994. The list includes the following programs:
Amtrak Technical Training Center
Air Conditioning Contractors of America
CFC Reclamation and Recycling
Climate Control Institute, Inc.
Delaware County Community College
Environmental Training Group
Hartsog Trade School
Johnson Controls, Inc.
National Apartment Association
National Association of Power Engineers
People's Natural Gas
Refrigeration Environmental Protection Association
Refrigeration School, Inc.
Refrigeration Service Engineers Society
Rock Valley College
State of Alaska
State of Wisconsin, Department of Industry, Labor and Human Relations
Sears Product Services
Sequoia Institute
Tennessee Valley Technical Program
Texas Engineering Extension Service
United Association of Journeymen and Apprentices of the Plumbers and
Pipe Fitting Industry of the United States and Canada
VGI Training Division, Video General Inc.
York International
Since they first appeared on this list, six of the programs,
including Delaware County Community College, National Apartment
Association, People's Natural Gas, Rock Valley College, Sequoia
Institute, and Tennessee Valley Technical Program, have withdrawn their
applications for grandfathering. However, because these programs
appeared on the list, and because some of these programs withdrew
relatively recently, EPA will grant past participants in these programs
the six-month extension. These programs must inform their past
participants that they have withdrawn their request for grandfathering
by December 9, 1994, if they have not done so already, so that past
participants can obtain certification through a program approved after
May 14, 1993.
Additional programs may apply for grandfathering until December 9,
1994. EPA will provide wholesalers and other interested parties with a
revised list at that time, if necessary.
One commenter believed that the amendment should allow technicians
to continue to service equipment for six months from the promulgation
date, as long as the equipment owner or operator could demonstrate that
its technicians attended a voluntary certification program. This
commenter believed that the extension should apply even if the
voluntary program does not apply for grandfathering. EPA believes that
only technicians who participated in voluntary programs that apply for
grandfathering should be granted the six-month extension. Without an
application for grandfathering, EPA has no reason to assume that the
training might have been adequate to significantly meet the goals of
the technician certification program. The extension is premised on the
assumption that in many cases the voluntary programs have ensured
technician training adequate to meet the certification program goals,
as would be shown by substantial compliance with most of the standards
in Sec. 82.161 and appendix D. In such cases, EPA expects to approve
the grandfathering applications, and thus the extension will have
avoided the need to recertify technicians who eventually would be
grandfathered. Where the program has not applied for grandfathering,
however, EPA has no basis for believing either that there was a
reasonable possibility that the program significantly met the goals of
certification, or that the technician would not have to recertify at
the expiration of the extension period. EPA believes that bona fide
voluntary certification programs will make the effort to apply for
grandfathering, and that, in fact, most of those programs have applied
already.
In addition to the changes outlined above, in this amendment EPA is
clarifying how it will determine whether programs and individual
technicians will be grandfathered for a given Type. Whether a voluntary
certification program will be grandfathered for a Type will depend upon
the coverage by the program of the material in that Type. Whether an
individual technician will be grandfathered for a given Type will
depend upon (1) whether the technician successfully completed a
voluntary program that has been grandfathered for that Type, (2)
whether the technician successfully completed the portions of the
voluntary certification program that correspond to that Type, and (3)
whether the technician reads any supplementary information required by
the Administrator pursuant to Sec. 82.161(g)(1) and returns a signed
statement to that effect to the program. For clarity, EPA is also
adding a definition of ``voluntary certification program.'' EPA had
also proposed adding a definition of ``to be grandfathered'' but the
Agency has determined that this definition is unnecessary. The
regulations will simply refer to the ``approval'' of a voluntary
program or the ``certification'' of a technician under a voluntary
program.
To maintain consistency, EPA is also modifying appendix D, section
j. The revised section reads:
EPA will grandfather technicians who successfully completed
voluntary programs whose operators seek and receive EPA approval to
grandfather these technicians, in accordance with Sec. 82.161(g). As
part of this process, these certifying programs may be required to send
EPA-approved supplementary information to ensure the level of the
technicians' knowledge. Technicians will be required to read this
supplementary information as a condition of certification. The
certifying programs will also issue new identification cards meeting
the requirements specified above.
EPA is deleting the second paragraph of appendix (D)(j). The deleted
material reads:
Persons who are currently technicians must be certified by November
14, 1994. Technicians that participated in certification programs which
do not become EPA-approved certifying programs must either receive EPA-
approved supplemental information from the original testing
organization or be certified by taking a test given by an EPA-approved
certification organization by November 14, 1994.
This provision has been rendered redundant by the more specific
requirements in Sec. 82.161 (a) and (g). Also, technicians who
participated in programs that are not approved for grandfathering do
not have the option of becoming certified through receipt of EPA-
approved supplemental information.
B. Clarification of the Scope of the Technician Certification
Requirement
EPA is making several changes to clarify the scope of the
technician certification requirement. Four provisions related to the
scope of this requirement were somewhat inconsistent: the definitions
of ``technician,'' and ``opening,'' the provision at Sec. 82.154(l)
that prohibits anyone but certified technicians from opening or
disposing of appliances, and the technician certification requirements
at Sec. 82.161(a). In the August 15, 1994 notice, EPA proposed changes
intended to eliminate the inconsistencies. First, EPA proposed to
modify the definition of ``opening'' in order to distinguish it more
clearly from the definition of ``technician.'' In the proposed change,
``opening'' would have been defined as any service, maintenance, or
repair on an appliance that would (instead of ``could'') be reasonably
expected to release refrigerant from the appliance to the atmosphere
unless the refrigerant were previously recovered from the appliance.
Second, EPA proposed to modify the disposal provision of the definition
of ``technician'' to include only those parts of the disposal process
(e.g., evacuation of the equipment) that have the potential to release
refrigerant. Third, the proposal linked the definition of technician to
the certification requirement at Sec. 82.161 by replacing the term
``person'' in that requirement with the term ``technician.'' Fourth,
EPA proposed to eliminate the prohibition requiring technician
certification for ``opening'' appliances.
Commenters supported EPA's efforts to clarify the scope of the
technician certification requirement. In particular, commenters
supported EPA's efforts to exclude persons from the requirement who
performed activities that have very little chance of releasing
refrigerant, such as painting appliances or repairing empty appliances.
However, some commenters disagreed with the proposed scope, and others
believed that the proposed clarification either failed to remove all of
the ambiguities or introduced new ones.
The proposed clarifications are necessary to accomplish the
intended purposes of the provisions being revised. One important goal
of the refrigerant recycling provisions is to clearly identify those
conditions that will require evacuation of an appliance. Another
critical element of the provisions is to state the kinds of activities
that may be performed only by a certified technician. In addition, EPA
intends the regulations to clearly indicate the types of situations
that do not require evacuation and those activities that need not be
performed by a certified technician.
In their current form, the provisions do not clearly distinguish
maintenance, service, repair and disposal that should require
technician certification from maintenance, service, repair and disposal
that should require evacuation of the appliance or component to be
serviced. EPA believes that technician certification requirements
should be triggered by activities that carry a reasonable risk or
probability of refrigerant release. Where there is a reasonable risk of
release, certification ensures among other things that the technician
knows how to minimize that risk and understands the environmental
importance of avoiding a release. However, EPA believes that evacuation
requirements should be triggered by activities that would release
refrigerant unless the refrigerant were recovered previously.
Evacuation avoids such an otherwise inevitable release by emptying the
appliance of refrigerant prior to the contemplated activity. (While
some refrigerant will remain in an appliance even after the appliance
has been evacuated pursuant to Sec. 82.156, the Agency does not intend
to require evacuation to levels below those specified in Sec. 82.156.)
In the rule published May 14, 1993, EPA had linked both the
technician certification and evacuation requirements to the definition
of ``opening.'' Thus, ``technician'' was defined as ``any person who
performs maintenance, service, or repair that could reasonably be
expected to release'' refrigerant, and ``opening'' was defined as ``any
service, maintenance, or repair * * * that could reasonably be expected
to release refrigerant.'' Evacuation was required prior to opening, and
only technicians were allowed to open appliances. EPA had linked these
requirements believing that the same group of people who performed
service that required evacuation would be those who engaged in
activities that carry significant risk of refrigerant release.
In the proposed amendment, EPA recognized that there are some types
of service, such as charging appliances, that should not trigger
evacuation requirements but that carry a significant risk of
refrigerant release. On the other hand, there are other types of
service, such as replacement of compressors, that should trigger
evacuation requirements but that, once evacuation is complete, carry no
risk of refrigerant release. Moreover, there are some people who engage
only in one or the other of these types of maintenance, service,
repair, and disposal.
Accordingly, EPA proposed to detach the certification requirement
from ``opening'' appliances by deleting prohibition Sec. 82.154(l),
which had required certification for persons who open appliances. In
addition, EPA proposed to sharpen the distinction between the
definitions of ``opening'' and ``technician.'' Whereas both definitions
had referred to maintenance, service, or repair, ``that could''
[emphasis added] reasonably be ``expected to release refrigerant to the
atmosphere,'' the proposed definition of ``opening'' was changed to
``service, maintenance, or repair * * * that would [emphasis added] be
reasonably expected to release refrigerant to the atmosphere.'' The
evacuation requirements remained triggered by ``opening'' of
appliances. Finally, EPA tied the certification requirements at
Sec. 82.161 to the definition of technician, clarifying that
maintenance, service, repair, and disposal that has no reasonable
chance of releasing refrigerant would not require certification. In
this fashion, EPA attempted to convey that while technician
certification requirements would be triggered by activities carrying a
reasonable risk or probability of refrigerant release, evacuation
requirements would be triggered by activities that certainly would
release significant quantities of refrigerant unless the refrigerant
were recovered previously.
Commenters have stated, however, that changing the ``could'' in the
definition of ``opening'' to ``would'' does not sufficiently define the
types of maintenance, service, repair, and disposal that require
evacuation of the appliance or component to be serviced. In addition,
commenters asserted that, due to the ambiguity of the term ``could,''
the proposed definition of technician fails to sufficiently define the
types of maintenance, service, repair, and disposal that should require
technician certification. Commenters noted that there are a variety of
types of activities that might still be included in the certification
requirement although EPA did not intend certification to cover these
activities. Procedures such as painting appliances, tightening nuts and
bolts on fully charged appliances, and disposing evacuated appliances
``could'' release refrigerant. As commenters pointed out, a dropped
paint brush or wrench has a minute chance of rupturing a refrigerant
line, while tightening nuts and bolts could release refrigerant in the
unlikely event of bolt shearing or failure. In addition, commenters
noted that under the current definition, certification might be
required for maintenance, service, repair, and disposal of evacuated
appliances because small amounts of refrigerant would be released even
from evacuated appliances.
Commenters suggested a variety of alternative methods for
clarifying the scope of the evacuation and technician certification
requirements. Many commenters suggested that EPA explicitly list in the
definitions of ``opening'' and ``technician'' the activities that it
intended to include in or exclude from those definitions. For instance,
one commenter proposed explicitly excluding disposal of empty
appliances from the definition of ``technician.'' Another commenter
recommended adding a statement to the definition of ``opening'' that
read, ``opening does not include any activity intended by design to
close or tighten the system, including but not limited to tightening
nuts and bolts to reduce refrigerant leaks.'' A third commenter
suggested including ``adding or removing class I or class II
refrigerant from an appliance'' in the definition of ``opening.''
Commenters also suggested explicitly listing included or excluded
activities in other provisions of the regulation, such as the
evacuation requirements at Sec. 82.156(a) and the prohibition at
Sec. 82.154(l). (Some commenters did not appear to realize that EPA was
proposing to delete this prohibition.) One commenter suggested that EPA
add language to Sec. 82.156(a) clarifying that ``[a]dding refrigerant
does not, in itself, require evacuation.'' A second commenter proposed
excluding from Sec. 82.154(l) ``persons who repair, service, or
maintain appliances that do not contain refrigerant at the time work is
performed.'' A third commenter suggested adding a provision that would
prohibit anyone but certified technicians from adding or removing
refrigerant from appliances.
In addition, commenters recommended other changes to the definition
of ``opening.'' These commenters focussed on the phrase, ``would be
reasonably expected to release refrigerant,'' which they found
subjective and unclear. One commenter suggested substituting ``would
create a reasonable probability'' for ``would be reasonably expected.''
Two commenters recommended eliminating the concept of refrigerant
release from the definition altogether and defining ``opening'' as
``entry into the refrigeration circuit of an appliance.'' One of these
defined ``entry'' as ``any action that is intended by design to violate
the integrity of an enclosure that contains or would contain the
refrigerant.''
There are clearly a number of ways in which the scopes of the
certification and evacuation requirements could be clarified. To keep
the rule as straightforward as possible, EPA has chosen to place the
conditions that trigger these requirements in the definitions of
``technician'' and ``opening'' respectively and to use the definitions
alone to delineate the scopes. In addition, as proposed, EPA is
eliminating the prohibition at Sec. 82.154(l), which introduced
confusion by linking technician certification requirements to the
definition of ``opening.''
As discussed above, EPA believes that evacuation requirements
should be triggered by activities that would release refrigerant unless
the refrigerant were recovered previously. This includes any
maintenance, service, or repair that leaves the appliance open to the
atmosphere for more than an instant. It does not include connecting and
disconnecting hoses and gauges to and from the appliance to measure
pressures within the appliance and to charge refrigerant into or
recover refrigerant from the appliance. While these procedures may
release refrigerant, the releases are small and unavoidable. Moreover,
most of the procedures are fundamentally inconsistent with refrigerant
recovery; their purpose would be defeated by it.
In view of these considerations, EPA is establishing the following
definition of ``opening:''
Opening an appliance means any service, maintenance, or repair on
an appliance that would release class I or class II refrigerant from
the appliance to the atmosphere unless the refrigerant were recovered
previously from the appliance. Connecting and disconnecting hoses and
gauges to and from the appliance to measure pressures within the
appliance and to add refrigerant to or recover refrigerant from the
appliance shall not be considered ``opening.''
EPA believes that the revised definition of ``opening'' responds to
the concerns raised about the proposed definition and clarifies the
scope of activities subject to evacuation requirements. By replacing
``would be reasonably expected'' with ``would,'' the revision minimizes
any subjectivity that may have been in the proposed definition and
clarifies that the activities covered are those that would release, not
just could release, refrigerant if the refrigerant were not recovered
first. The revised definition also recognizes that there are some types
of maintenance, repair, and disposal whose purpose is not consistent
with refrigerant recovery and that therefore should not trigger
evacuation requirements.
EPA does not believe that ``entry into the refrigerant circuit'' is
sufficiently clear, in itself, to serve as the definition of
``opening.'' Even combined with the suggested definition for ``entry,''
the suggested definition of ``opening'' may be interpreted to include
more than the commenters evidently intended. One could argue, for
instance, that attaching hoses and gauges to an appliance could be
construed as an ``action that is intended by design to violate the
integrity of an enclosure that contains or would contain the
refrigerant.'' When the hose is attached, the previously self-contained
appliance has an opening in it, even if this opening leads only to a
charging cylinder or gauge instead of to the atmosphere. In fact, EPA
believes that the language in the proposed definition of ``entry'' is
more useful in the definition of ``technician'' than in the definition
of ``opening,'' and as discussed below, the Agency is using this
language in the former.
Some of the commenters suggested defining ``opening'' in a way that
would prevent ``opening'' from ever occurring if the evacuation
requirements of Sec. 82.156(a) were observed. One commenter, for
example, suggested that EPA revise the definition to read, ``Opening an
appliance means entry into the refrigerant circuit of an appliance
containing a class I or class II refrigerant, unless the refrigerant
were previously recovered from the appliance.'' Another commenter
recommended that EPA change the definition to read, ``Any repair,
service, or maintenance on an appliance that would create a reasonable
probability that the physical integrity of the refrigeration circuit
would be compromised and allow a release of refrigerant from the
appliance to the atmosphere. Recovery of the refrigerant from the
refrigeration circuit by a certified technician before beginning such
repairs, service, or maintenance shall create a rebuttable presumption
that there is no reasonable probability that a release of refrigerant
from the appliance would be allowed as a result thereof.''
EPA developed the term ``opening'' to describe the activities
before which refrigerant should be recovered. Neither the existing nor
the proposed definition of ``opening'' requires actual refrigerant
release; instead, the definitions refer to activities that would
(``could'' in the existing definition) release refrigerant if the
refrigerant were not previously recovered. The activities can take
place either while the appliance is fully charged or after it is
evacuated; they are considered ``opening'' either way. In this way, EPA
established a simple trigger that can be invoked in the evacuation
requirements at Sec. 82.156(a) as follows: ``all persons opening
appliances * * * must evacuate * * *.'' If ``opening'' never occurs,
then the evacuation requirements are never triggered. Alternative ways
of triggering evacuation requirements, such as stating that recovering
refrigerant establishes a rebuttable presumption that opening does not
occur, add unnecessary complication and confusion to the regulatory
structure.
As stated above, EPA believes that technician certification
requirements should be triggered by activities that carry a reasonable
risk or probability of refrigerant release. The Agency believes that
activities that carry a reasonable risk of refrigerant release are
those that are intended to move across the boundary of the refrigerant
circuit, or ``violate the integrity of the refrigerant circuit,'' as
one commenter put it, while refrigerant remains in the appliance. These
conclusions flow directly from the physical structure of refrigeration
systems, including enclosed refrigerant circuits. As long as the
refrigerant circuit is not violated, there is no risk of release
expected. However, the risk of release increases dramatically
immediately upon violation of the refrigerant circuit.
Violation of the refrigerant circuit includes attaching hoses and
gauges to add or remove refrigerant and to measure pressures within the
appliance. It also includes field assembly of pre-charged split
systems, which involves establishing a new connection between
previously separate refrigerant enclosures. It does not include
activities such as painting the appliance, re-wiring an external
electrical circuit, replacing insulation on a length of pipe, or
tightening nuts and bolts on the appliance (unless the nut or bolt is
obviously weakened and may be reasonably expected to shear and result
in refrigerant release). EPA agrees with commenters that the chances of
release during these activities are remote. EPA intended the phrase
``could be reasonably expected to release'' to prevent these remote
possibilities from triggering the certification requirements,
particularly since certification would not reduce the likelihood of
such accidents occurring.
Activities that carry a reasonable risk of refrigerant release also
exclude maintenance, service, repair, or disposal of appliances that
have already been evacuated pursuant to Sec. 82.156, unless the service
consists of recharging the appliance. As stated in the proposal, EPA
does not believe that individuals who service, maintain, repair, or
dispose of only empty appliances need to be certified, since releases
have already been minimized to the extent possible through evacuation.
While maintenance, service, or repair on the empty appliance could
conceivably have an impact on future releases, particularly if
performed incorrectly, technician certification does not, and cannot,
address every aspect of repair that could lead to such releases. Thus,
requiring persons who repair empty appliances to be certified would not
significantly reduce the likelihood of such releases. However,
requiring certification for the individual who recharges the appliances
probably will significantly reduce the likelihood of such releases,
because EPA's bank of test questions emphasizes the need to test
appliances for leaks before recharging them. By performing such
testing, the individual who recharges the appliance will be able to
detect and rectify many of the problems that would lead to subsequent
emissions from the appliance.
Just as EPA considers certification important for persons
recharging appliances, the Agency considers certification important for
persons who determine whether or not appliances have been evacuated
adequately to be opened. However, the revised definition of technician,
without changes elsewhere in the rule, might permit uncertified persons
to make this determination in one instance. Specifically, the revised
definition excludes individuals who move refrigerant within an
appliance (e.g., into a receiver) and who thereby evacuate a component
to be serviced. The revised definition also excludes individuals who
open evacuated appliances or components. While EPA does not believe
that either of these activities requires certification in itself, EPA
recognizes that when they are performed in sequence by uncertified
technicians, there is a risk that the appliance will be opened before
it has been properly evacuated pursuant to Sec. 82.154(a). Thus, EPA is
inserting a sentence into Sec. 82.154(a) that will require verification
of evacuation by certified technicians. Sec. 82.156(a) is amended to
read:
(a) Effective July 13, 1993, all persons opening appliances except
for MVACs for maintenance, service, or repair must evacuate the
refrigerant in either the entire unit or the part to be serviced (if
the latter can be isolated) to a system receiver or a recovery or
recycling machine certified pursuant to Sec. 82.158. All persons
disposing of appliances, except for small appliances, MVACs, and MVAC-
like appliances must evacuate the refrigerant in the entire unit to a
recovery or recycling machine certified pursuant to Sec. 82.158.
Effective December 9, 1994, certified technicians must verify that the
applicable level of evacuation has been reached in the appliance or the
part before it is opened.
To make the definition of technician as clear as possible, EPA is
explicitly listing activities that do or do not have a reasonable
probability of releasing refrigerant in the definition of technician.
The revised definition reads as follows:
Technician means any person who performs maintenance, service, or
repair that could be reasonably expected to release class I or class II
refrigerants from appliances, except for MVACs, into the atmosphere.
Technician also means any person who performs disposal of appliances,
except for small appliances, MVACs, and MVAC-like appliances, that
could be reasonably expected to release class I or class II
refrigerants from the appliances into the atmosphere. Performing
maintenance, service, repair, or disposal could be reasonably expected
to release refrigerants only if the activity is reasonably expected to
violate the integrity of the refrigerant circuit. Activities reasonably
expected to violate the integrity of the refrigerant circuit include
activities such as attaching and detaching hoses and gauges to and from
the appliance to add or remove refrigerant or measure pressure and
adding refrigerant to and removing refrigerant from the appliance.
Activities such as painting the appliance, re-wiring an external
electrical circuit, replacing insulation on a length of pipe, or
tightening nuts and bolts on the appliance are not reasonably expected
to violate the integrity of the refrigerant circuit. Performing
maintenance, service, repair, or disposal of appliances that have been
evacuated pursuant to Sec. 82.156 could not be reasonably expected to
release refrigerants from the appliance unless the maintenance,
service, or repair consists of adding refrigerant to the appliance.
Technician includes but is not limited to installers, contractor
employees, in-house service personnel, and in some cases, owners.
EPA is also adding the following definition of ``refrigerant
circuit:''
Refrigerant circuit means the parts of an appliance that are
normally connected to each other (or are separated only by internal
valves) and are designed to contain refrigerant.
There was some disagreement among the commenters regarding the
kinds of maintenance, service, repair, and disposal that should require
technician certification. Two commenters supported requiring
certification of individuals who add refrigerant to appliances;
however, one commenter opposed this requirement. This commenter argued
that requiring certification for persons who add refrigerant to
industrial process refrigeration was ``extremely burdensome,'' since
even transferring refrigerant from one portion of an industrial process
refrigeration appliance to another (such as an internal receiver) could
be construed as ``adding refrigerant.'' In addition, the commenter
stated that ``the regulated community was lead (sic) to believe that
the simple addition of refrigerant to a system * * * did not have to be
certified.'' The commenter also stated that EPA staff told him in March
of 1994 that persons who charge equipment do not need to be certified.
Finally, the commenter stated that if EPA intended to require
certification of persons who add refrigerant to industrial process
refrigeration systems, EPA should establish a new certification
category for such persons and should permit such persons an additional
six months to become certified, since EPA was reversing its earlier
position regarding the need for such persons to be certified.
EPA does not believe that requiring certification for persons who
add refrigerant to industrial process refrigeration systems is unduly
burdensome. First, transferring refrigerant from one part of a
refrigeration circuit to another (including receivers that are
separated from the operating circuit only by internal valves) will not
require certification under the new definition of technician. The
definition excludes activities that do not ``violate the integrity of
the refrigerant circuit.'' Thus, technicians who only transfer
refrigerant within industrial process units will not have to be
certified. Second, at least three other users of industrial process
refrigeration commented on the rule, and none of them expressed concern
that certification of persons adding refrigerant to industrial process
refrigeration systems would be ``burdensome.'' In fact, one of these
commenters recommended that EPA add a provision to the regulation to
specifically prohibit anyone but certified technicians from adding or
removing refrigerant from appliances. Third, EPA believes that
certification of persons adding refrigerant to industrial process
systems (as opposed to transferring refrigerant within such systems) is
justified because any disturbance of a refrigeration circuit has the
potential to release significant quantities of refrigerant, for
instance if a charging hose is not properly attached to a servicing
aperture or if a valve is not resealed after charging.
To support the position that persons charging appliances should not
be certified, the commenter also cited language from the preamble to
the May 14, 1993 rule. This stated that persons who charge appliances
during manufacture and transfer refrigerant from container to container
did not have to be certified. The commenter implied that these
activities were equivalent to charging appliances during servicing.
However, in the same discussion cited by the commenter, EPA repeatedly
distinguished between these activities and servicing of appliances. EPA
believes that transferring refrigerant between containers and charging
during manufacture are in general less complex, more routinized, and in
the case of charging during manufacture, more automated than charging
appliances in the field. Thus, while EPA did not include appliance
manufacturing personnel in its definition of ``technician,'' it did
include appliance ``installers,'' whose only contact with refrigerant
may be during the charging process.
EPA recognizes that there was some confusion within the regulated
community regarding the scope of the certification requirement. In
fact, EPA undertook this rulemaking in part to eliminate such
confusion. However, EPA does not believe that the confusion justifies
granting persons charging appliances their own category of
certification or an additional six months to meet certification
requirements. As noted above, only one commenter objected to the
clarification that persons adding refrigerant must be certified; other
commenters from the same sector supported this requirement.
One commenter supported EPA's clarification that installers of
appliances must be certified. This commenter stated that the
applicability of the certification requirement to installers had not
been clear in the final rule published on May 14, 1993, but that the
proposed definition corrected this problem. The commenter requested
that EPA ``continue to be consistent on this matter by prohibiting the
sale of pre-charged split systems and components to `do-it-yourself'
installers such as homeowners.''
Precharged components are parts of appliances that are sold with
refrigerant already contained in them. Pre-charged split systems are
air conditioners that are typically sold as two parts, one of which
contains the evaporator, the other, the condenser. Both parts also
contain refrigerant and must be joined at the installation site for the
air conditioner to function.
As noted above, EPA agrees with the commenter that installers of
pre-charged split systems and components should be certified, because
joining the two halves of a split system during installation involves
violation of the refrigerant circuit. Moreover, EPA agrees that sales
of pre-charged split systems and other pre-charged appliance components
should be limited to certified technicians to ensure that only
certified technicians install them. The sales restriction provision
(Sec. 82.154(n) in the rule published on May 14, 1994) contains an
exception permitting the sale to uncertified persons of refrigerant
contained in an appliance. While individual pre-charged components are
clearly not ``appliances,'' pre-charged split systems, although not
fully assembled, arguably could be considered ``appliances.'' Thus, the
exception might be interpreted to permit the sale of pre-charged split
systems to uncertified persons. EPA is revising this exception to
remove this ambiguity and clarify that it allows the sale to
uncertified persons of refrigerant contained in appliances only with
fully assembled refrigerant circuits. This will prohibit the sale of
split systems to anyone but certified technicians.
While this clarification of the sales restriction follows logically
from the clarifications to the scope of the technician certification
requirement that were proposed, the regulated community should have a
reasonable period of time to conform to the revised sales restriction.
The old exception to the sales restriction for refrigerant contained in
appliances will therefore remain in effect until 60 days after
publication of this final rule.
Another commenter argued that persons performing maintenance,
service, or repair that are required during emergencies or that release
only ``de minimis'' quantities of refrigerant should not need to be
certified. This commenter stated that in an emergency, prompt action is
often necessary in order to protect lives, property, and the
environment. If a system were to develop a large leak during the night
shift, for example, the entire refrigerant charge could be lost,
necessitating shutdown of the process, before a certified technician
was able to respond to a special call. All that might be required to
repair the leak is tightening the nuts holding a flange together, an
operation that would not be performed any better by a certified
technician than by other plant personnel. The commenter stated that if
EPA did not allow an exception to the certification requirements for
emergencies, the commenter's staff may have no option but to ``sit idly
as entire charges of refrigerant escape.'' The commenter recommended
that EPA establish the following exception to the certification
requirements:
Nothing in this subpart is intended to prohibit servicing or
maintenance activities performed by a person not certified as a
technician pursuant to Sec. 82.161, if the person is qualified by
training and/or experience to perform the task safely and effectively,
where: * * * (2) The servicing or maintenance activity is necessary due
to an emergency; no technician certified for that type of appliance
pursuant to Sec. 82.161 is available; and postponing the activity is
likely to result in significant releases of refrigerant, significant
hazards to health, safety or the environment, or substantial property
damage.
EPA recognizes that emergency situations may arise where a
certified technician is not immediately available to perform needed
repairs. However, EPA is reluctant to establish a special exception for
emergencies for a number of reasons. First, EPA has clarified above
that many procedures that would reduce leakage, such as tightening the
nuts on the flange in the commenter's example, do not require
certification because they are not expected to violate the integrity of
the refrigeration circuit. Second, EPA does not consider the
certification requirement overly burdensome. If operators of air-
conditioning and refrigeration equipment believe that there is a
significant chance that an emergency leak may occur, they can ensure
that a certified technician is available on-site or on-call during
every shift. This certainly provides a credible alternative to sitting
``idly as entire charges of refrigerant escape.'' Third, the language
suggested by the commenter for the exception includes several
undefined, subjective terms, including ``qualified,'' ``emergency,''
``available,'' ``significant'' (applied both to ``releases'' and
``hazards''), and ``substantial.'' Even if EPA considered the exception
necessary, defining these terms would be very difficult. Consequently,
the exception would be difficult to apply and enforce, and absent a
clearly demonstrated need for such a provision, EPA is reluctant to
adopt this exception.
The commenter also requested an exception from certification
requirements for persons performing maintenance, service, or repair
that release only ``de minimis'' quantities of refrigerant and that do
not require the use of recycling or recovery equipment. The commenter
argued that plant operators would be fully qualified to perform minor
repairs such as changing a gauge, if the maintenance does not involve
evacuating the appliance and any resulting losses of refrigerant are de
minimis. According to the commenter, such operators are already
familiar with procedures such as closing valves to isolate high-
pressure materials and removing and installing gauges; these procedures
apply to much of the equipment in industrial facilities in addition to
refrigeration equipment. Thus, workers who are not refrigeration
technicians would be able to perform these tasks with no greater loss
of refrigerant than a certified technician would experience. The
commenter claimed that if technicians were required to be certified to
perform these procedures, the commenter's training costs would rise by
a factor of ten, based on the need to have at least two certified
technicians on-site (in case one went on vacation) for four or five
shifts per day. The commenter recommended that EPA adopt an exemption
for activities releasing ``de minimis'' quantities of refrigerant very
similar to the exemption recommended for emergencies.
Again, EPA is reluctant to establish an exemption based upon
subjective terms such as ``qualified'' and ``de minimis,'' absent a
clearly demonstrated need for such a provision. EPA is especially
reluctant to adopt a provision that might invite uncertified
technicians to speculate whether releases would or would not be ``de
minimis.'' While uncertified technicians may be sufficiently
``qualified by training or experience'' to make an appropriate
determination of a repair that would produce only de minimis releases
and to complete the repair with minimal release, EPA has no assurance
that this will be the case. The purpose of technician certification is
to provide this assurance. If technicians are indeed ``qualified by
training or experience'' to violate the integrity of a refrigerant
circuit, then they should be able to pass the certification test
without extensive or expensive additional training.
Moreover, EPA believes that the commenter's method for estimating
increased training expenditures exaggerates these expenditures. For
instance, rather than certifying nine additional persons per plant, the
commenter could defer certain types of maintenance for less than 24
hours until a certified technician was on shift, or could arrange to
have a certified technician on-call during night shifts or during
vacations of a shift's usual certified technician.
C. Limited Exemption From Certification Requirements for Apprentices
As was proposed, EPA is amending the rule to clarify that
apprentices who meet certain requirements are exempt from the
certification requirement for two years. A person would be considered
an apprentice if he or she (1) were currently registered as an
apprentice in service, maintenance, repair, or disposal of appliances
with the U.S. Department of Labor's Bureau of Apprenticeship and
Training (or a State Apprenticeship Council recognized by the Bureau),
and (2) had been registered as an apprentice for less than two years.
An apprentice would not need to be certified as long as he or she were
closely and continuously supervised by a certified technician while
performing any maintenance, service, repair, or disposal that could
reasonably be expected to release refrigerant from appliances into the
atmosphere. However, uncertified apprentices would not be able to
purchase refrigerant after November 14, 1994. This provision clearly
would not permit uncertified technicians who were not in a training
program to perform, under a certified supervisor, service, maintenance,
repair, or disposal that could reasonably be expected to release
refrigerant from appliances into the atmosphere.
EPA believes the apprenticeship exemption conforms with the goals
of requiring certification. In establishing this exemption, EPA
recognizes that field training programs in air conditioning and
refrigeration provide a legitimate and valuable alternative or addition
to classroom training. This exemption will allow bona fide trainees to
gain field experience that will help them to obtain certification.
Apprentices with such experience should better understand and apply the
information on which certification tests them.
Limiting this exemption to registered apprentices under direct
supervision and with no more than two years experience ensures that the
exemption does not undercut the environmental protection goals of
certification. Limiting the exemption to apprentice programs helps to
ensure that supervision by certified technicians is available. In
addition, the provision specifically requires close and continual
supervision for the exemption to apply. Supervision should ensure that
the apprentice follows environmentally safe practices. Moreover, the
two-year time limit provides adequate time for the apprentice to gain
useful field experience and seek certification, but narrowly bounds the
period of any remaining environmental risk.
Most commenters supported an exemption from certification
requirements for apprentices. However, many commenters believed that
the exemption should be expanded to include persons who were not
registered as apprentices with the Bureau of Apprenticeship and
Training. Some commenters also believed that the exemption should be
lengthened beyond two years. One commenter opposed the exemption.
Some commenters arguing for expansion of the exemption believed
that it should also apply to students in classrooms. EPA wishes to
clarify that the current rule already exempts students in vocational
schools, community colleges, and university engineering programs from
technician certification requirements, because work that is performed
on appliances in classrooms or teaching laboratories strictly for
educational purposes is not considered maintenance, service, or repair.
EPA issued an applicability determination containing this conclusion on
March 18, 1994 (Number 20). To the extent that prison training programs
involve work that is strictly educational, students in those programs
are also exempt from certification requirements.
Other commenters arguing for expansion of the exemption believed
that it should also apply to trainees who work in the field but who are
not registered with the Bureau of Apprenticeship and Training. One of
these commenters noted that DOL-registered apprenticeship programs tend
to be concentrated in the northeast and in heavily unionized areas, and
that trainees in other areas may not use such programs as a means to
learn the trade. This commenter believed that trainees should be
permitted to submit an application to EPA to defer certification for up
to two years, during which period a ``learner's permit'' could be
issued to the trainee. Another commenter stated that many private
sector contractors are discouraged from committing to formal, four-year
apprenticeship programs by the Bureau's recordkeeping requirements and
approval process. According to this commenter, prospective trainees
often share contractors' reluctance to commit to a four-year program,
preferring to be paid by competency level instead of by years in the
program. The commenter believed that the requirement that trainees be
supervised by certified technicians would prevent journeymen from
masquerading as trainees, since it is expensive to send two workers to
a site when one is sufficient. Both commenters believed that trainees
should be supervised by certified technicians.
EPA recognizes that some trainees in air-conditioning and
refrigeration maintenance, service, and repair are not currently
registered with the Bureau of Apprenticeship and Training (or a
recognized State Apprenticeship Council). However, EPA believes that
third-party registration of apprentices and apprenticeship programs is
critical to ensuring that only bona fide apprentices take advantage of
the apprenticeship exemption. The requirement that apprentices be
supervised by certified technicians may discourage some technicians
from misrepresenting themselves as apprentices, but does not replace
the requirement that the apprentice be registered with the Bureau of
Apprenticeship and Training. This is because the supervision
requirement is more difficult to enforce than a requirement that
uncertified apprentices be registered with the Bureau. The suggested
approach that EPA register apprentices and issue two-year learner's
permits would demand more resources to implement and enforce than are
justified by the exemption.
The apprenticeship exemption is practicable from an enforcement and
administration perspective only if it can be linked to an existing
registration system, and the only existing, nation-wide registration
system that EPA is aware of (or that commenters mentioned) is that
operated by the Bureau of Apprenticeship and Training. In discussions
with EPA, the Department of Labor has emphasized that the Bureau
registers any program that meets its requirements, including both union
and non-union programs throughout the U.S. EPA considers compliance
with these requirements a reasonable condition for granting field
training programs the privilege of exempting their participants from
the technician certification requirements.
Two commenters believed that EPA should extend the apprenticeship
exemption from two years to three to five years to better match the
length of typical apprenticeships. These commenters stated that
extending the exemption would permit apprentices to thoroughly learn
proper and legal refrigerant handling techniques. However, other
commenters believed that the two-year term was appropriate or
acceptable. One trainer noted that the end of the second year of
training was the logical point at which a trainee would be prepared for
certification. EPA agrees that a two-year exemption provides sufficient
opportunity for trainees to become ready to pass the certification
test. While beneficial, further training is not essential to
certification. Also, as noted above, strictly limiting the time period
for the apprenticeship exemption constrains the period of any possible
heightened environmental risk.
One commenter believed that there should be no exemption for
apprentices. This commenter argued that delaying the certification
requirement could lead to ``a nonchalant attitude to safe refrigerant
handling'' among apprentices. In addition, the commenter claimed that
close supervision of apprentices by certified technicians is not always
feasible, because a single journeyman may supervise several apprentices
at once, at different locations. Another commenter argued that
apprentices should be required to be certified in the Core Type, which
focuses on environmental and safety issues, because passage of this
section of the test does not require a working knowledge of the trade.
EPA does not believe that establishing the two-year apprenticeship
exemption from the certification requirement would lead apprentices to
develop a cavalier attitude toward safety. Safety and environmental
training can and should begin as soon as an apprentice begins his or
her training in air conditioning and refrigeration. Also, one commenter
noted that their program provides classroom training for certification,
but they believe on-the-job training is necessary to teach the proper
procedures; this emphasizes the importance of allowing safety and
environmental procedures to be taught in a hands-on setting. In
addition, after the certification requirement goes into effect,
technicians learning proper refrigerant handling will have the
additional incentive of realizing that they must take and pass a test
on this topic after two years. For the above reasons, EPA does not
believe that certification in Core Type would provide sufficient
environmental benefits to justify the burden of requiring apprentices
to undergo the certification process in two separate steps.
Regarding the ability of journeymen to closely supervise
apprentices, EPA emphasizes that if close supervision is not possible,
then unsupervised apprentices must not be permitted to perform
maintenance, service, repair, or disposal that could release
refrigerant from the appliance to the environment. However,
unsupervised apprentices may perform maintenance, service, repair, or
disposal that could not be reasonably expected to release refrigerant,
such as repair of evacuated appliances or electrical work.\1\
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\1\EPA is aware that there are other federal and state
requirements for proper supervision, as one commenter noted, and the
Agency does not intend to provide any kind of exemption from such
requirements.
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D. Miscellaneous Corrections and Response to Comments
1. Correction to Definition of ``Recover''
EPA is correcting a typographical error in the definition of
``recover.'' As discussed in the preamble to the May 14, 1993, final
rule (58 FR 28671), EPA had intended to adopt the definition of
``recover'' developed by the American Society of Heating,
Refrigeration, and Air-Conditioning Engineers (ASHRAE). The ASHRAE
definition reads, ``to remove refrigerant in any condition from a
system and store it in an external container without necessarily
testing or processing it in any way'' (ASHRAE Guideline 3-1990).
However, EPA inadvertently omitted the phrase ``and store it in an
external container'' from the definition adopted in the final rule. EPA
is therefore revising and clarifying the definition by restoring this
phrase to it.
2. Correction to Prohibition Sec. 82.154(g)
EPA is also correcting a typographical error in prohibition
Sec. 82.154(g). In the direct final regulation published on August 19,
1994, this prohibition incorrectly cited the definition of
``reclaimed'' at Sec. 82.152(q). The prohibition indicated that the
definition was found at Sec. 82.152(g). With the addition of the
definition of ``apprentice,'' the definition of ``reclaim'' will now
found be at Sec. 82.152(r), and EPA is revising prohibition
Sec. 82.154(g) to reflect this change.
3. Correction to Required Practice Sec. 82.156(e)
EPA is also restoring a phrase that was inadvertently omitted from
Sec. 82.156(e). This provision states, ``Refrigerant may be returned to
the appliance from which it is recovered or to another appliance owned
by the same person without being recycled or reclaimed, unless the
appliance is an MVAC-like appliance.'' EPA intended to except MVACs as
well as MVAC-like appliances from this provision, which might otherwise
be interpreted to supersede the recycling requirements of the section
609 refrigerant recycling rule published on July 14, 1992. EPA has
always intended the section 609 regulation to govern the servicing of
MVACs. Thus, EPA is revising the provision to read, ``Refrigerant may
be returned to the appliance from which it is recovered or to another
appliance owned by the same person without being recycled or reclaimed,
unless the appliance is an MVAC or MVAC-like appliance.''
4. Correction to Reclaimer Certification Provisions
In the direct final rule published on August 19, 1994, EPA revised
the reclaimer certification provisions at Sec. 82.164 to reflect EPA's
adoption of the updated ARI 700-1993 industry standard for reclaimed
refrigerant. As discussed in the preamble to the direct final rule (59
FR 42951), the revised standard differs from its predecessor, ARI 700-
1988, in three main respects: (1) ARI 700-1993 includes eleven
additional refrigerants, (2) ARI 700-1993 doubles the permissible water
levels in liquid phase R-11 and R-113, and (3) where ARI 700-1988
allowed 0.5 as the maximum percentage by weight of ``other
refrigerants,'' ARI 700-1993 allows 0.50 as the maximum percentage by
weight of ``all other organic impurities, including other
refrigerants.''
Also as noted in the direct final rule, EPA made the change to the
reclaimer certification provisions to maintain consistency between
these provisions and the definition of reclaim. The revised provisions
were intended to apply to reclaimers who became certified for the first
time after October 18, 1994, the effective date of the direct final
rule. EPA did not intend to require refrigerant reclaimers who had
already been certified to become certified again. However, certified
reclaimers have pointed out that the revised provisions could be
interpreted to require recertification.
EPA considers such recertification unnecessary. As stated in the
preamble to the final rule, the goal of reclaimer certification is to
ensure that reclaimers are ``fully aware of the regulations regarding
reclaimed refrigerant'' (58 FR 28700). Certified reclaimers have
already demonstrated, through their original certifications, that they
are aware of most of the regulations regarding reclaimed refrigerant,
including the basic requirements to purify and analyze the refrigerant,
to limit emissions to 1.5 percent of the refrigerant reclaimed, and to
dispose of wastes from the reclamation process in accordance with all
applicable laws and regulations. The only requirements of which they
may not be aware are the changes to the ARI 700 standard enumerated
above. Any failure to accommodate these changes, while undesirable, is
not likely to have a significant adverse environmental or economic
impact.\2\ In fact, one of the changes represents a relaxation of the
ARI 700-1988 standard.
---------------------------------------------------------------------------
\2\The one possible exception to this generalization is the
broadening of the scope of the standard to include 11 additional
refrigerants. If a new refrigerant was not reclaimed because the
reclaimer did not know the purity standards for that refrigerant,
the dirty refrigerant could harm air-conditioning and refrigeration
equipment in which it was subsequently used. However, the 11
refrigerants added to the standard currently make up only a small
fraction of the refrigerant that is reclaimed. Moreover, EPA
believes that most certified reclaimers, when faced with a
refrigerant whose purity standards they do not know, are likely to
make an effort to discover these purity standards in order to retain
their customers.
---------------------------------------------------------------------------
Moreover, based on information submitted by certified reclaimers
and the Air-Conditioning and Refrigeration Institute (the industry
standard-setting group that developed ARI 700-1988 and -1993), EPA
believes that most certified reclaimers either are aware or can be made
aware of the new standard without recertifying. For instance, many
reclaimers either participated in the development of ARI 700-1993
standard themselves or work with analytical laboratories that
participated in the development of the standard. In addition, EPA plans
to distribute copies of the direct final regulation, which includes the
updated standard, to all certified reclaimers.
Finally, EPA will be undertaking a rulemaking in the near future to
address refrigerant purity and transfer issues generally. EPA will be
considering changes to the reclaimer certification provisions at that
time. This will give the Agency an opportunity to revisit the
recertification issue, if necessary.
Thus, in order to clarify that certified refrigerant reclaimers
need not recertify, EPA is adding a sentence to the reclaimer
certification provisions that states ``Persons who certified under
Sec. 82.164 before October 18, 1994, need not recertify under this
section.''
5. Comments Outside the Scope of This Rulemaking
EPA received some comments that related to issues outside the scope
of this rulemaking. One commenter advocated requiring certification of
persons who dispose of small appliances. This commenter argued that
disposers might not only release refrigerants, violating Clean Air Act
requirements, but could be ``liable as cogenerators'' under other
environmental statutes. EPA did not intend to request comment on
whether disposers should be certified in the proposed rule published
August 15, 1994; the part of the proposed definition of technician that
excluded disposers of small appliances was identical to that in the
final rule published May 14, 1993. The rationale for this exclusion may
be found at 58 FR 28705.
The same commenter recommended that all certification programs that
conform to Sec. 82.161 be eligible for state required continuing
education credits for licensing. Although EPA believes that this may be
a good idea, eligibility for state continuing education credits is
determined by the states, not EPA.
One commenter stated that EPA should amend the rule to permit
transfers of used, unreclaimed refrigerant among subsidiaries of the
same company. This issue is outside the scope of this rulemaking.
However, EPA plans to undertake a rulemaking in the near future that
will address refrigerant purity and transfer issues. EPA will take the
comment into consideration at that time.
III. Summary of Supporting Analysis
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether this regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive Order.
It has been determined by OMB and EPA that this amendment to the
final rule is not a ``significant regulatory action'' under the terms
of Executive Order 12866 and is therefore not subject to OMB review
under the Executive Order.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601-602, requires that
Federal agencies examine the impacts of their regulations on small
entities. Under 5 U.S.C. 604(a), whenever an agency is required to
publish a general notice of proposed rulemaking, it must prepare and
make available for public comment an initial regulatory flexibility
analysis (RFA). Such an analysis is not required if the head of an
agency certifies that a rule will not have a significant economic
impact on a substantial number of small entities, pursuant to 5 U.S.C.
605(b).
EPA believes that any impact that this amendment will have on the
regulated community will serve only to provide relief from otherwise
applicable regulations, and will therefore limit the negative economic
impact associated with the regulations previously promulgated under
Section 608. An examination of the impacts on small entities was
discussed in the final rule (58 FR 28660). That final rule assessed the
impact the rule may have on small entities. A separate regulatory
impact analysis accompanied the final rule and is contained in Docket
A-92-01. I certify that this amendment to the refrigerant recycling
rule will not have any additional negative economic impacts on any
small entities.
C. Paperwork Reduction Act
Any information collection requirements in a rule must be submitted
for approval to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Because no additional
informational collection requirements are required by this amendment,
EPA has determined that the Paperwork Reduction Act does not apply to
this rulemaking and no new Information Collection Request document has
been prepared.
IV. Effective Date and Public Participation
This amendment is effective upon signature by the Administrator.
This expedited effective date is necessary to effectuate the provision
of the amendment extending the November 14, 1994 deadline for
certification of technicians that successfully completed voluntary
certification programs. The provisions regarding grandfathering do not
place any significant burdens on affected parties prior to thirty days
after publication, although programs that are disapproved for
grandfathering will have to notify their participants within thirty
days of EPA's disapproval of their application. The provision acts to
allow grandfathering of voluntary certification programs previously
barred under the regulations. The clarification of the scope of the
technician requirements also should not place any burden on affected
parties. The provision clarifies the scope of the activities covered by
the certification and evacuation requirements. This relieves persons
performing activities that might have been previously covered by the
requirements from complying with the requirements. The apprenticeship
exemption is similar. Given the lack of burden upon affected parties
and the need to grant an immediate exemption from the November 14, 1994
deadline, the Agency finds good cause for expediting the effective date
of the rule. EPA believes that this is consistent with 5 U.S.C.
553(d)(1) and (3).
Three provisions of this rule are being issued without notice and
comment. The first provision corrects the typographical error in
Sec. 82.154(g) mistakenly citing the definition of ``reclaimed'' as
Sec. 82.152(g) instead of Sec. 82.152(q). The error was introduced in
the direct final rule of August 19, 1994 (59 FR 42950). The context of
the citation makes it clear that this is an erroneous citation, thus
raising no need for public notice of its correction. The Agency
believes that this circumstance provides good cause to find public
notice of this amendment unnecessary under sections 307(d) and
553(a)(3)(B).
The second provision adds MVACs to the exclusion of MVAC-like
appliances from Sec. 82.156(e). That section allows refrigerant to be
returned to the appliance from which it is recovered or another
appliance owned by the same person without being recycled or reclaimed.
Applying Sec. 82.156(e) to allow the return of refrigerant to MVACs
without being recycled or reclaimed would directly conflict with the
requirements for ``properly using'' equipment for servicing MVACs under
section 609 of the Clean Air Act, as amended and EPA's implementing
regulations. See Sec. 82.30(e). This conflict was the reason that MVAC-
like equipment was excluded from Sec. 82.156(e) in the May 1993 final
rule (59 FR 28708). The rationale applies even more strongly to MVACs
themselves, which were erroneously omitted from the exclusion. This is
a minor correction that merely eliminates the conflict between the two
provisions and any resulting confusion over which provision governs.
This correction does no more than clarify the regulations to be
consistent with the section 609 regulations and the current general
understanding throughout the industry. These circumstances provide good
cause for the Agency to find public notice of this amendment
unnecessary under sections 307(d) and 553(a)(3)(B).
The third provision clarifies the Agency's position on
certification of reclaimers under Sec. 82.164. In the August 19, 1994
direct final rule (59 FR 42950), EPA updated the refrigerant purity
standards in accordance with the most recent industry standards, and
set a new deadline of October 18, 1994 for reclaimers to be certified
under these standards. The Agency intended this change to require
reclaimers to certify under the new, rather than the old, standard, but
only for those reclaimers that certified for the first time after the
October 1994 effective date. It did not intend to require
recertification of already certified reclaimers.
The deadline for certification under the new standard has already
passed, and all reclaimers that have not recertified could be
considered technically out of compliance. This makes it important for
the Agency to clarify the coverage of the rule expediently, and makes
the delay of a notice and comment rulemaking procedure contrary to the
public interest. The Agency finds that these circumstances provide good
cause under sections 307(d) and 553(a)(3)(B) to proceed with this
rulemaking without public notice.
V. Judicial Review
Under Section 307(b)(1) of the Act, EPA finds that these
regulations are of national applicability. Accordingly, judicial review
of this action is available only by the filing of a petition for review
in the United States Court of Appeals for the District of Columbia
Circuit within sixty days of publication of this action in the Federal
Register. Under Section 307(b)(2), the requirements of this rule may
not be challenged later in judicial proceedings brought to enforce
those requirements.
List of Subjects in 40 CFR Part 82
Environmental protection, Administrative practice and procedure,
Air pollution control, Chemicals, Chlorofluorocarbons,
Hydrochlorofluorocarbons, Recovery and recycle, Reporting and
recordkeeping requirements, Stratospheric ozone layer.
Dated: October 28, 1994.
Carol M. Browner,
Administrator.
Title 40, Code of Federal Regulations, part 82, is amended to read
as follows:
PART 82--PROTECTION OF STRATOSPHERIC OZONE
1. The authority citation for part 82 continues to read as follows:
Authority: 42 U.S.C. 7414, 7601, 7671-7671q.
2. Section 82.152 is amended by redesignating paragraphs (u)
through (y) as (w) through (aa), redesignating paragraphs (b) through
(t) as paragraphs (c) through (u), revising newly designated paragraphs
(o), (s), and (z), and by adding new paragraphs (b), (v), and (bb) to
read as follows:
Sec. 82.152 Definitions.
* * * * *
(b) Apprentice means any person who is currently registered as an
apprentice in service, maintenance, repair, or disposal of appliances
with the U.S. Department of Labor's Bureau of Apprenticeship and
Training (or a State Apprenticeship Council recognized by the Bureau of
Apprenticeship and Training). If more than two years have elapsed since
the person first registered as an apprentice with the Bureau of
Apprenticeship and Training (or a State Apprenticeship Council
recognized by the Bureau of Apprenticeship and Training), the person
shall not be considered an apprentice.
* * * * *
(o) Opening an appliance means any service, maintenance, or repair
on an appliance that would release class I or class II refrigerant from
the appliance to the atmosphere unless the refrigerant were recovered
previously from the appliance. Connecting and disconnecting hoses and
gauges to and from the appliance to measure pressures within the
appliance and to add refrigerant to or recover refrigerant from the
appliance shall not be considered ``opening.''
* * * * *
(s) Recover refrigerant means to remove refrigerant in any
condition from an appliance and to store it in an external container
without necessarily testing or processing it in any way.
* * * * *
(v) Refrigerant circuit means the parts of an appliance that are
normally connected to each other (or are separated only by internal
valves) and are designed to contain refrigerant.
* * * * *
(z) Technician means any person who performs maintenance, service,
or repair that could be reasonably expected to release class I or class
II refrigerants from appliances, except for MVACs, into the atmosphere.
Technician also means any person who performs disposal of appliances,
except for small appliances, MVACs, and MVAC-like appliances, that
could be reasonably expected to release class I or class II
refrigerants from the appliances into the atmosphere. Performing
maintenance, service, repair, or disposal could be reasonably expected
to release refrigerants only if the activity is reasonably expected to
violate the integrity of the refrigerant circuit. Activities reasonably
expected to violate the integrity of the refrigerant circuit include
activities such as attaching and detaching hoses and gauges to and from
the appliance to add or remove refrigerant or to measure pressure and
adding refrigerant to and removing refrigerant from the appliance.
Activities such as painting the appliance, re-wiring an external
electrical circuit, replacing insulation on a length of pipe, or
tightening nuts and bolts on the appliance are not reasonably expected
to violate the integrity of the refrigerant circuit. Performing
maintenance, service, repair, or disposal of appliances that have been
evacuated pursuant to Sec. 82.156 could not be reasonably expected to
release refrigerants from the appliance unless the maintenance,
service, or repair consists of adding refrigerant to the appliance.
Technician includes but is not limited to installers, contractor
employees, in-house service personnel, and in some cases, owners.
* * * * *
(bb) Voluntary certification program means a technician testing
program operated by a person before that person obtained approval of a
technician certification program pursuant to Sec. 82.161(c).
Sec. 82.154 [Amended]
3. Section 82.154 is amended by revising paragraph (g)(1); by
removing paragraph (l); by redesignating paragraphs (m) through (o) as
(l) through (n) respectively; by redesignating newly designated
paragraphs (m)(2) through (m)(6) as (m)(3) through (m)(7) respectively;
by adding paragraphs (m)(2) and (m)(8); and by revising paragraphs
(m)(6) and (m)(7) to read as follows:
Sec. 82.154 Prohibitions.
* * * * *
(g) * * *
(1) The class I or class II substance has been reclaimed as defined
at Sec. 82.152(r);
* * * * *
(m) * * *
(2) The buyer has successfully completed a voluntary certification
program requesting approval under Sec. 82.161(g) by December 9, 1994.
This paragraph (m)(2) expires on May 15, 1995.
* * * * *
(6) The refrigerant is contained in an appliance, and after January
9, 1995, the refrigerant is contained in an appliance with a fully
assembled refrigerant circuit;
(7) The refrigerant is charged into an appliance by a certified
technician or an apprentice during maintenance, service, or repair; or
(8) The refrigerant is charged into an appliance by a technician
who successfully completed a voluntary certification program requesting
approval under Sec. 82.161(g) by December 9, 1994. This paragraph
(m)(8) expires on May 15, 1995.
4. Section 82.156 is amended by revising paragraph (a) introductory
text and by revising paragraphs (a)(1)(i), (a)(2)(i) introductory text,
and (e) to read as follows:
Sec. 82.156 Required practices.
(a) Effective July 13, 1993, all persons disposing of appliances,
except for small appliances, MVACs, and MVAC-like appliances must
evacuate the refrigerant in the entire unit to a recovery or recycling
machine certified pursuant to Sec. 82.158. All persons opening
appliances except for MVACs for maintenance, service, or repair must
evacuate the refrigerant in either the entire unit or the part to be
serviced (if the latter can be isolated) to a system receiver or a
recovery or recycling machine certified pursuant to Sec. 82.158.
Effective January 9, 1995, certified technicians must verify that the
applicable level of evacuation has been reached in the appliance or the
part before it is opened.
(1) * * *
(i) Evacuation of the appliance to the atmosphere is not to be
performed after completion of the maintenance, service, or repair, and
the maintenance, service, or repair is not major as defined at
Sec. 82.152(k); or
* * * * *
(2)(i) If evacuation of the appliance to the atmosphere is not to
be performed after completion of the maintenance, service, or repair,
and if the maintenance, service, or repair is not major as defined at
Sec. 82.152(k), the appliance must:
* * * * *
(e) Refrigerant may be returned to the appliance from which it is
recovered or to another appliance owned by the same person without
being recycled or reclaimed, unless the appliance is an MVAC or MVAC-
like appliance.
* * * * *
5. Section 82.161 is amended by revising paragraph (a) introductory
text; by removing the word ``Persons'' and adding in its place
``Technicians'' in paragraphs (a)(2) through (a)(5); by revising
paragraph (a)(1), by revising paragraph (g); and by adding paragraph
(a)(6) to read as follows:
Sec. 82.161 Technician certification.
(a) Effective November 14, 1994, technicians, except technicians
who successfully completed voluntary certification programs that apply
for approval under Sec. 82.161(g) by December 9, 1994, must be
certified by an approved technician certification program under the
requirements of this paragraph (a). Effective May 15, 1995, all
technicians must be certified by an approved technician certification
program under the requirements of this paragraph (a).
(1) Technicians who maintain, service, or repair small appliances
as defined in Sec. 82.152(x) must be properly certified as Type I
technicians.
* * * * *
(6) Apprentices are exempt from this requirement provided the
apprentice is closely and continually supervised by a certified
technician while performing any maintenance, service, repair, or
disposal that could reasonably be expected to release refrigerant from
appliances into the environment. The supervising certified technician
is responsible for ensuring that the apprentice complies with this
subpart.
* * * * *
(g)(1) Any person seeking approval of a technician certification
program may also seek approval to certify technicians who successfully
completed a voluntary certification program operated previously by that
person. Interested persons must submit to the Administrator at the
address in Sec. 82.160(a) verification that the voluntary certification
program substantially complied with most of the standards of
Sec. 82.161(c) and appendix D of subpart F of this part. If the program
did not test or train participants on some elements of the test subject
material, the person must submit supplementary information on the
omitted material to the Administrator for approval and verify that the
approved information will be provided to technicians pursuant to
section j of appendix D of subpart F of this part. In this case, the
person may not issue a certification card to a technician until he or
she has received a signed statement from the technician indicating that
the technician has read the supplementary information. Approval may be
granted for Type I, Type II, or Type III certification, or some
combination of these, depending upon the coverage in the voluntary
certification program of the information in each Type. In order to have
their voluntary programs considered for approval, persons must submit
applications both for approval as a technician certification program
and for approval as a voluntary program by December 9, 1994.
(2)(i) Persons who are approved to certify technicians who
successfully completed their voluntary programs pursuant to
Sec. 82.161(g)(1) must:
(A) Notify technicians who successfully completed their voluntary
programs of the Administrator's decision within 60 days of that
decision;
(B) Send any supplementary materials required pursuant to
Sec. 82.161(g)(1) to technicians who successfully completed their
voluntary programs within 60 days of the Administrator's decision; and
(C) Send certification cards to technicians who successfully
completed their voluntary programs within 60 days of receipt of signed
statements from the technicians indicating that the technicians have
read the supplementary information.
(ii) Persons who are disapproved to certify technicians who
successfully completed their voluntary programs pursuant to
Sec. 82.161(g)(1) must notify technicians who successfully completed
their voluntary programs of the Administrator's decision within 30 days
of that decision.
(iii) Persons who withdraw applications for voluntary program
approval submitted pursuant to Sec. 82.161(g)(1) must inform
technicians who successfully completed their voluntary programs of the
withdrawal by the later of 30 days after the withdrawal or December 9,
1994.
(3) Technicians who successfully completed voluntary certification
programs may receive certification in a given Type through that program
only if:
(i) The voluntary certification program successfully completed by
the technician is approved for that Type pursuant to Sec. 82.161(g)(1);
(ii) The technician successfully completed the portions of the
voluntary certification program that correspond to that Type; and
(iii) The technician reads any supplementary materials required by
the Administrator pursuant to Sec. 82.161(g)(1) and section j of
appendix D of subpart F of this part, and returns the signed statement
required by Sec. 82.161(g)(1).
* * * * *
6. Section 82.164 is amended by revising the introductory text to
read as follows:
Sec. 82.164 Reclaimer certification.
Effective October 18, 1994, all persons reclaiming used refrigerant
for sale to a new owner, except for persons who properly certified
under this section prior to October 18, 1994, must certify to the
Administrator that such person will:
* * * * *
7. Appendix D to subpart F is amended by revising section j to read
as follows:
Appendix D to Part 82 Subpart F--Standards for Becoming a Certifying
Program for Technicians
* * * * *
j. Grandfathering
EPA will grandfather technicians who successfully completed
voluntary programs whose operators seek and receive EPA approval to
grandfather these technicians, in accordance with Sec. 82.161(g). As
part of this process, these certifying programs may be required to send
EPA-approved supplementary information to ensure the level of the
technicians' knowledge. Technicians will be required to read this
supplementary information as a condition of certification. The
certifying programs will also issue new identification cards meeting
the requirements specified above.
* * * * *
[FR Doc. 94-27532; Filed 11-9-94; 8:45 am]
BILLING CODE 6560-50-P