[Federal Register Volume 59, Number 221 (Thursday, November 17, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-28295]


[[Page Unknown]]

[Federal Register: November 17, 1994]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[FRL-5106-3]

 

Protection of Stratospheric Ozone: Leak Repair; Partial Stay

AGENCY: Environmental Protection Agency (EPA).

ACTION: Partial stay of final rule.

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SUMMARY: This action promulgates a temporary stay of certain federal 
rules requiring the repair and/or retrofit of appliances containing 
ozone-depleting substances contained in the regulations implementing 
the National Recycling Program. EPA has already issued an action 
staying the effectiveness of 40 CFR 82.156(i), as they apply to 
industrial process refrigeration equipment only, including the 
applicable compliance dates, for a period of three months, pursuant to 
Clean Air Act section 307(d)(7)(B), 42 U.S.C. 7607(d)(7)(B), which 
provides the Administrator authority to stay the effectiveness of a 
rule during reconsideration (August 17, 1994, 59 FR 42169).
    This action promulgates a partial stay of the effectiveness of 40 
CFR 82.156(i), and applicable compliance dates, beyond the three months 
pursuant to Clean Air Act sections 301(a)(1), 42 U.S.C. 7601(a)(1), but 
only to the extent necessary to complete reconsideration (including any 
appropriate regulatory action) of the rules in question.

DATES: Effective December 16, 1994.

ADDRESSES: Comments and materials supporting this rulemaking are 
contained in Public Docket No. A-92-01, Waterside Mall (Ground Floor) 
Environmental Protection Agency, 401 M Street, SW., Washington, DC 
20460 in room M-1500. Dockets may be inspected from 8 a.m. until 5:30 
p.m., Monday through Friday. A reasonable fee may be charged for 
copying docket materials.

FOR FURTHER INFORMATION CONTACT: Cynthia Newberg, Program 
Implementation Branch, Stratospheric Protection Division, Office of 
Atmospheric Programs, Office of Air and Radiation (6205-J), 401 M 
Street, SW., Washington, DC 20460, (202)233-9729. The Stratospheric 
Ozone Information Hotline at 1-800-296-1996 can also be contacted for 
further information.

SUPPLEMENTARY INFORMATION: The contents of this preamble are listed in 
the following outline:

I. Background
II. Rules To Be Stayed and Reconsidered
III. Issuance of a Three-Month Stay
IV. Proposed Additional Temporary Stay
V. Comments Received
VI. Response to Comments
VII. Effective Date

I. Background

    On July 13, 1993, the Chemical Manufacturers Association (CMA) sent 
to the United States Environmental Protection Agency (EPA) a petition 
for reconsideration of the Refrigerant Recycling Rule, promulgated May 
14, 1993, (58 FR 28660), particularly the leak repair provisions under 
40 CFR 82.156(i) as they concern industrial process refrigeration 
equipment.1 On that same date, CMA filed a petition in the United 
States Court of Appeals for the District of Columbia Circuit seeking 
review of this Refrigerant Recycling Rule (Chemical Manufacturers 
Association v. Browner, et al., D.C. Cir. Docket 93-1444.) As part of a 
settlement agreement signed by EPA and the CMA on May 20, 1994, EPA 
agreed to propose changes to the appropriate sections of the rules. A 
notice of the settlement agreement was published on June 14, 1994 (59 
FR 30584), pursuant to the Clean Air Act section 113(g). Although 
several comments regarding the settlement agreement were submitted 
during the notice and comment period, none of them opposed the 
settlement or suggested that EPA not revise the regulation.
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    \1\Industrial process refrigeration is defined in Sec. 82.152(g) 
of the final regulations (58 FR 28713). The definition states that 
``industrial process refrigeration means, for the purposes of 
Sec. 82.156(i), complex customized appliances used in the chemical, 
pharmaceutical, petrochemical and manufacturing industries. This 
sector also includes industrial ice machines and ice rinks.''
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    The settlement agreement set a tight deadline for the completion of 
rulemaking, requiring EPA to propose changes by December 1, 1994,2 
and to take final action by June 1, 1995. EPA has issued a temporary 
stay of Sec. 82.156(i) as it relates to industrial process equipment, 
and initiated reconsideration of this provision.
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    \2\The settlement agreement originally specified that a proposal 
be signed by September 1, 1994. Through a subsequent modification to 
the settlement agreement this date was revised.
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II. Rules To Be Stayed and Reconsidered

    Final regulations published on May 14, 1993 (58 FR 28660), 
establish a recycling program for ozone-depleting refrigerants 
recovered during the servicing and disposal of air-conditioning and 
refrigeration equipment. Together with the prohibition on venting 
during the service, repair, and disposal of class I and class II 
substances (see the listing notice January 22, 1991; 56 FR 2420) that 
took effect on July 1, 1992, these regulations should substantially 
reduce the emissions of ozone-depleting refrigerants. The petition 
filed by the CMA seeks for reconsideration of leak repair provisions 
under Sec. 82.156(i) as they relate to industrial process refrigeration 
equipment. In particular, the petitioners raised concerns regarding the 
ability to repair or retrofit some industrial process refrigeration 
equipment within the timeframes established by the final rule. CMA's 
concerns involve the need to shut down equipment and/or obtain custom 
built parts within the appropriate timeframes. CMA also raised the 
possibility of delays caused by other regulatory requirements related 
to changes at plants.
    EPA has evaluated information contained in CMA's petition and is 
now reconsidering the leak repair provisions. Moreover, EPA believes 
that this information warrants review and response pursuant to section 
307(d)(7)(B) of the Clean Air Act. In order to review and evaluate the 
ability of the owners and operators of industrial process refrigeration 
equipment to comply with the leak repair provisions when extenuating 
circumstances exist, EPA will reconsider the regulatory requirements 
applicable to repairing leaks in accordance with section 307(d) of the 
Clean Air Act.

III. Issuance of a Three-Month Stay

    On August 17, 1994, EPA issued a three-month administrative stay 
effective September 16, 1994, of provisions of Sec. 82.156(i) as they 
apply to industrial process refrigeration equipment, including all 
applicable compliance dates. These provisions had been promulgated as 
final federal rules requiring the reduction of emissions of ozone-
depleting substances during the servicing and disposal of air-
conditioning and refrigeration equipment (August 17, 1994, 59 FR 
42169). EPA is reconsidering these rules, as discussed above and, 
following the notice and comment procedures of section 307(d) of the 
Clean Air Act, will take appropriate action.3
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    \3\If, after reconsideration of these provisions, EPA determines 
that it is appropriate to impose leak repair requirements that are 
stricter than the existing rules, EPA will propose an adequate 
compliance period from the date of final action on reconsideration. 
EPA will seek to ensure that the affected parties are not unduly 
prejudiced by the Agency's reconsideration. Any EPA proposal 
regarding changes to the leak repair requirements and the 
appropriate compliance period would be subject to the notice and 
comment procedures of Clean Air Act section 307(d).
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IV. Proposed Additional Temporary Stay

    EPA will not be able to complete the reconsideration (including any 
appropriate regulatory action) of the rules stayed by the Administrator 
within the three-month period expressly provided in section 
307(d)(7)(B). That stay will expire on December 16, 1994. Therefore, 
EPA believes it is appropriate to extend temporarily the stay of the 
effectiveness of the leak repair requirements for industrial process 
refrigeration and applicable compliance dates from December 16, 1994, 
until EPA completes final rulemaking action upon reconsideration.
    Because the settlement agreement between EPA and CMA set a tight 
deadline for the completion of the rulemaking, EPA is reconsidering the 
rules in question as expeditiously as practicable. However, EPA will 
not be able to complete the reconsideration process during the three-
month administrative stay of these regulations. EPA will not be able to 
issue proposed action, seek public comment, and take final action 
before the temporary stay expires on December 16, 1994.
    As proposed, this action will only remain effective to the extent 
necessary to complete reconsideration of the rules in question. The 
settlement agreement between EPA and CMA expressly requires that final 
action regarding reconsideration be signed by June 1, 1994. Therefore, 
the stay would expire when the final action regarding the 
reconsideration of the leak repair requirements become effective.

V. Comments Received

    EPA received five comments concerning the proposal to extend the 
administrative stay beyond the three months expressly provided in 
section 307(d)(7)(B). All the commenters agreed with the need for such 
an extension. Two comments discussed some of the specific reasons why 
it is not practical for the owners and operators of industrial process 
refrigeration equipment to comply with the requirements originally 
promulgated under Sec. 82.156(i). The reasons included, but were not 
limited to:

--the need for a process shutdown in order to complete certain repairs;
--delays stemming from compliance with other applicable federal, state, 
or local regulations; and
--the inability to receive the necessary parts and/or appropriate 
replacement refrigerant within the specified times.

    In addition, one commenter addressed the need for a stay to ensure 
that no enforcement action was initiated by EPA or undertaken in 
response to citizen suits, during the reconsideration of the leak 
repair requirements. The commenter was particularly concerned with the 
potential for unfair imposition of penalties during the pendency of the 
reconsideration. The commenter stated that while compliance personnel 
may have been advised of the settlement agreement, they are not legally 
required to refrain from imposing penalties. Penalties stemming from 
actions undertaken during reconsideration could be substantial.

VI. Response to Comments

    EPA agrees with the five commenters concerning the need for a stay. 
EPA believes that it is essential to continue staying the effectiveness 
of Sec. 82.156(i) and the applicable compliance dates, as these 
provisions relate to industrial process refrigeration equipment only. 
Therefore, through this action, EPA is extending the stay of 
Sec. 82.156(i) and the applicable compliance dates, for industrial 
process refrigerant only, until EPA completes reconsideration of these 
regulations in accordance with the settlement agreement reached between 
EPA and CMA. This stay will expire when the final action regarding 
Sec. 82.156(i) and compliance dates, with respect to industrial process 
refrigeration equipment are completed and effective.
    Based on internal Agency review, the regulatory language of this 
stay has been slightly modified for purposes of clarification.

VII. Effective Date

    This action will become effective on December 16, 1994, the date on 
which the administrative stay expires.

List of Subjects in 40 CFR Part 82

    Administrative practice and procedure, Air pollution control, 
Chemicals, Chlorofluorocarbons, Exports, Hydrochlorofluorocarbons, 
Imports, Interstate commerce, Nonessential products, Reporting and 
recordkeeping requirements, Stratospheric ozone layer.

    Dated: November 4, 1994.
Carol M. Browner,
Administrator.

    Part 82, chapter I, title 40, of the Code of Federal Regulations, 
is amended to read as follows:

PART 82--PROTECTION OF STRATOSPHERIC OZONE

    1. The authority citation for part 82 continues to read as follows:

    Authority: 42 U.S.C. 7414, 7601, 7671-7671q.

    2. Section 82.156 is amended by revising paragraph (i)(5) to read 
as follows:


Sec. 82.156   Required practices.

* * * * *
    (i) * * *
    (5) Rules stayed for reconsideration. Notwithstanding any other 
provisions of this subpart, the effectiveness of the 40 CFR 
82.156(i)(1), (i)(3), and (i)(4) as these provisions apply to 
industrial process refrigeration equipment only is stayed from December 
16, 1994, until the EPA takes final action on its reconsideration of 
these provisions. EPA will publish any such final action in the Federal 
Register.

[FR Doc. 94-28295 Filed 11-16-94; 8:45 am]
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