[Federal Register Volume 61, Number 213 (Friday, November 1, 1996)]
[Proposed Rules]
[Pages 56493-56496]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-28095]


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


ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82

[FRL-5645-3]
RIN 2060-AF36


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

SUMMARY: Through this action EPA is proposing to amend the Clean Air 
Act section 608 refrigerant recycling regulations to extend the 
effectiveness of the refrigerant purity requirements of Sec. 82.154 (g) 
and (h), which are currently scheduled to expire on December 31, 1996, 
until EPA adopts revised purity requirements. EPA initially extended 
these requirements in response to requests from the air-conditioning 
and refrigeration industry to avoid widespread contamination of the 
stock of chlorofluorocarbon (CFC) and hydrochlorofluorocarbon (HCFC) 
refrigerants that could result from the lapse of the purity standard. 
Such contamination would cause extensive damage to air-conditioning and 
refrigeration equipment, release of refrigerants, and refrigerant 
shortages with consequent price increases.
    EPA proposed a more flexible approach to ensuring the purity of 
refrigerants on February 29, 1996, and solicited public comment. EPA 
received significant comments regarding the potential delegation of 
authority and the unintentional creation of a monopoly. EPA believes 
prior to adopting a more flexible approach EPA must further consider 
these comments. EPA intends to issue a supplemental proposal that would 
revise several aspects of the February 29, 1996 proposal.
    Today EPA is proposing to extend the current reclamation 
requirements. This continuation will not result in any additional 
burden on the regulated community. Moreover, the retention of the 
reclamation requirement will protect the environment, public health, 
and consumers by ensuring that contaminated refrigerants are not vented 
or charged into equipment.

DATES: Comments must be received by December 2, 1996 unless a public 
hearing is held. A public hearing, if requested, will be held in 
Washington, DC. If such a hearing is requested, it will be held on 
November 12, 1996 at 9 a.m. Anyone who wishes to request a hearing 
should call Cindy Newberg at 202/233-9729 by November 8, 1996. If a 
public hearing is held, the comment period will be extended until 
December 16, 1996.

ADDRESSES: Comments and materials supporting this rulemaking are 
contained in Public Docket No. A-92-01, Waterside Mall (Ground Floor) 
Environmental Protection Agency, 401 M Street, SW., Washington, D.C. 
20460 in room M-1500. Dockets may be inspected from 8:00 a.m. until 
5:30 p.m., Monday through Friday. A reasonable fee may be charged for 
copying docket materials. Comments on this action should be addressed 
to Public Docket No, A 92-01 VIII.L at the above address.
    If a public hearing is held, it will be held at the Washington 
Information Center, Headquarters Services, Waterside Mall (ground 
floor) 401 M Street, SW., Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Cindy Newberg, Program Implementation 
Branch, Stratospheric Protection Division, Office of Atmospheric 
Programs, Office of Air and Radiation (6205-J), 401 M Street, SW., 
Washington, DC 20460, (202)233-9729. The Stratospheric Ozone 
Information Hotline at 1-800-296-1996 can also be contacted for further 
information. Interested persons may contact the Stratospheric 
Protection Hotline to learn if a hearing will be held and to obtain the 
date and location of any hearing. Any hearing will be strictly limited 
to the subject matter of this proposal.

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

I. Regulated Entities
II. Overview
III. Background
VI. Today's Action
V. Summary of Support Analysis

I. Regulated Entities

    Entities potentially regulated by this action are those that wish 
to recover, recycle, reclaim, sell, or distribute in interstate 
commerce refrigerants that contain chlorofluorocarbons (CFCs) and/or 
hydrochlorofluorocarbons (HCFCs). Regulated categories and entities 
include:

------------------------------------------------------------------------
                                                Example of regulated    
                 Category                             entities          
------------------------------------------------------------------------
Industry..................................  Reclaimers.                 
                                            Equipment manufacturers.    
                                            Air-conditioning and        
                                             refrigeration contractors  
                                             and technicians.           
                                            Owners and operators of     
                                             industrial process         
                                             refrigeration equipment.   
                                            Laboratories.               
                                            Plumbing, heating and       
                                             cooling contractors.       
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be affected by this action. Other types of entities 
not listed in the table could also be affected. To determine whether 
your company is regulated by this action, you should carefully examine 
the applicability criteria contained in Section 608 of the Clean Air 
Amendments of 1990; discussed in regulations published on May 14, 1993 
(59 FR 28660); and discussed below. If you have questions regarding the 
applicability of this action to a particular entity, consult the person 
listed in the preceding FOR FURTHER INFORMATION CONTACT section.

II. Overview

    Paragraphs 82.154(g) and (h) of 40 CFR part 82, subpart F set 
requirements for sale of used refrigerant, mandating that it meet 
certain purity standards. These requirements will expire on December 
31, 1996. EPA is considering whether it is appropriate to promulgate 
new, more flexible, requirements based on industry guidelines. To that 
end, EPA issued a Notice of Proposed Rulemaking (NPRM) on February 29, 
1996 (61 FR 7858) that addressed various issues including the adoption 
of a more flexible approach to reclamation. EPA has analyzed the public 
comments. EPA will issue a final rulemaking soon; however, EPA has 
decided not to complete promulgation of all the proposed changes 
discussed in that NPRM as part of one final rulemaking.
    The February 29, 1996, NPRM was an omnibus notice that addressed 
many aspects of 40 CFR Part 82, Subpart F. Amongst the various issues 
considered in that NPRM is the adoption of a more flexible approach to 
reclamation with the related adoption of third-party certification for 
laboratories and reclaimers. Other issues addressed in the NPRM include 
changes to the recordkeeping and reporting requirements for technician 
certification programs, the adoption of an updated

[[Page 56494]]

industry standard, amending the definitions of motor vehicle air-
conditioning-like appliances and small appliances, the adoption of 
formal revocation procedures for approved certification programs, 
transfers of refrigerant between subsidiaries, and clarifying the 
distinction between major and minor repairs. EPA planned to issue one 
final rulemaking later this year. Instead, after careful analysis, EPA 
intends to issue two notices: a final rulemaking completing many 
aspects of that NPRM; and a separate revised proposal notice 
reconsidering the adoption of a more flexible approach to reclamation 
and third-party certification for laboratories and reclaimers. EPA has 
determined that this course of action is necessary to provide 
sufficient opportunity for the Agency to fully consider a broad range 
of alternative structures for an effective program that ensures the 
quality of refrigerants.
    Central to the proposed adoption of a more flexible approach to 
reclamation, is the proposed adoption of third-party certification 
programs for both laboratories and reclaimers. Commenters have 
identified several specific concerns regarding the appropriateness of 
delegating various functions to third-parties, and whether EPA may 
unintentionally create a monopoly. Through today's notice, EPA is not 
signaling the Agency's agreement or disagreement with any of the 
comments received. EPA is merely indicating a need to further consider 
these comments. EPA believes a flexible approach to reclamation can be 
developed that avoids any inappropriate delegations and also does not 
force the creation of unwanted monopolies. However, the commenters have 
prompted EPA to consider other potential structures for such a program 
that vary significantly from what was proposed. To ensure that the 
public has adequate opportunity to comment, EPA intends to issue a 
revised proposal this winter.
    While EPA believes its appropriate to provide an opportunity for 
the public to comment on changes to the NPRM, a lapse in the current 
standards could result in widespread contamination of the stock of CFC 
and HCFC refrigerants and must be avoided. Such contamination would 
cause extensive damage to air-conditioning and refrigeration equipment, 
release of refrigerants, and refrigerant shortages with consequent 
price increases. Release of CFC and HCFC refrigerants has been found to 
deplete stratospheric ozone, resulting in increased human and 
environmental exposure to ultraviolet radiation. Increased exposure to 
ultraviolet radiation in turn can lead to serious health and 
environmental effects. Therefore, EPA is proposing to extend the 
effectiveness of the current refrigerant purity requirements, only 
until EPA can complete a rulemaking to adopt more flexible requirements 
that will still ensure refrigerant purity.

III. Background

    On May 14, 1993, EPA published final regulations establishing a 
recycling program for ozone-depleting refrigerants recovered during the 
servicing and disposal of air-conditioning and refrigeration equipment 
(58 FR 28660). These regulations include evacuation requirements for 
appliances being serviced or disposed of, standards and testing 
requirements for used refrigerant sold to a new owner, certification 
requirements for refrigerant reclaimers, and standards and testing 
requirements for refrigerant recycling and recovery equipment.
    When EPA promulgated the final rule, the Agency noted that further 
rulemaking would be required to address issues that had been raised 
during the comment period for the proposed rule (57 FR 58644). One of 
these issues was whether a standard for used refrigerant could be 
developed that would protect air-conditioning and refrigeration 
equipment, but would allow technicians to clean refrigerant themselves, 
rather than sending the refrigerant to an off-site reclaimer.
    The final rule published on May 14, 1993, requires that refrigerant 
sold to a new owner be reclaimed to the ARI Standard 700 of purity by a 
certified reclaimer (Sec. 82.154(g) and (h) referencing standard in 
Sec. 82.164 and the definition of reclaim found in Sec. 82.152). As 
discussed in the final rule, this requirement protects the purity of 
used refrigerant to prevent damage to air-conditioning and 
refrigeration equipment from the use of contaminated refrigerant. 
Equipment damage from contaminated refrigerant would result in costs to 
equipment owners, in releases of refrigerant from damaged equipment 
through increased leakage, servicing and replacement, and in reduction 
in consumer confidence in the quality of used refrigerant. This 
reduction in consumer confidence could lead to the premature retirement 
or retrofit of CFC or HCFC equipment since consumers would no longer 
believe that a sufficient stock of trustworthy refrigerants was 
available.
    Although the reclamation requirements contained in 82.154(g) and 
(h) would clearly protect equipment, EPA believed that a more flexible 
but as effective requirement should be developed, particularly for 
refrigerant transferred between owners whose equipment was similar and 
was serviced by the same contractor. However, the only existing 
standard at the time EPA promulgated the rule was ARI Standard 700, and 
the only agreed upon means of enforcing it was by limiting sale of used 
refrigerant to only certified reclaimers. Certified reclaimers, unlike 
contractors or technicians, are required to have the equipment 
available that can verify that the refrigerant meets the purity 
standards, thus ensuring its purity prior to selling the refrigerants.
    In order to encourage industry to explore the possibility of 
developing more flexible but still effective standards and technologies 
for purifying refrigerant, as well as more flexible means for ensuring 
compliance with purity standards, EPA adopted a commenter's suggestion 
and established an expiration date, or ``sunset,'' for the reclamation 
requirement. EPA accordingly made the reclamation requirements at 
Sec. 82.154(g) and (h) effective until May 15, 1995, two years after 
publication of the final rule. EPA believed that this two-year period 
would be sufficient for industry to develop new guidelines for reuse of 
refrigerant and for EPA to complete a rulemaking to adopt them if EPA 
determined that they would continue to reduce emissions to the lowest 
achievable level and maximize the recapture and recycling of 
refrigerants (58 FR 28679).
    In December, 1994, a committee representing a wide range of 
interests within the air-conditioning and refrigeration industry 
published Industry Recycling Guide (IRG-2): Handling and Reuse of 
Refrigerants in the United States. This document establishes 
requirements and recommendations for the reuse of refrigerant in a 
number of different situations, including refrigerant transfers on the 
open market and between equipment owned by different people but 
serviced by the same contractor. EPA began pursuing a rulemaking to 
adopt the IRG-2 requirements. However, because the original sunset date 
was approaching, EPA also pursued a rulemaking to extend the 
effectiveness of Sec. 82.154(g) and (h) (60 FR 14608). That rulemaking 
extended the effectiveness of the provisions until March 18, 1996. EPA 
believed that this extension would provide sufficient opportunity to 
develop and publish a proposed rule, take public comment, and develop 
and publish a final rule.
    EPA drafted a proposed rulemaking concerning the adoption of a more

[[Page 56495]]

flexible approach for ensuring refrigerant purity. However, several 
events beyond the agency's control delayed the EPA's ability to release 
this proposal prior to February 29, 1996. Therefore, at the urging of 
industry representatives, EPA extended the sunset date for the purity 
requirements to avoid a lapse of the reclamation requirements.
    Representatives of the air-conditioning and refrigeration industry 
expressed concern that any lapse in refrigerant purity requirements 
could result in a number of problems, including sloppy handling of 
refrigerant and dumping of contaminated refrigerant on the market. 
These problems would result in significant damage to equipment, release 
of refrigerant, and aggravated refrigerant shortages.
    Currently, the reclamation requirement encourages careful handling 
of refrigerant, because refrigerant that is irretrievably contaminated 
(for instance through mixture with other refrigerants) will not be 
accepted by any reclaimer, rendering it worthless. If this check is 
removed, sloppy handling may become widespread. This would not only 
lead to damage to equipment, but to the permanent loss of part of the 
stock of pure refrigerant through refrigerant mixture. Even in the best 
case in which the mixed refrigerant was properly disposed of, the 
limited supply of refrigerant would thereby be further reduced, 
necessitating more retrofit or replacement of existing equipment. 
Unfortunately, it is likely that the mixed refrigerant would often be 
used in air-conditioning and refrigeration equipment or vented rather 
than disposed of properly.
    The possibility of widespread dumping of refrigerant on the market 
has been raised by reports that contractors and ``recyclers'' are 
stockpiling used refrigerant. In some cases, dumping dirty refrigerant 
on the market might be attractive simply because it enables the seller 
of refrigerant to avoid the costs of reclamation; for others, it might 
be attractive because the refrigerant is unreclaimable and therefore 
worthless if analyzed or sent to a reclaimer. In either situation, such 
dumping would lead to widespread equipment damage and potential 
releases of refrigerant. In addition, since domestic CFC production 
ceased December 31, 1995, protecting the purity of the existing stock 
of CFC refrigerants is essential.

IV. Today's Action

    In response to these concerns, EPA is extending the effectiveness 
of the current reclamation requirements until the Agency can adopt 
replacement requirements. It was never EPA's intent to leave air-
conditioning and refrigeration equipment and refrigerant supplies 
unprotected by a purity standard, but only to replace the existing 
standard with a more flexible standard when that was developed. As 
discussed above, EPA is currently undertaking rulemaking to adopt a 
more flexible standard.

V. Summary of Supporting Analysis

A. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether this regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant'' regulatory action as 
one that is likely to lead to a rule that may:
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely and materially affect a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or tribal governments or communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlement, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined by OMB and EPA that this action to amend the 
final rule is not a ``significant regulatory action'' under the terms 
of Executive Order 12866 and is therefore not subject to OMB review 
under the Executive Order.

B. Unfunded Mandates Act

    Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded 
Mandates Act'') requires that the Agency prepare a budgetary impact 
statement before promulgating a rule that includes a Federal mandate 
that may result in expenditure by State, local, and tribal governments, 
in aggregate, or by the private sector, of $100 million or more in any 
one year. Section 203 requires the Agency to establish a plan for 
obtaining input from and informing, educating, and advising any small 
governments that may be significantly or uniquely affected by the rule.
    Under section 205 of the Unfunded Mandates Act, the Agency must 
identify and consider a reasonable number of regulatory alternatives 
before promulgating a rule for which a budgetary impact statement must 
be prepared. The Agency must select from those alternatives the least 
costly, most cost-effective, or least burdensome alternative that 
achieves the objectives of the rule, unless the Agency explains why 
this alternative is not selected or the selection of this alternative 
is inconsistent with law.
    Because this rulemaking is estimated to result in the expenditure 
by State, local, and tribal governments or private sector of less than 
$100 million in any one year, the Agency has not prepared a budgetary 
impact statement or specifically addressed the selection of the least 
costly, most cost-effective, or least burdensome alternative. Because 
small governments will not be significantly or uniquely affected by 
this rule, the Agency is not required to develop a plan with regard to 
small governments. As discussed in this preamble, this rule merely 
extends the current reclamation requirements during consideration of a 
more flexible approach that may result in reducing the burden of part 
82 Subpart F of the Stratospheric Protection regulations on regulated 
entities, including State, local, and tribal governments or private 
sector entities.

C. Paperwork Reduction Act

    There is no additional information collection requirements 
associated with this rulemaking EPA has determined that the Paperwork 
Reduction Act does not apply. The initial section 608 final rulemaking 
did address all recordkeeping associated with the refrigerant purity 
provisions. An Information Collection Request (ICR) document was 
prepared by EPA and approved by the Office of Management and 
Budget(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
This ICR is contained in the public docket A-92-01.

D. Regulatory Flexibility Analysis

    EPA has determined that is not necessary to prepare a regulatory 
flexibility analysis in connection with this proposed rule because it 
continues existing requirements. Any impact this proposed rule will 
have on small entities will be to provide relief from regulatory 
burdens.

[[Page 56496]]

List of Subjects in 40 CFR Part 82

    Enviromental protection, Aerosols, air pollution control, 
Chemicals, Chlorofluorocarbons, Hydrochlorofluorocarbons, Labeling, 
Stratospheric ozone layer.

    Dated: October 28, 1996.
Carol M. Browner,
Administrator.
    Part 82, chapter I, title 40, of the code of Federal Regulations, 
is proposed to be amended as follows:

PART 82--PROTECTION OF STRATOSPHERIC OZONE

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

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

    2. Section 82.154 is amended by revising paragraphs (g) and (h) to 
read as follows:


Sec. 82.154  Prohibitions.

* * * * *
    (g) No person may sell or offer for sale for use as a refrigerant 
any class I or class II substance consisting wholly or in part of used 
refrigerant unless:
    (1) The class I or class II substance has been reclaimed as defined 
at Sec. 82.152;
    (2) The class I or class II substance was used only in an MVAC or 
MVAC-like appliance and is to be used only in an MVAC or MVAC-like 
appliance; or
    (3) The class I or class II substance is contained in an appliance 
that is sold or offered for sale together with the class I or class II 
substance.
    (h) No person may sell or offer for sale for use as a refrigerant 
any class I or class II substance consisting wholly or in part of used 
refrigerant unless:
    (1) The class I or class II substance has been reclaimed by a 
person who has been certified as a reclaimer pursuant to Sec. 82.164;
    (2) The class I or class II substance was used only in an MVAC or 
MVAC-like appliance and is to be used only in an MVAC or MVAC-like 
appliance; or
    (3) The class I or class II substance is contained in an appliance 
that is sold or offered for sale together with the class I or class II 
substance.
* * * * *
[FR Doc. 96-28095 Filed 10-31-96; 8:45 am]
BILLING CODE 6560-50-P