Federal Register, Volume 63 Issue 154 (Tuesday, August 11, 1998)

[Federal Register Volume 63, Number 154 (Tuesday, August 11, 1998)]
[Rules and Regulations]
[Pages 42728-42734]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-21525]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[FRL-6136-8]
RIN: 2060-AI07

Protection of Stratospheric Ozone: Halon Recycling and Recovery
Equipment Certification

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final determination.

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SUMMARY: Today's action consists of EPA's determination that it is
neither necessary nor appropriate under section 608(a)(2) of the Clean
Air Act as amended in 1990 (CAA or ``Act'') to issue a proposed rule
requiring the certification of recycling and recovery equipment for
halons; and further, that it is neither necessary nor appropriate under
section 608(a)(2) of the CAA to require that halons be removed only
through the use of certified equipment. Halons are gaseous or easily
vaporized halocarbons used primarily for fire and explosion protection
and are listed as group II, Class I ozone-depleting substances (ODSs)
under 40 CFR part 82, subpart A. Section 608 of the CAA directs EPA to
issue regulations which reduce the use and emissions of ozone-depleting
substances to the lowest achievable level and which maximize the
recapture and recycling of such substances. In developing regulations
concerning use, emissions and recycling, EPA considers both
technological and economic factors. The objective of an equipment
certification program, and associated provisions allowing the removal
of halons only through the use of certified equipment, would be to
verify that all recycling and recovery equipment sold was capable of
minimizing emissions, and that such certified equipment was in fact
used, thereby minimizing emissions during recycling and recovery
activities. Research completed by EPA in association with this
determination, however, suggests that the great majority of halon
recovery and recycling equipment currently in use or on the market
consists of highly efficient halon closed recovery systems achieving a
minimum recovery efficiency of 98%. Entities which perform the vast
majority of halon transfers employ these efficient units. Operations
utilizing less efficient halon recycling and recovery equipment and
methods are estimated to account for less than 1% of total annual halon
emissions in the United States during recycling and recovery
activities. With regard to halon emissions arising from the use of
inefficient, non-closed halon recovery and recycling devices, sections
82.270(d) and (e) of an EPA rule issued March 5, 1998 (63 FR 11084),
were intended to eliminate the use of such devices and restrict halon
recovery and recycling equipment to the highly efficient category of
closed recovery

[[Page 42729]]

systems currently widely used in industry. For these reasons, EPA
determines that no further environmental advances can be made in regard
to the CAA section 608 goals of reducing halon use or emissions, or
maximizing halon recapture or recycling, through a halon recovery and
recycling equipment certification program.

EFFECTIVE DATE: This direct final determination is effective on October
13, 1998 without further notice unless the EPA receives adverse comment
by September 10, 1998. If adverse comment is received, the EPA will
publish a timely withdrawal of the direct final determination in the
Federal Register and inform the public that the determination will not
take effect.

ADDRESSES: Comments on this determination should be sent to Docket No.
A-98-37, U.S. Environmental Protection Agency, OAR Docket and
Information Center, Room M-1500, Mail Code 6102, 401 M Street, S.W.,
Washington, D.C. 20460. The docket may be inspected from 8:00 a.m.
until 5:30 p.m., weekdays. The docket phone number is (202) 260-7548,
and the fax number is (202) 260-4400. A reasonable fee may be charged
for copying docket materials. A second copy of any comments should also
be sent to Lisa Chang, U.S. Environmental Protection Agency,
Stratospheric Protection Division, 401 M Street, S.W., Mail Code 6205J,
Washington, D.C. 20460 if by mail, or at 501 3rd Street, N.W., Room
267, Washington, D.C. 20001 if comments are sent by courier delivery.

FOR FURTHER INFORMATION CONTACT: Lisa Chang at (202) 564-9742 or fax
(202) 565-1096, U.S. Environmental Protection Agency, Stratospheric
Protection Division, Mail Code 6205J, 401 M Street, S.W., Washington,
D.C. 20460.

SUPPLEMENTARY INFORMATION: The contents of this direct final
determination are listed in the following outline:

I. Background
A. Section 608 of the Clean Air Act
B. Sierra Club Suit
C. Halons
D. Today's Action
II. Basis for Today's Action
A. Halon Emissions
B. Current Practices
C. Existing Certification Programs
D. Prior Halon Regulation
E. Discussion and Conclusion
F. References
III. Administrative Requirements
A. Executive Order 12866
B. Regulatory Flexibility Act
C. Submission to Congress and the Comptroller General
D. Paperwork Reduction Act
E. Unfunded Mandates Requirement Act
F. Executive Order 13045--Children's Health
IV. Judicial Review

I. Background

A. Section 608 of the Clean Air Act

Section 608 of the CAA (42 U.S.C. 7671g) sets forth certain
requirements for a national recycling and emission reduction program
aimed at Class I and Class II ozone-depleting substances, including
halons, and their substitutes. Class I and Class II ozone-depleting
substances are designated as such under section 602 of the Act, in
accordance with the Montreal Protocol on Substances that Deplete the
Ozone Layer, an international agreement to which the United States is a
party. Section 608 further directs that the national recycling and
emission reduction regulations must ``reduce the use and emission of
such substances to the lowest achievable level,'' and ``maximize the
recapture and recycling of such substances.'' Section 608(a)(1) of the
Act provides for a national recycling and emission reduction program
with respect to Class I substances that are used as refrigerants;
section 608(a)(2) provides for such a program for all other Class I and
Class II substances, including halons.

B. Sierra Club Suit

The Sierra Club sued EPA in the U.S. District Court for the
District of Columbia on March 31, 1995, claiming that EPA had not
fulfilled its obligation to promulgate regulations establishing
standards and requirements regarding use and disposal for non-
refrigerant Class I and Class II substances under section 608(a)(2) of
the CAA. In a consent decree (notice of which was published on
September 17, 1996, in the Federal Register at 61 FR 48950) EPA agreed
to consider appropriate regulation of halons. Under the terms of the
consent decree, EPA agreed to take the following actions with regard to
halons: (1) To issue a proposed rule regarding a ban on the sale of all
halon blends and to take final action on the proposal; (2) to issue a
proposed rule or rules regarding the intentional release of halons
during repair and testing of equipment containing halons; training
concerning the use of such equipment; disposal of halons; and removal
or disposal of equipment containing halons at the end of the life of
such equipment; and to take final action on the proposal; and (3) to
issue either a proposed rule requiring the certification of recycling
and recovery equipment for halons and allowing the removal of halons
only through the use of certified equipment or a direct final
determination that no such rule is either necessary or appropriate
under section 608(a)(2) of the Clean Air Act. EPA addressed items (1)
and (2) with a proposed (62 FR 36428) and final (63 FR 11084) rule.
Today's action addresses item (3).
EPA's agreement in regard to item (3) was based in part on EPA's
commitment to complete a study assessing the feasibility of certifying
halon recycling and recovery equipment and allowing removal of halons
only through use of certified equipment. The study, ``Assessment of the
Need for a Halon Recovery/Recycling Equipment Certification Program''
(hereafter referred to as ``the halon recovery/recycling equipment
study,'' or ``EPA (1998)'') characterized the size and makeup of the
domestic halon recovery and recycling industry, its current practices
and equipment, and the likely environmental benefits achievable by its
further regulation. During May-June of 1998, the report was reviewed by
several technical experts as well as a larger group drawn from
stakeholder communities including industry, non-governmental
environmental organizations, and government. The report and reviewers'
comments are available in the Docket for this action. These materials
have provided an important foundation for today's direct final
determination.

C. Halons

Halons are gaseous or easily vaporized halocarbons used primarily
for putting out fires, but also for explosion protection. The two
halons most widely used in the United States are Halon 1211 and Halon
1301. Halon 1211 is used primarily in streaming applications; recovered
Halon 1211 is primarily used by the military and equipment distributors
to fill or recharge portable fire extinguishers. Some Halon 1211 is
also stockpiled and resold by commercial recycling facilities. Halon
1301 is typically used in total flooding applications; the market for
recovered Halon 1301 is driven primarily by servicers of halon fire
protection systems, the military, and large commercial interests
including airlines. System servicers use recovered Halon 1301 to
recharge systems, to stockpile for future sale, to sell to other
servicers, or to sell to military or commercial interests (EPA, 1998).
Very limited use of Halon 2402 exists in the United States as an
extinguishing agent in engine nacelles on older aircraft and in the
guidance system of Minuteman missiles. Although Halon 2402 is an

[[Page 42730]]

effective fire extinguishing agent, use in North America and Europe has
been very limited due to safety concerns (UNEP, 1994). Halon 2402 was
and continues to be used mainly in the Russian Federation and in other
countries with economies in transition (CEIT) (UNEP, 1998). Because of
the very limited use of Halon 2402, EPA's study, as well as the
discussions contained within this final determination, focus on
describing recovery and recycling practices for Halons 1211 and 1301.
Nevertheless, all EPA halon regulations and determinations, including
today's action, issued under Title VI of the CAA are intended to cover
all group II, Class I substances listed in appendix A to subpart A of
40 CFR part 82--that is, Halon 1211, Halon 1301, Halon 2402, and all
isomers of these substances. Halons are used in a wide range of fire
protection applications because they combine several marked advantages
over other extinguishing agents. For a further discussion of the
properties of halons for fire protection applications see 63 FR 11084.
Despite these advantages, halons are among the most ozone-depleting
chemicals in use today. With 0.2 ozone-depleting potential (ODP)
representing the threshold for classification as a Class I substance,
Halon 1301 has an estimated ODP of 10; Halon 1211 has an estimated ODP
of 3. Thus, while total halon production (measured in metric tons)
comprised just 2 percent of the total production of Class I substances
in 1986, halons represented 23 percent of the total estimated ozone
depletion attributable to Class I substances produced during that year.
Prior to the early 1990's, the greatest releases of halon into the
atmosphere occurred not in extinguishing fires, but during testing and
training, service and repair, and accidental discharges. Data generated
as part of the Montreal Protocol's technology assessment indicated that
only 15 percent of annual Halon 1211 emissions and 18 percent of annual
Halon 1301 emissions occur as a result of use to extinguish actual
fires. These figures indicated that significant gains could be made in
protecting the ozone layer by revising testing and training procedures
and by limiting unnecessary discharges through better detection and
dispensing systems for halon and halon alternatives. The fire
protection community began to conserve halon reserves in response to
the impending ban on the production and import of Halons 1211, 1301,
and 2402 that occurred January 1, 1994. Through standards, research,
and field practice, the fire protection community eliminated most
discharge testing with halons and minimized use of halon for testing
and training. Additionally, fire equipment distributors began to
service and maintain fire suppression equipment regularly to avoid
leaks, false discharges, and other unnecessary emissions.
Nevertheless, because of the significant environmental concern
associated with halons, EPA contemplated further regulatory activity to
strengthen already conservative halon use, transfer, and recycling
practices in the industry. On March 5, 1998, EPA issued a final rule
(63 FR 11084, hereafter referred to as ``the March 5 rule'')
establishing training requirements for technicians who handle halon-
containing equipment; banning releases of halons during the testing,
maintenance, repair, servicing, and disposal of halons and halon-
containing equipment and during technician training; and providing that
halons and halon-containing equipment may be disposed of only by
sending such halon or equipment for recycling or recovery,
respectively, by a facility operating in accordance with the voluntary
industry standards established by the National Fire Protection
Association (NFPA), ``NFPA 10'' and ``NFPA 12A,'' or by sending halon
for destruction by an EPA-approved method. This rule more fully
extended conservative practices throughout the fire protection and
halon recycling communities, and ensured continued observance of such
practices in the event of changes in the halon market conditions that
significantly contributed to their adoption. The effect of the March 5
rule on halon recycling and recovery practices is discussed further
below.

D. Today's Action

Today's action consists of EPA's determination that it is neither
necessary nor appropriate under section 608(a)(2) of the CAA to issue a
proposed rule requiring the certification of recycling and recovery
equipment for halons; and further, that it is neither necessary nor
appropriate under section 608(a)(2) of the CAA to require that halons
be removed only through the use of certified equipment. The principal
basis for this determination is that such requirements would provide no
significant advancement toward the objectives of reducing halon use or
emissions to lowest achievable levels, or maximizing their recapture
and recycling, as directed by section 608. The environmental gains that
could have been made in this regard through such requirements have
already been realized through recently promulgated EPA regulations
concerning halons (63 FR 11084).

II. Basis for Today's Action

A. Halon Emissions

Total annual Halon 1211 emissions (includes all legitimate--e.g.,
fire extinguishing--as well as incidental--e.g., transfer loss--
releases) in the United States has been estimated at 1,079 tonnes for
1997 (this is against a total stock for North America, including the
United States, of more than 27,000 tonnes of Halon 1211; UNEP, 1998;
EPA, 1998). Estimated temporal trends in halon emissions suggest that
emission data for 1997 are reasonably representative of recent and
near-future years; trends in emissions are briefly noted at the end of
this section. The quantity of Halon 1211 subjected to recovery attempts
for the same year, for the United States, is estimated at 298 tonnes
(EPA, 1998).
Facilities performing Halon 1211 recovery and recycling operations
can be grouped into three broad classes: large-scale commercial
recyclers, large servicers of halon extinguishers, and small servicers
of halon extinguishers. The numbers of facilities in each of these
categories, as well as the relative volume of Halon 1211 transfers
performed by each category, have recently been estimated. While
constituting the smallest number of such facilities, large-scale
commercial recyclers accounted for the greatest quantity of Halon 1211
transfers, and the relatively large number of entities in the small
servicer category accounted for a relatively small portion of halon
transfers (EPA, 1998; Table 1). In addition, the types of equipment and
practices employed among these groups of facilities have been
evaluated. In general, facilities were found to employ either highly
efficient, closed recovery units of the type called for under sections
82.270(d) and (e) of the March 5 rule, with halon recovery efficiencies
of approximately 98%; or pressure transfer and other non-closed halon
recovery systems and methods, with recovery efficiencies as low as 90%,
and of the type whose use sections 82.270(d) and (e) of the March 5
rule were designed to prohibit.
It was further estimated that of the 298 tonnes of Halon 1211
subjected to recovery attempts for 1997, approximately 95% is recovered
by large scale commercial recyclers and large servicers of halon
extinguishing systems using highly efficient closed recovery units, and
the remaining 5%

[[Page 42731]]

by small servicers utilizing a range of methods, including both high-
efficiency halon recovery units, as well as low-efficiency non-closed
equipment and methods. Annual Halon 1211 losses to the atmosphere
arising from transfers from each group, as a percentage of total annual
Halon 1211 emissions in the United States for 1997, are estimated at
-0.3% (large-scale commercial recyclers); -0.2% (large servicers of
halon extinguishers); and -0.1% (small servicers of halon
extinguishers) (EPA, 1998; Table 1). It should be noted that the rate
of Halon 1211 extinguisher decommissioning is expected to increase over
the next several years, leading to a slight increase in emissions due
to an increased volume of recovery and recycling activity (EPA, 1998),
followed by decreases projected through the year 2030 (UNEP, 1998).
Regarding Halon 1301, total annual emissions (again, including all
legitimate as well as incidental releases) in the United States was
estimated at 786 tonnes for 1997). This compares to a total North
America Halon 1301 stock of more than 17,000 tonnes (UNEP, 1998; EPA,
1998). Approximately 981 tonnes of Halon 1301 were subjected to
recovery attempts for the same year in the United States. The high
recovery rate relative to Halon 1211 reflects a higher demand for Halon
1301.
As with Halon 1211, the same three general classes of facilities
performing halon recovery and recycling operations can be identified
and their numbers and practices broadly characterized (Table 2).
Significant economic and operational differences between Halon 1211 and
Halon 1301 recovery and recycling practices and sectors exist. However,
research indicates that as with Halon 1211, approximately 95% of the
Halon 1301 recovered annually is recovered using highly efficient
closed recovery units, with the remaining 5% by a range of methods
including both high-efficiency closed recovery systems, as well as low-
efficiency, non-closed equipment and methods (Table 2). Annual Halon
1301 losses to the atmosphere arising from transfers from each group of
facilities performing recovery and recycling operations, expressed as a
percentage of total annual Halon 1301 emissions in the United States
for 1997, are estimated at -2% (large-scale commercial recyclers), -1%
(large servicers of halon extinguishers); and -0.1-1% (small servicers
of halon extinguishers) (EPA, 1998; Table 2). The rate at which Halon
1301 fire protection systems are decommissioned is expected to decrease
over the next several years, leading to a slight decrease in emissions,
with slowly declining emissions projected through the year 2030 (EPA,
1998; UNEP, 1998).

Table 1.--Halon 1211 Recovery and Recycling in the United States
[Data for 1997; EPA, 1998]
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(C) Percent (G)
of Halon 1211 (D) Quantity (E) Estimated Contribution
(B) Number of transferred by of Halon 1211 recovery (F) Estimated to Total U.S.
(A) Type of operation organizations these transferred efficiency of emissions Annual Halon
of this type organizations annually equipment used (tonnes/yr) 1211 Emissions
annually (tonnes/yr) (percent) \2\ (Percent) \3\
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Large-scale commercial recyclers........................ 4-6 60-65 179-194 98 3.6-3.9 -0.3
Large servicers of halon extinguishers.................. 20 30-35 89-104 98 1.8-2.1 -0.2
Small servicers of halon extinguishers.................. \4\ 5 15 90-98 0.3-1.5 -0.1
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\1\ Calculated by multiplying percent of Halon 1211 transferred by type of operation (column (C)) by 298 tonnes/yr, the estimated total quantity of
Halon 1211 subjected to recovery attempts in 1997.
\2\ Calculated by multiplying equipment transfer loss rate (100% minus estimated recovery efficiency of equipment, or column (E)) by total quantity of
Halon 1211 recovered by each type of operation (column (D)).
\3\ Calculated by dividing Halon 1211 estimated emissions for each type of operation (column (F)) in 1997 by the total mass of Halon 1211 emitted for
1997 (estimated at 1,079 tonnes).
\4\ Several hundred.

Table 2.--Halon 1301 Recovery and Recycling in the United States
[Data for 1997; EPA, 1998]
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(C) Percent
of Halon 1301 (D) Quantity
(B) Number of transferred of Halon 1301 (E) Estimated (F) Estimated (G) % of
(A) Type of operation organizations annually recovered and Recovery Emissions Total Annual
of this type (excludes recycled Efficiency of (tonnes/yr) Halon 1301
North Slope annually Equipment Used \2\ Emissions \3\
and military) (tonnes/yr)
------------------------------------------------------------------------------------------------\1\-----------------------------------------------------
Large-scale commercial recyclers........................ 4--6 70 686 98 14 -2
Large servicers of halon extinguishing systems.......... 12 25 245 98 5 -1
Small servicers of halon extinguishing systems.......... -100 5 49 90--98 1--5 -0.1-1%
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\1\ Calculated by multiplying percent of Halon 1301 transferred by type of operation (column (C)) by 981 tonnes/yr, the estimated total quantity of
Halon 1301 subjected to recovery attempts in 1997.
\2\ Calculated by multiplying equipment transfer loss rate (100% minus estimated recovery efficiency of equipment, or column (E)) by total quantity of
Halon 1301 recovered by each type of operation (column (D)).
\3\ Calculated by dividing Halon 1301 estimated emissions for each type of operation (column (F)) in 1997 by the total mass of Halon 1301 emitted for
1997 (estimated at 786 tonnes).

[[Page 42732]]

B. Current Practices

The recovery and recycling infrastructure for both Halon 1211 and
1301 has been in place for many years, but since the signing of the
Montreal Protocol, halon recovery and recycling have increased
markedly. As a result, related services and necessary equipment have
become widely available in the United States. Halon recovery and
recycling, in general, are performed by large-scale commercial halon
recycling concerns, large servicers of halon fire extinguishers, and
small servicers of halon fire extinguishers (see previous section for
further discussion). Research indicates that for Halon 1211 recovery
and recycling, all units currently on the market, and most units
currently in use, are highly efficient closed halon recovery systems,
with recovery efficiencies of 98% or greater (EPA, 1998). Research
similarly suggests that for Halon 1301 the majority of equipment
currently in use, and all equipment currently on the market, are highly
efficient halon closed recovery systems with recovery efficiencies
exceeding 98% (EPA, 1998).
Halon recovery and recycling equipment includes equipment that
processes Halon 1211, equipment that processes Halon 1301, equipment
capable of processing more than one halon, and units capable of
processing halon as well as other chemicals (EPA, 1998). The
manufacture of halon recovery, recycling, and reclamation equipment in
the United States has centered around several firms since 1980,
including Getz Manufacturing (a subsidiary of Amerex Fire International
Inc.), FRC International Corporation, Walter Kidde Aerospace, and
Neutronics Inc.
Halon 1211 recycling equipment manufacture was most vigorous in the
1980s, with the majority of sales occurring just prior to the ban on
halon manufacturing in January 1994. Over 1,000 Halon 1211 recovery/
recycling units have been sold worldwide, with approximately half of
these sales attributed to the U.S. military and Halon 1211
extinguishing system manufacturers in the United States. The market for
Halon 1211 recovery/recycling units appears to be virtually saturated
within the United States and equipment currently in use is expected to
last as long as halon recovery and recycling equipment is needed
domestically (EPA, 1998).
The high value of recovered Halon 1301 created a demand for
recovery/recycling units as early as 1980. Hundreds of early models of
relatively less-efficient recovery/recycling units were sold between
1980 and 1990, but sales of these units declined considerably with the
introduction of more efficient, effective systems in the late 1980s.
Consultation with industry experts suggests that it is highly unlikely
that many of these less efficient units are still in use today (EPA,
1998); it is believed that the majority of operations that perform
Halon 1301 transfers and recycling utilize systems that have recovery
efficiencies exceeding 98%.
In summary, recent research suggests that the great majority of
equipment currently in use or on the market for halon recovery and
recycling is highly efficient halon closed recovery systems achieving a
minimum recovery efficiency of 98%. Furthermore, the market for halon
recovery/recycling equipment is virtually saturated. Entities which
perform the vast majority of halon transfers employ these efficient,
closed halon recovery units. Although there is some number of
facilities performing halon transfers using devices with poor (e.g., 90
percent) recovery efficiencies, such operations at most are estimated
to account for approximately 1 percent of total halon emission in the
United States annually. It should be emphasized that certain provisions
of the EPA rule published on March 5, 1998 were intended to prohibit
the use of the less efficient, non-closed halon recovery and recycling
methods responsible for these small releases of halons to the
atmosphere.

C. Existing Certification Programs

The chief objective of an equipment certification program would be
to verify that all recycling or recovery equipment sold was capable of
minimizing emissions; a statement of this objective can be found in the
discussion of a similar refrigerant recovery and recycling equipment
certification program established under section 608(a) (58 FR 28660,
28682).¹ The specific provisions of the refrigerant
recycling equipment certification program were developed based chiefly
on (1) consideration of operating specifications of equipment extant at
the time (e.g., in establishing performance standards for vapor
recovery efficiencies); (2) considerations of economics and the
relative public benefits and private costs at stake (e.g., in
considering the appropriateness of establishing equipment recovery rate
standards); and (3) consideration of existing equipment capabilities,
and capabilities likely to be achievable with technological advances
(e.g., in considering allowable purge losses).
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\1\ Significant contrasts between the commercial and
technological contexts surrounding the refrigerants and the halons,
however, lead to divergent conclusions regarding the necessity and
appropriateness of recovery and recycling equipment certification
programs for these broad groups of ozone-depleting substances
(ODSs). For example, because the refrigerant recycling rule was
issued in 1993, prior to the phaseout of refrigerant production
(1996), economic incentives to develop high-efficiency refrigerant
recovery practices and equipment were limited. In contrast,
production of halons was phased out in 1994, strongly contributing
to an increase in the economic value of halons, and incentives for
the development of today's generally efficient recovery practices.
As a result, while it was necessary for refrigerant recovery and
recycling regulations to include a greater level of prescriptive
detail regarding methods of recovery and recycling, much less need
currently exists to prescribe efficient transfer, recovery, and
recycling practices with respect to halons, as such practices have
developed in the years since the phaseout of halon production.
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A program to certify halon recovery and recycling equipment would
likely require initial certification of equipment makes and models (and
additional certification provisions for makes and/or models no longer
in production) to be performed by laboratories or organizations to be
approved by EPA and subsequent periodic certification of such equipment
by conducting periodic inspections of equipment at manufacturing
facilities to ensure that models have not undergone design changes that
may affect their performance. Test performance criteria would have to
be established, likely based to some extent on existing industry
standards for the halon recovery and recycling units, where appropriate
standards existed. Performance parameters of interest might include
halon agent recovery efficiency. Different standards might have to be
developed based on the type of halon system that the recycling/recovery
equipment is designed for. It would further be necessary to establish
criteria and an administrative program for EPA approval of equipment
testing organizations. For enforcement purposes, it would be necessary
to require manufacturers and importers to place a label on each piece
of certified equipment indicating that it is certified and showing
which organization tested and certified it. Finally, in order to ensure
that only the equipment deemed and certified capable of minimizing
releases of halons to the atmosphere is actually utilized during halon
recovery and recycling activities, it would be necessary to establish
and enforce the explicit requirement that only certified recovery and
recycling equipment may be used during halon recovery and recycling
activities.

[[Page 42733]]

D. Prior Halon Regulation

As noted earlier, EPA has already issued a rule under Section 608
of the CAA to reduce the use and emissions of halons and to maximize
their recapture and recycling. The March 5 rule (63 FR 11084)
established certain practices and requirements relative to halons
including training requirements for technicians who handle halon-
containing equipment, and prohibitions on releases of halons during the
testing, maintenance, repair, servicing, and disposal of halons and
halon-containing equipment and during technician training. The March 5
rule also provided that halons and halon-containing equipment may be
disposed of only by sending such halon or equipment for recycling or
recovery, respectively, by a facility operating in accordance with the
voluntary NFPA 10 and 12A standards, or by sending halon for
destruction by an EPA-approved method.
The intent of the disposal provisions (sections 82.270(d) and (e))
of the March 5 rule was twofold. First, in specifying disposal
practices for halons and halon-containing equipment, it was established
that recovery and recycling (as well as halon destruction by approved
methods) are the only permissible disposal options for halons; i.e.,
release of halons to the atmosphere, or other means of disposing of
halons, are no longer permissible. This provision has the effect of
shifting maximum quantities of halons intended for disposal into
recovered and recycled pools. Second, it was intended to establish that
recovery and recycling must be performed only through the use of the
most efficient recovery and recycling practices and equipment available
today by requiring that facilities to whom halon or halon-containing
equipment had been sent for recovery or recycling operate in accordance
with the NFPA 10 standard for portable fire extinguishers (NFPA, 1998)
and the NFPA 12A standard for Halon 1301 systems (NFPA,
1997).² By specifying that the only permissible disposal
options for halons are recovery, recycling, or destruction; and by
requiring in effect that halon recovery and recycling occur only
through the use of equipment achieving maximum recovery efficiencies
currently available, the March 5 rule was intended to reduce emissions
of halons to the lowest achievable level during recovery and recycling,
and to maximize halon recapture and recycling. Thus, enforcement of
this rule should lead to a great reduction, if not virtual elimination,
of halon emissions attributable to the above-described transfer losses
from non-closed halon recovery systems. As noted earlier, all halon
recovery and recycling equipment currently on the market achieves
efficiencies of 98 percent or greater. Therefore, the remaining
environmental benefits achievable by further regulation of halon
recovery and recycling practices are extremely small.
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\2\ The NFPA 10 and NFPA 12A standards were cited because they
prescribe the use of closed halon systems for halon transfers.
Specifically, NFPA 10, the voluntary industry standard for portable
fire extinguishers, including halon-containing portable fire
extinguishers, states that the ``removal of Halon 1211 from fire
extinguishers shall be done only using a listed halon closed
recovery system. The removal of agent from other halogenated agent
fire extinguishers shall be done only using a closed recovery
system...'', where a closed recovery system for halons and
halogenated agents is defined as a ``system that provides for the
transfer of halogenated agents between fire extinguishers, supply
containers, and recharge and recovery containers so that none of the
halogenated agent escapes to the atmosphere'' (NFPA, 1998). NFPA 12A
states that the ``charging or recharging of cylinders or the removal
or transfer of agent should be done using a closed loop system. A
closed loop system permits transfer of halon between supply
cylinders, system cylinders, and recovery cylinders, with only minor
loss of halon to the atmosphere'' (NFPA, 1997).
It has been brought to EPA's attention that the language in the
NFPA 10 and NFPA 12A standards is not fully consistent with the
intent of the provisions in 40 CFR 82.270(d) and (e). EPA will
propose an amendment to the March 5 rule to clarify that in all
cases, only a halon closed recovery system may be used in the
transfer of halons during halon recovery and recycling operations,
and that the requirement to use only a halon closed recovery system
during halon recovery and recycling operations applies for all
halons listed as group II, Class I ozone-depleting substances, and
all their isomers.
---------------------------------------------------------------------------

E. Discussion and Conclusion

Section 608 of the CAA provides the statutory basis under which
today's action has been contemplated. That section directs EPA to issue
regulations which ``reduce the use and emission of [ozone depleting]
substances to the lowest achievable level'' and ``maximize the
recapture and recycling of such substances.'' In applying these
standards concerning use, emissions and recycling, EPA considers both
technological and economic factors. The phrases ``lowest achievable
level'' and ``maximize * * * recapture and recycling'' are not defined
in the Act. EPA does not believe that these standards are solely
technological in nature, but rather, include a role for economic
factors in determining the lowest achievable levels and maximum amount
of recapture and recycling. EPA therefore considers in an appropriate
manner the technology available and potential benefits, among other
factors, in establishing its regulatory programs under section 608. EPA
believes that the language of the CAA and the legislative history of
section 608 both support its approach. For a further discussion of this
approach, see 58 FR 28667.
Up to 1% of halon emissions in North America, prior to the March 5
rule, was attributable to halon transfers that were performed using
non-closed halon recovery systems (EPA, 1998)--that is, the inefficient
halon transfer methods or systems whose use it would be the objective
of an equipment certification program to eliminate. This suggests that
the maximum environmental gain achievable by the elimination of the use
of non-closed halon recovery systems and methods is up to 1% of annual
domestic halon emissions. However, the March 5 rule established
requirements that reduce the use and emission of halons, and maximize
their recapture and recycling. Included in the requirements of the
March 5 rule were provisions (40 CFR 82.270 (d) and (e)) regarding
halon disposal with a twofold intent relevant to halon recovery and
recycling. First, in specifying disposal practices for halons and
halon-containing equipment, the Agency established that recovery and
recycling (as well as halon destruction by approved methods) are the
only permissible disposal options for halons. Second, the Agency
intended to establish that recovery and recycling must be performed
only through the use of closed halon recovery systems. Research has
indicated that the majority of halon closed recovery systems in use
today, as well as all units currently sold in this sector, meet or
exceed industry standards that require minimum recovery efficiencies of
98% (EPA, 1998). Therefore, by specifying that the only permissible
disposal options for halons are recovery, recycling, or destruction;
and by requiring in effect that halon recovery and recycling occur only
through the use of equipment achieving maximum recovery efficiencies
currently available, EPA believes that the March 5 rule effectively
reduces emissions of halons to the lowest achievable level during
recovery and recycling, and maximizes their recapture and recycling.
As the objective of a halon recovery and recycling equipment
certification program is to verify that all such equipment is capable
of minimizing emissions, EPA finds that this objective will be met
through the regulatory mechanism of the March 5 rule. Furthermore, as
the objective of a requirement to use only certified equipment is to
eliminate the use of equipment that does not meet current standards,
EPA finds that this objective will also be met through the regulatory

[[Page 42734]]

mechanism of the March 5 rule. Therefore, EPA determines that it is
neither necessary nor appropriate under section 608(a)(2) of the Act to
issue a proposed rule requiring the certification of recycling and
recovery equipment for halons; and further, that it is neither
necessary nor appropriate under that section to require that halons be
removed only through the use of certified equipment at this time.
Further information and discussion relevant to EPA's decision may be
found in the halon recovery/recycling equipment study mentioned above
(EPA, 1998), as well as in associated materials, all placed in the
docket for this determination. Nothing in this determination should
affect any existing legal requirements regarding halons, and this
determination does not preclude future regulatory action regarding
equipment certification, or other aspects of halon use, should
information pointing to significant environmental benefit be produced.

F. References

National Fire Protection Association (NFPA), 1998. NFPA 10 Standard for
Portable Fire Extinguishers. 1988 Edition. National Fire Protection
Association, Quincy, MA. 56 pp.
NFPA, 1997. NFPA 12A Standard on Halon 1301 Fire Extinguishing Systems.
1997 Edition. National Fire Protection Association, Quincy, MA. 57 pp.
EPA, 1998. Assessment of the Need for a Halon Recovery/Recycling
Equipment Certification Program. Draft report prepared for the
Stratospheric Protection Division, U.S. Environmental Protection
Agency, Washington, D.C. 17 pp.
United Nations Environment Program (UNEP), 1994. Montreal Protocol on
Substances that Deplete the Ozone Layer--Report of the Halon Fire
Extinguishing Agents Technical Options Committee, December, 1994. UNEP
Ozone Secretariat, Nairobi, Kenya. 174 pp.
UNEP, 1998. Montreal Protocol on Substances that Deplete the Ozone
Layer--Technology and Economic Assessment Panel, April 1998 Report.
UNEP Ozone Secretariat, Nairobi, Kenya.

III. Administrative Requirements

A. Executive Order 12866

Executive Order 12866 (58 FR 51735, October 4, 1993) provides for
interagency review of ``significant regulatory actions.'' It has been
determined by the Office of Management and Budget (OMB) and EPA that
this action--which is a determination that requiring the certification
of equipment used in halon recovery and recycling, and requiring that
halons be removed from halon-containing equipment only through use of
certified recovery and recycling equipment, is not necessary or
appropriate--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, when developing regulations, consider the potential
impact of those regulations on small entities. Because this action is a
determination that requiring the certification of equipment used in
halon recovery and recycling, and requiring that halons be removed from
halon-containing equipment only through use of certified recovery and
recycling equipment, is not necessary or appropriate, the Regulatory
Flexibility Act does not apply. By its nature, this action will not
have an adverse effect on the regulated community, including small
entities.

C. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, does not
apply because this action is not a rule, for purposes of 5 U.S.C.
804(3).

D. Paperwork Reduction Act

This action does not add any new requirements or increase burdens
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq.

E. Unfunded Mandates Reform Act

It has been determined that this action does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local and tribal governments, in the aggregate, or the private
sector, in any one year.

F. Executive Order 13045--Children's Health

Executive Order 13045: ``Protection of Children from Environmental
Health Risk and Safety Risk'' (62 FR 19885, April 23, 1997) applies to
any rule that (1) is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This action is not subject to E.O. 13045 because it is not a rule
and is not likely to result in a rule.

IV. Judicial Review

Because this direct final determination is of nationwide scope and
effect, under section 307(b)(1) of the Act, 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.

List of Subjects in 40 CFR Part 82

Environmental protection, Administrative practice and procedure,
Air pollution control, Chemicals, Reporting and recordkeeping
requirements, Stratospheric ozone layer.

Dated: July 31, 1998.
Carol M. Browner,
Administrator.
[FR Doc. 98-21525 Filed 8-10-98; 8:45 am]
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