Protection of Stratospheric Ozone: Supplemental Rule to Amend
Leak Repair Provisions Under Section 608 of the Clean Air Act
[Federal Register: August 8, 1995 (Volume 60, Number 152)]
[Rules and Regulations]
[Page 40419-40444]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
Environmental Protection Agency
40 CFR Part 82
Protection of Stratospheric Ozone: Supplemental Rule to Amend
Leak Repair Provisions Under Section 608 of the Clean Air Act
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
SUMMARY: Through this action EPA is amending the Refrigerant Recycling
Regulations promulgated under section 608 of the Clean Air Act
Amendments of 1990. This action is being undertaken to address specific
concerns regarding the leak repair requirements for industrial process
refrigeration systems, pursuant to a settlement agreement with the
Chemical Manufacturers Association (CMA). This action will affect the
owners and operators of industrial process refrigeration with regard to
leak repair provisions. Certain aspects of this action will also affect
federal owners and operators of commercial and comfort-cooling
refrigeration with charges of 50 pounds of refrigerant or greater. This
action provides greater flexibility to owners and operators of
industrial process sources and to some federally-owned commercial and
comfort-cooling refrigerant sources with regard to leak repair
provisions. EPA is providing this flexibility without compromising the
goals of protecting public health and the environment.
EFFECTIVE DATE: September 7, 1995.
ADDRESSES: Comments on this action are contained in the Air Docket
Office, Public Docket No. A-92-01 VIIID, Waterside Mall (Ground Floor)
Environmental Protection Agency, 401 M Street, SW., Washington, DC
20460 in room M-1500. Additional comments and materials supporting this
rulemaking are contained in Public Docket No. A-92-01. 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: Cindy Newberg, Regulatory Development
Section, 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. Refrigerant Recycling Regulations
II. This Rule
III. Notice of Proposed Rulemaking
IV. Summary of Major Comments Received
V. Response to Comments
A. Legal Authority
B. Contracted Employees
C. Nuclear Power
D. Definition of Industrial Process Refrigeration Equipment and
the Need for Separate Leak Repair Requirements
E. Repairing Appliances
Repair Attempts
Timeframes for Repairing Leaks
Determining the Full Charge of Refrigerant
Best Efforts
Static and Dynamic Tests
Fixing Other Leaks
F. Industrial Process Shutdown
G. Retrofitting or Replacing Equipment
H. Recordkeeping and Reporting Requirements
I. Purged Refrigerants
J. Federally-Owned Chillers
K. Mothballing
L. Grandfathering
M. Terminology
N. Regulatory Impact Analysis
O. Allowing Appliances To Be Pressurized To Slightly Above O
PSIG
VI. Judicial Review
VII. Administrative Requirements
A. Executive Order 12866
B. Unfunded Mandates Act
C. Paperwork Reduction Act
D. Regulatory Flexibility Act
I. Refrigerant Recycling Regulations
Final regulations promulgated by the U.S. Environmental Protection
Agency (EPA) under section 608 of the Clean Air Act Amendments of 1990
(the Act), 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 maintenance,
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 are intended to substantially reduce
the emissions of ozone-depleting refrigerants. These regulations were
subsequently revised in the final regulations published August 19, 1994
(59 FR 42950), November 9, 1994 (59 FR 55912), and March 17, 1995 (60
FR 14607).
The current regulations require that persons servicing airconditioning
and refrigeration equipment observe certain service
practices to reduce emissions, establish equipment and reclamation
certification requirements, and comply with a technician certification
requirement. The regulations also require that ozone-depleting
compounds contained in appliances be removed prior to disposal of the
appliances, and that all air-conditioning and refrigeration equipment,
except for small appliances, be provided with a servicing aperture that
will facilitate recovery of refrigerant.
The May 14, 1993 regulations establish leak repair requirements to
further minimize emissions of class I and class II substances. The rule
states that appliances that normally hold a refrigerant charge of fifty
pounds or more are subject to the leak repair requirements. An annual
leak rate of 35 percent was established for industrial process sources
and commercial chillers, while an annual leak rate of 15 percent was
established for comfort-cooling. Where the leak rate is exceeded, the
appliance must be repaired within 30 days. An alternative is to develop
a retrofit or replacement plan within 30 days, outlining action to
retrofit or replace the appliance within one year from the exceedance.
The NPRM proposed revisions to the leak repair provisions in
response to a settlement agreement reached by the Agency and the
Chemical Manufacturers Association (CMA) specifically for industrial
process refrigerant equipment. In that settlement, EPA agreed to
propose changes to the leak repair requirements that would provide
additional time to repair and/or retrofit industrial process
refrigeration equipment based on the uniqueness of the industrial
process sector and on new information provided by CMA. EPA also agreed
to propose revising the evacuation requirements for oil changes to
permit for slight positive pressure, not to exceed 5 PSIG. Finally, EPA
agreed to clarify that purged emissions that have been captured and
destroyed should be excluded from the leak rate calculations.
The information received from CMA after the completion of the
initial rulemaking indicated that under certain circumstances the
timelines for repairing leaky industrial process refrigeration
equipment or to retrofit such equipment are not achievable. The
proposed rulemaking was developed to respond to those circumstances by
proposing the shortest timeframes achievable for this sector and to
relax the requirements for oil changes as well as to permit for the
exclusion of destroyed purged refrigerants.
[[Page 40421]]
The NPRM also proposed several other changes to the regulations,
including an exemption for federally-owned chillers under certain
circumstances. The NPRM is discussed in further detail in the following
section.
The recycling rule, 40 CFR, part 82, subpart F, was only re-opened
for purposes of reconsidering the specific provisions outlined in the
NPRM and discussed in this final action. EPA did not invite comments on
any other provisions of the recycling rule. However, in separate
actions EPA has recently addressed a stay on the sales restriction for
split systems (60 FR 24676), and an extension of the reclamation
requirements (60 FR 14607). In addition, EPA plans in the future to
consider additional changes to the requirements under 40 CFR, part 82,
subpart F, including:
<bullet> Reconsideration of the sales restriction for split systems
and pre-charged parts;
<bullet> The adoption of an industry off-site recycling standard;
and
<bullet> Requirements for recovering alternative substances to
class I and class II refrigerants unless the Administrator determines
that venting, releasing or disposing of the substitute refrigerants do
not pose a threat to the environment.
These issues will be addressed in separate rulemakings that will
follow appropriate notice and comment procedures.
II. This Rule
This final rule affects the owners and operators of industrial
process refrigeration equipment that normally contain a charge of 50
pounds or more of a class I or class II refrigerant. Today's action
will provide the owners and operators with greater flexibility in
repairing leaks and retrofitting leaky appliances. EPA will permit the
owner or operator to have more than 30 days to complete repairs and
more than one year to retrofit appliances where the conditions
described in this final rule apply.
Through this final action EPA is also clarifying that the owners
and operators of all appliances subject to the leak repair provisions
must only reduce leak rates to below the allowable leaks.
In addition, this action will permit additional time beyond the 30-
day leak repair period for federally-owned chillers where the chillers
are located in areas subject to radiological contamination. EPA will
also permit additional time beyond the one-year retrofit period if
appropriations and procurement requirements limit the feasibility of
completing the retrofit activities within one year.
Finally, this rule will permit the owners or operators to evacuate
appliances to slightly above atmospheric pressure, specifically to a
pressure not exceeding 5 psig, to perform oil changes. Alternatively,
EPA will permit the owner or operator to recover the oil to a system
receiver where the receiver will be evacuated to atmospheric pressure.
This statement in conjunction with the NPRM, serves as the
statement of basis and purpose under Sec. 307 of the Act.
III. Notice of Proposed Rulemaking
On January 19, 1995, EPA published a notice of proposed rulemaking
(NPRM) (60 FR 3992) concerning proposed revisions to the leak repair
requirements promulgated under section 608. Below is a summary of the
NPRM.
EPA proposed to permit the owners and operators of industrial
process refrigeration equipment more than 30 days to repair leaks when
the necessary parts are unavailable, or if requirements of other
federal, state or local regulations make a repair within 30 days
impossible. Only the time necessary to receive delivery of any
necessary parts or comply with any applicable regulations would be
permitted. The NPRM specified that the owner or operator of the
industrial process refrigeration equipment would have to exert best
efforts to repair leaks within the 30-day time period. If the equipment
could not be repaired within the 30-day requirement, the owner or
operator would have to document repair efforts, notify EPA of the
inability to comply, provide appropriate information concerning the
reason for the inability to complete the repairs and develop to EPA a
one-year retrofit, replacement, or retirement plan for the leaky
appliance. The NPRM stated that the owners or operators of the
industrial process refrigeration equipment would be required to
maintain records concerning their actions and submit specific
information to EPA that details the need for additional time to
complete the repair work. These records are discussed in further detail
in the NPRM (60 FR 3994).
In order to complete many types of repairs, industrial process
refrigeration equipment may need to be shut down. EPA proposed a 120-
day repair period, rather than a 30-day repair period, where an
industrial process shutdown is necessary to repair a leak or leaks from
industrial process refrigeration equipment.
EPA proposed three methods for owners and operators of industrial
process refrigeration equipment to determine the full charge of
refrigerant in the appliance and therefore, be able to calculate the
leak rate. Two additional methods for these calculations were also
discussed but were not proposed. The methods EPA proposed were: (1) To
rely on the manufacturers' determinations, (2) to require the owner or
operator to do calculations based on component sizes, flow rates,
pressures, and other considerations, and/or (3) to rely on actual
measurements of the amount of refrigerant added or evacuated from
industrial process refrigeration equipment. These and other methods are
discussed in greater detail in the NPRM (60 FR 3995).
EPA proposed that the repair efforts required for industrial
process refrigeration equipment be those that sound engineering
judgment indicates will be sufficient to bring the leak rate below a 35
percent annual rate, that a static test be conducted at the conclusion
of the repairs to determine whether the repairs undertaken were
successfully completed, and that a dynamic test be conducted within 30
days of bringing the system back on-line (if taken off-line) or within
30 days of completing the actual repairs, but no sooner than when the
system has achieved steady-state operating characteristics. If the
dynamic test indicates that the repairs have not been successfully
completed, EPA proposed that the owner would be subject to a
requirement to retrofit or replace the appliance within one year of the
failure to verify that the repairs had been successfully completed or
such longer time period as may be granted. Furthermore, EPA proposed
that the owner or operator notify EPA of the failure within 30 days of
the failed dynamic verification test. Proposed definitions of static
and dynamic tests and examples of these tests are discussed in the NPRM
(60 FR 3996).
Industrial process refrigeration systems have many potential
sources of leaks. The NPRM stated that if a sufficient number of other
leaks can be repaired creating a situation where the originally
identified leak or leaks remain, but the overall leak rate has been
successfully reduced to below 35 percent per year, the owner or
operator has still in effect met its obligation under the rule.
Therefore, EPA proposed that the owner or operator of an industrial
process refrigeration unit be relieved of the obligation to retrofit or
replace the appliance if, within 180 days of the failed dynamic
verification
[[Page 40422]]
test, the owner or operator establishes that the appliance's annual
leak rate does not exceed 35 percent. If the equipment owner or
operator establishes that the appliance's annual leak rate does not
exceed 35 percent, the owner or operator would be required to notify
EPA within 30 days of that determination and the owner or operator
would no longer be subject to the obligation to retrofit or replace the
appliance that arose as a consequence of the initial failure to repair
the leak or leaks successfully. The determination of whether the
appliance's annual leak rate exceeds 35 percent would be determined in
accordance with parameters identified by the owner or operator in its
notice to EPA regarding the failure of the initial dynamic verification
test.
EPA proposed to clarify that for industrial process and commercial
sources, leaks need to be repaired such that the leak rate is brought
back to a level below the 35 percent annual rate. A parallel
clarification for comfort-cooling and commercial sources also was
proposed. Therefore, rather than requiring that ``all'' leaks be
repaired, EPA proposed revising the requirements to reduce leaks to a
rate below the acceptable thresholds. EPA would permit leaky appliances
to operate as long as the leak rate does not exceed that amount.
In the NPRM, EPA stated that it may be reasonable to permit
additional time beyond the one-year established by the current
regulations for the retrofitting of certain industrial process
refrigeration equipment. EPA believes there are specific concerns
relating to the need for special design, engineering, ordering and
installation difficulties for some industrial process refrigeration
equipment. EPA proposed to allow more than one year to complete the
retrofit of industrial process refrigeration equipment in certain
circumstances. The NPRM describes scenarios that may justify more than
one year to retrofit an appliance; however, EPA does not believe
additional time is always necessary. Therefore, EPA intended to permit
additional time only when the owners or operators of the industrial
process refrigeration equipment can provide information detailing the
need for additional time in accordance with the proposed requirements
described below.
EPA proposed that additional time, to the extent reasonably
necessary, would be allowed due to delays occasioned by the
requirements of other applicable federal, state, or local regulations,
or due to the unavailability of a suitable replacement refrigerant with
a lower ozone depletion potential. The suitability of a replacement
refrigerant is discussed in the NPRM (60 FR 4000). The owner or
operator of the facility would have to notify EPA within six months
after the 30-day period following the discovery of an exceedance of the
35 percent leak rate. Records that would provide evidence that other
regulations or the unavailability of a suitable alternative refrigerant
prevent retrofit or replacement within one year must be submitted to
EPA to allow EPA to determine that these provisions apply and assess
the length of time necessary to complete the work. EPA proposed that it
notify the owner or operator of its determination within 60 days of
submittal. The limited recordkeeping requirements are discussed in the
NPRM (60 FR 4000). EPA proposed that such records be maintained by the
owner or operator and kept on-site.
EPA proposed that an additional one-year period beyond the initial
one-year retrofit period be allowed for industrial process
refrigeration equipment if four criteria are met: (1) The new or
retrofitted refrigeration system is custom-built (meaning if it or any
of its critical components cannot be purchased and/or installed without
being specifically designed), fabricated and/or assembled to satisfy a
specific set of industrial process conditions; (2) the supplier of the
system of one or more of its critical components has quoted a delivery
time of more than 30 weeks from when the order is placed; (3) the owner
or operator notifies EPA within six months of the expiration of the 30-
day period following the discovery of an exceedance of the 35 percent
leak rate to identify the owner or operator, describe the appliance
involved, explain why more than one year is needed, and demonstrate
that the first two criteria are met; and (4) the owner or operator
maintains records adequate to allow a determination that the criteria
are met. The criteria are further discussed in the NPRM (60 FR 4000).
EPA proposed that if more than one additional year is needed, the
owner may request to extend the deadline for completing all retrofit or
replacement action. EPA proposed that such a request be submitted to
EPA before the end of the ninth month of the additional year that was
granted to retrofit, replace, or retire the appliance. The request
would be required to include revisions to that information submitted
for the first additional year as proposed under Sec. 82.166(o). Unless
EPA objects to the request within 30 days of receipt, it would be
deemed approved. EPA stated that this extension would be granted only
in cases where the actual nature of the retrofit or replacement
activities is such that the additional time beyond the one year is
crucial. The submittal of revised information is discussed in the NPRM
(60 FR 4002).
EPA proposed to allow owners or operators to evacuate the appliance
to slightly above atmospheric pressure, specifically to a pressure not
exceeding 5 psig, to perform oil changes. Reasons for this approach are
described in the NPRM (60 FR 4002).
The NPRM stated that EPA would like to clarify that the Agency
interprets the 35 percent leak rate in the regulations as not including
emissions of purged refrigerant that are destroyed, if their
destruction is accounted for and can be verified by records maintained
by the owners or operators of the industrial process refrigeration
equipment. If purged refrigerant is destroyed using one of the five
destruction technologies approved by the Parties to the Montreal
Protocol, EPA can consider that refrigerant to have been destroyed and
therefore, not part of the leak rate for the system. A description of
the methods for destroying refrigerant and the how industrial process
refrigeration systems could measure purged refrigerants is contained in
the NPRM (60 FR 4003).
In the NPRM (60 FR 4003), EPA described temporarily mothballing
equipment. If a facility is temporarily mothballed, EPA believes it is
appropriate to suspend the time-relevant repair and/or retrofit
requirements while the facility is effectively inoperative. In the same
subsection, EPA described how temporarily mothballing is not equivalent
to having an appliance taken off-line or to an industrial process
shutdown. EPA proposed that while temporarily mothballed, the timerelevant
repair and/or retrofit requirements would be suspended.
EPA proposed that owners or operators of a federally-owned
refrigerant appliance be able to submit a request for extensions
parallel to those outlined for industrial process refrigeration
equipment, based on the hindrance of federal procurement requirements.
If additional time is granted, EPA proposed that testing and
documentation should occur, parallel to those for industrial process
refrigeration equipment. The reasons for this proposed extension are
discussed in detail in the NPRM (60 FR 4004).
IV. Summary of Major Comments Received
During the public comment period EPA received fourteen sets of
comments that are addressed in this action. In
[[Page 40423]]
addition, EPA received and considered additional comments submitted to
the Agency after the 30-day public comment period ended. All comments
considered in this final action are contained in Air Docket A-92-01
VIIID.
All the commenters agreed that EPA should revise the leak repair
requirements. Most of the commenters agreed with the general paradigm
EPA proposed for repairing leaks in industrial process refrigeration
equipment. Commenters raised specific concerns regarding various
aspects of the proposed rule.
EPA received comments concerning the inclusion of specific types of
appliances in the definition of industrial process refrigeration
equipment. One commenter was concerned with whether the economic impact
of an industrial process shutdown of a nuclear power reactor used in
the generation of electricity was considered by the Agency.
Many commenters were concerned with the use and definitions of
static and dynamic tests. In particular, several commenters suggested
that the tests should be described as ``first verification test'' and
``follow-up verification test,'' thus avoiding any confusion stemming
from the common associations of static and dynamic with a state of
motion. Some commenters stated that dynamic tests in certain
circumstances should be performed before the affected appliance is
operating at steady-state.
A few commenters were concerned with the methods EPA proposed to
determine the full charge of an appliance. These commenters believe
that the fourth option described in the NPRM (60 FR 3996) should be
considered an acceptable methodology.
Several commenters believe that EPA should broaden the proposed
conditions under which mothballing an appliance would suspend the timerelevant
leak repair requirements.
A few commenters suggested changes to the recordkeeping and
reporting requirements.
EPA received several comments regarding the proposed requirements
for federally-owned chillers. Some commenters supported EPA's proposal,
some opposed it, and one commenter suggested that EPA re-propose the
changes under a separate rulemaking.
EPA received comments on the requirement to exert best efforts to
repair leaks. Commenters were concerned that since the settlement
agreement between EPA and CMA was reached, the interpretation of best
efforts and sound engineering judgment has changed.
All the comments received by EPA are discussed in greater detail
below.
V. Response to Comments
EPA received fourteen sets of comments during the comment period on
the proposed changes to the leak repair requirements published January
19, 1995 (60 FR 3992). Individual comments are specifically addressed
in this section.
A. Legal Authority
EPA requested comment on the legal authority under which EPA was
proposing and today is promulgating revisions to the leak repair
requirements. A few commenters addressed this issue and agreed with
EPA's legal basis for proposing these changes.
B. Contracted Employees
Two commenters requested that EPA clarify that actual work to be
performed on affected appliances may be provided by contracted
personnel. One commenter stated that although the owner or operator
remains responsible for compliance, the work need not be performed by
the owner or operator. EPA agrees with these commenters. The Agency
recognizes that often repair and maintenance services are performed
under contractual arrangements. Moreover, contracted personnel will be
acting as agents of the owner or operator with respect to performance
of service and maintenance of the appliances. Therefore, the owner or
operator remains responsible to ensure that compliance with the
requirements promulgated under section 608 occurs.
C. Nuclear Power
One comment received by EPA discusses the consideration of the leak
repair requirements specifically for generation of electricity by a
nuclear power reactor. The commenter does not believe the NPRM takes
into account the technological and economic factors specific to the
operation of these facilities in the context of the statutory standard
in section 608(a)(3)(A) of the Act. For example, the commenter states
that the shutdown of a nuclear power reactor within 120 days of
discovering that the leak rate exceeds 35 percent is costly. The
commenter stated that planned outages are typically scheduled on an 18-
month cycle.
EPA understands under this rule, that an industrial process
shutdown will often occur without regard to the planned outages for
nuclear power stations, as well as for other industrial process
refrigeration equipment in order to repair leaks. During the settlement
agreement negotiations, discussions were held considering the
possibility of waiting for the next scheduled shutdown. However, since
these scheduled shutdowns often do not occur frequently, it was
determined that undertaking a separate industrial process shutdown
would be necessary to limit the emissions of refrigerant. EPA does not
believe that the owners or operators of nuclear power stations incur
costs that are dissimilar to those incurred by the chemical,
pharmaceutical, petrochemical, and manufacturing industries when an
industrial process shutdown occurs. Other commenters from these fields
expressed concerns about the costs associated with an industrial
process shutdown, but agreed with EPA that such an undertaking would be
necessary to limit releases of ozone-depleting substances.
Prior to this rulemaking it was unclear whether the use of chillers
in the generation of electricity actually met the definition of
industrial process refrigeration equipment. Therefore, it is true that
EPA did not base the NPRM on any specific consideration of the nuclear
power industry. However, EPA does not believe that the commenter has
demonstrated how the generation of electricity from a nuclear power
reactor would face technological or economic factors not experienced by
other owners or operators of industrial process refrigeration
equipment. Furthermore, today's action lessens the burden for all
industrial process refrigeration equipment, regardless of its use. If
significant distinctions exist between refrigeration appliances used in
the generation of electricity and other refrigeration appliances, EPA
may need to reconsider whether the use of appliances in the generation
of electricity is truly consistent with industrial process
refrigeration equipment. If not, these appliances would be subject to
the 15 percent leak rate and all associated requirements.
D. Definition of Industrial Process Refrigeration Equipment and the
Need for Separate Leak Repair Requirements
The NPRM stated that three main refrigeration sectors are affected
by the leak repair provisions promulgated under section 608 of the Act:
commercial refrigeration, comfort-cooling, and industrial process
refrigeration. While many different commercial refrigeration and
comfort-cooling appliances are similar in design and function, EPA
received information from CMA illustrating the uniqueness of industrial
process refrigeration equipment. Industrial process
[[Page 40424]]
refrigeration equipment is custom-designed and assembled in-place at a
process location. Thus, each of these industrial units has unique
operating characteristics. Industrial process refrigeration has been
defined in Sec. 82.152 as:
* * complex customized appliances used in the chemical,
pharmaceutical, petrochemical and manufacturing industries. This
sector also includes industrial ice machines and ice rinks.
EPA requested comment on the appropriateness of establishing
separate repair provisions for industrial process refrigeration. EPA
received several comments concerning the need for separate provisions.
These comments agreed with the NPRM. Specifically, commenters referred
to the uniqueness of industrial process refrigeration equipment used in
pharmaceutical, petrochemical, and manufacturing industries. Commenters
stated that there are several apparent differences between industrial
process refrigeration equipment and other types of equipment affected
by the leak repair provisions. Industrial process refrigeration
equipment is larger and more complex than hermetically-sealed consumer
units. Most comfort-cooling appliances have hermetically-sealed or
semi-hermetically-sealed refrigerant loops. Complexity of the
industrial process refrigeration equipment makes leak detection and
leak rate calculations more difficult than for other sectors affected
by the leak repair provisions. Commenters agreed with EPA's assessment
that the replacement parts for this sector often must be specifically
fabricated for the leaking equipment. Commenters believe that shutting
down industrial process refrigeration equipment often takes several
days and that the owners and operators of this equipment must avoid any
unwanted chemical reactions that could lead to fires, explosions, or
other immediate hazards. Based on the discussion in the NPRM and the
comments received, EPA is establishing separate leak repair
requirements for industrial process refrigeration equipment.
One commenter suggested EPA clarify the definition of industrial
process refrigeration equipment with respect to the appliance's
relationship to the manufacturing process. The commenter stated that
the terms: ``complex;'' ``used in the manufacturing industry;''
``custom designed;'' and ``assembled in place'' are subjective and
could be applied to many of the appliances used for cooling large
buildings or processes. Industrial process refrigeration equipment in
the manufacturing sector is used to cool processes directly related to
a broad range of manufacturing activities. The commenter suggests that
the differentiating factor between industrial process and commercial
refrigeration is that industrial process refrigeration equipment tends
to be directly linked to a manufacturing activity. EPA agrees with this
commenter's concerns. EPA distinguishes between commercial
refrigeration and industrial process refrigeration equipment for the
purposes of Sec. 608 in part by considering how the appliance is used.
EPA did not intend to include in the definition of industrial process
refrigeration equipment appliances not involved in the industrial
process. Therefore, through this action EPA will amend the definition
of industrial process refrigeration to clarify that use is a factor in
determining if an appliance is industrial process refrigeration
equipment.
EPA received comments concerning whether the generation of
electricity, particularly where a nuclear reactor is used, is included
in the definition of industrial process refrigeration equipment. One
commenter stated that EPA does not specifically identify electric
generating stations as industrial processes, as the rule does for the
chemical and pharmaceutical industries. The commenter states that
large, custom refrigeration appliances to cool the production process
are essential to the manufacturing of electricity and are prevalent at
nuclear generating stations.
Fundamental to the classification of these appliances is whether or
not the system is used directly in the production of electricity. The
commenter states that shutting down the refrigeration appliances could
result in the shutdown of the generating station, where the two are
integrally linked. Another commenter stated that chillers used in
safety-related equipment are critical to the safe shutdown of nuclear
power stations in the event of an accident. EPA believes that current
definition of industrial process refrigeration equipment needs to be
clarified to specifically state that the generation of electricity is
included. EPA believes that under the current definition it is not
apparent that the generation of electricity is considered
manufacturing. Therefore, through this action, EPA will add the
generation of electricity to the definition of industrial process
refrigeration. EPA would like to clarify that the definition will only
include appliances directly linked to the generation of electricity.
Appliances used to cool control rooms or offices are not considered
industrial process refrigeration equipment.
The amended definition will be:
* * complex customized appliances used in the chemical,
pharmaceutical, petrochemical and manufacturing industries. These
appliances are directly linked to the process. This sector also
includes industrial ice machines, appliances used directly in the
generation of electricity, and ice rinks * * *
EPA received one comment concerned with the potential for
ambiguities in the definition of industrial process refrigeration
equipment and commercial refrigeration. The commenter notes that by
default, all appliances with more than 50 pounds of refrigerant that do
not come under the definition of commercial or industrial process
refrigeration equipment must have leaks repaired when the leak rate
exceeds 15 percent leak rate. EPA agrees that all appliances with 50
pounds of refrigerant or more, that do not meet these definitions are
subject to the 15 percent leak rate.
Three comments asserted that other types of appliances should also
be included in the leak repair requirements for industrial process
refrigeration equipment. These commenters proposed expanding the
definition of industrial process refrigeration equipment to incorporate
specialized comfort cooling appliances and specialized commercial
refrigeration. One commenter stated that since industrial comfortcooling
equipment such as the air conditioners mounted on cranes in a
smelter are ``custom built,'' EPA should allow additional time for
repairs to be made. While EPA understands that these appliances are
customized to be located on cranes, often above molten metal, EPA does
not believe these appliances are consistent with either the original or
amended definition of industrial process refrigeration equipment. EPA
believes that the parts used in these types of comfort-cooling
appliances are not unique and are therefore relatively easy to replace.
Furthermore, the appliances do not function as part of the process.
Customizing the appliances in this scenario refers predominantly to
modifying the system to fit in its intended location. Therefore, EPA
does not consider industrial comfort-cooling appliances to be
industrial process refrigeration equipment.
Another commenter stated that the definition of industrial process
refrigeration should be expanded. The commenter uses specialized
refrigeration equipment in confined spaces and other industrial-setting
applications, refrigeration as cooling equipment in laboratories for
meeting
[[Page 40425]]
specific testing requirements, and cooling areas containing a bank of
computers to ensure a controlled environment. Another commenter stated
that the definition should specify that appliances used for regulating
temperatures in the control panel buildings should also be considered
industrial process. The commenter believes that this is an integral
part of the process and that since these appliances are vital to the
proper functioning of the instruments in the control panel they do not
constitute ``comfort-cooling.'' While EPA understands that these
cooling appliances are designed to meet specific cooling needs and fit
in specific settings, these appliances do not meet the definition of
industrial process refrigeration. EPA does not believe it is
appropriate to expand the definition of industrial process
refrigeration equipment to include specialized comfort-cooling
appliances. If appropriate in the future, EPA could consider creating a
separate category of specialized comfort-cooling appliances and/or
specialized commercial appliances and permitting additional time to
repair leaks. However, at this time EPA does not believe this is
necessary. If EPA receives compelling information, then EPA would
consider proceeding with appropriate notice and comment.
Amending the requirements to create new sub-sectors for appliances
not considered in the NPRM, particularly where such determinations
would likely have wide-ranging consequences where proper notice has not
been given, would be inappropriate as part of today's final action.
Therefore, EPA will not expand the definition of industrial process
refrigeration equipment to include specialized comfort-cooling or
specialized commercial appliances. EPA may reconsider this issue
through proper notice and comment procedures, at a later date.
EPA received several comments regarding the amount of refrigerant
contained in appliances subject to the leak repair requirements.
Commenters asked that EPA clarify that leak repair is required only for
appliances that normally contain more than 50 pounds of refrigerant. On
August 19, 1994 (59 FR 42953), EPA addressed this concern. The notice
states that ``although EPA did not explicitly restrict the scope of its
leak repair requirement for commercial and industrial process
refrigeration to equipment containing more than 50 pounds of
refrigerant, EPA intended this requirement (Sec. 82.156(i)) to cover
only equipment containing at least 50 pounds'' (59 FR 42953).
Accordingly, EPA amended Sec. 82.156(i) to specify the 50-pound cut-off
(59 FR 42957). Inadvertently, EPA neglected to carry over that amended
language in the January 19, 1995 NPRM. Therefore, through this action,
EPA will amend the proposed requirements of Sec. 82.156(i) to specify
the 50-pound cut-off.
One commenter requests that EPA clarify that 50 pounds refers to
the refrigerant in one refrigerant circuit. The commenter states that
where two separate, wholly independent refrigeration circuits that are
not interconnected, each having a normal refrigerant capacity of no
more than 50 pounds, the leak repair provisions should not apply. EPA
agrees with this commenter. Through this action, EPA would like to
clarify that if the refrigerant circuits do not interconnect, and if
each wholly independent circuit has a capacity of no more than 50
pounds of refrigerant, the leak repair provisions promulgated under
Sec. 82.156(i) do not apply. However, if the refrigerant circuits are
connected, and the combined circuits have a normal capacity of more
than 50 pounds of refrigerant, the leak repair provisions do apply.
EPA received several comments regarding appliances used as both
industrial process refrigeration equipment and comfort-cooling. The
commenters were concerned with whether they need to use the 15 percent
leak rate or the 35 percent leak rate under these circumstances. One
example would be a chiller used directly in the generation of
electricity and used to cool the control room. EPA believes that where
50 percent or more of an appliance's capacity is being used as
industrial process refrigeration equipment, that appliance should be
treated as industrial process refrigeration equipment and therefore
subject to the 35 leak rate. Where less than 50 percent of an
appliance's capacity is being used as industrial process refrigeration
equipment, then the appliance will not be considered industrial process
refrigeration equipment and will therefore be subject to the 15 percent
leak rate. EPA believes this demonstrates an equitable approach and is
consistent with determinations made by the Agency's Office of
Compliance.<SUP>1
\1\ Applicability Determination #51 made under the Sec. 608
rulemakings.
EPA received one comment regarding the definition of on-site. The
commenter believes EPA should specify that on-site means within a
contiguous geographic area, under common ownership or control, that
includes the location of the appliance. For the purposes of these
regulations, EPA agrees with this interpretation of the term on-site.
E. Repairing Appliances
Repair Attempts
EPA received several comments seeking clarification concerning how
EPA will interpret the first repair attempt. Commenters stated that EPA
should clarify that repairs can be iterative and therefore an owner or
operator should be allowed to make as many repair attempts within the
initial 30-day or 120-day timeframe as possible, as long as the results
of conducting the verification tests indicate that the repairs were
successful. One commenter explained that repairs may be checked several
times before being considered complete. The commenter feared that there
may be confusion that one unsuccessful attempt to tighten a bolt or
replace a gasket might trigger the requirements as when a dynamic test
fails.
EPA agrees with these concerns. EPA believes that during the
initial 30-day or 120-day repair time, all attempts should be made to
repair the leaks. Therefore, through this action EPA will replace the
proposed language ``first attempt'' with ``initial repair efforts,''
thus including all the efforts made during the initial 30 or 120 days.
EPA also received comments concerning the interpretation of
``second attempt'' to repair leaks. The commenters are concerned that
second attempt implies a singular event rather than a series of events
to repair a leak within a finite period of time. One commenter
suggested that ``efforts'' be used instead. The commenter believes a
limited timeframe instead of a limited event should be acceptable. EPA
received comments indicating that the Agency should modify the rule to
include a timeframe for completing the second attempt to repair leaks,
particularly since a timeframe was included in the settlement
agreement.
EPA agrees with the comments. A timeframe of 30 days (or 120 days
in the case of an industrial process shutdown) was specified in the
settlement agreement and inadvertently not included in the NPRM under
Sec. 82.156(i)(3)(iv). As discussed above in reference to a first
repair attempt, EPA understands that repairs may be iterative and that
a singular effort should not be described. Another comment suggested
EPA use the language, ``any subsequent repair attempt.'' EPA does not
believe that this language is appropriate because it is too open-ended
and could potentially cause
[[Page 40426]]
confusion. Therefore, through this action EPA will modify the proposed
Sec. 82.156(i)(3)(iv) to include a reference to 30 days and 120 days
for completing ``second repair efforts.''
2. Timeframes for Repairing Leaks
EPA received many comments supporting the proposed timeframes for
repairing leaks in industrial process equipment. These commenters
recognized that while many types of leaks can be repaired within 30
days, in particular circumstances, such as when an industrial process
shutdown is required, additional time is necessary. EPA received one
comment stating that in all cases 120 days should be provided to repair
all leaks. The commenter further stated that if the leaks could not be
repaired within 120 days, additional time should be provided if the
parts are unavailable, there are complications due to other
regulations, or the potential need for the system to be taken off line
to effect the repair exists. The commenter believes that this will
reduce the amount of delays experienced by waiting for approvals from
the Agency and it would decrease the burden placed upon the industry by
reducing the number of submittals. The commenter further believes that
by reducing wasted time spent in performing bureaucratic functions, and
waiting for approvals, the repairs may be more quickly and efficiently
made.
EPA does not believe it is necessary to always permit 120 days to
repair leaks. In negotiating the settlement agreement with CMA and in
subsequent discussions with industry representatives, numerous examples
of routine repairs that can easily be made within 30 days have been
identified. These types of repairs include leaks caused by a ruptured
tube and a leaking gasket between the flanges. These and other types of
repairs normally completed in less than 30 days are discussed in the
NPRM (60 FR 3994). Limiting repair times to the most reasonable amount
of time ensures that the repairs are completed responsibly and
consistent with the spirit and intent of section 608 and the initial
regulations promulgated in May 1993. EPA sees no reason to provide
additional time to repair leaks that many commenters agree can easily
be repaired within 30 days. Part of EPA's rationale for proposing
changes to the leak repair provisions is based on the need to provide
flexibility where the leaks are such that repairs cannot be made within
30 days. Allowing 120 days for repairs where an industrial process
shutdown is necessary recognizes the need to first complete the actual
shutdown before attempting to fix the leaks. Since under most
circumstances, owners or operators are expected to proceed with their
repair or retrofit operations without receipt of prior approval, EPA
does not believe waiting for approval constitutes a reason for the
owners or operators to delay action. Thus extending the leak repair
timeframe to 120 days to ensure adequate time to receive EPA approval
is not necessary. Therefore, EPA is requiring that where appropriate,
leaks are to be repaired within 30 days.
EPA received one comment regarding the course of action when the
30-day repair requirement cannot be met. The commenter notes that the
NPRM's preamble states that when the 30-day repair requirement cannot
be met, the owner or operator must notify EPA and include ``a one-year
retrofit, replacement or retirement plan for the leaky equipment'' (60
FR 3994). However, the regulatory language does not state that
requirement. Instead, the regulatory language states that the owners or
operators must provide the reason(s) why more than 30 days are needed
and an estimate of when the repair work will be completed. The
commenter believes the regulatory text is correct. EPA agrees that the
regulatory language properly reflects the notification requirement.
Provisions proposed under Sec. 82.156(i) allows for other alternatives
besides automatically retrofitting or replacing the equipment.
3. Determining the Full Charge of Refrigerant
EPA received several comments concerning establishment of the
amount of refrigerant contained in industrial process refrigeration
equipment and therefore determining the leak rate for the affected
appliance. One commenter suggested that EPA should specify a
methodology for determining the percentage of refrigerant lost during a
12-month period. Another commenter stated that large facilities that
have in-house staff for servicing refrigeration equipment may not have
had any regulatory requirement or internal justification for
maintaining records of refrigerant charges prior to June 14, 1993 (the
effective date of the initial regulations promulgated under section
608). The commenter requests that EPA clarify that leak rate
calculations are required to be performed by taking into consideration
the additions of refrigerant that occur after the original promulgation
of section 608. Furthermore, the commenter requests clarification about
prorating refrigerant added over more than a 12-month period. For
example, if 20 10s added every 24 months, does that constitute a 10
per year leak rate? The commenter believes that since there were no
regulatory requirements prior to May 1993, owners or operators should
not be subject to enforcement based on imprecise calculations.
Alternatively, the commenter believes that EPA should permit the first
recharge to occur without regard to the leak rate in order to establish
a full charge baseline.
EPA understands that prior to June 1993, records regarding the
addition of refrigerant may not have been maintained. However, at this
point such information should have been maintained for over two years.
Therefore, EPA believes it is reasonable to assume a baseline can be
established. EPA agrees that refrigerant recharges should be
appropriately prorated to establish a yearly leak rate; however, EPA
does not believe it is necessary or appropriate to permit the first
recharge to occur without making an effort to assess the leak rate.
Several commenters requested that EPA permit the use of the fourth
option discussed in the NPRM (60 FR 3996) for determining the full
charge of refrigerant. This method allows one to choose a number from
within an established range based on the best data currently available.
Once a number is selected, it would be considered the full charge;
however, over time the owner or operator of the appliance may adjust
the number based on new or revised information concerning the
performance of the system. EPA expressed concerns that there is no
clarity regarding circumstances under which a change in the number
could be justified. In the NPRM, EPA stated that an everchanging
estimate of the full charge defeats the purpose of creating a baseline.
Several commenters stated that EPA's concerns can be overcome. One
commenter stated that in its experience it is difficult to accurately
estimate the full charge of particular appliances. The commenter
believes that often only trial and error will derive an accurate
number. The commenter believes it is essential to allow an owner or
operator to be able to draw from experience and use a range in
estimating the full charge. The commenter believes that as long as the
method used is documented, an inspector can determine if the approach
was reasonable. Another commenter stated that EPA should not reject any
legitimate technique for calculating the full charge. Several
commenters stated that every method for determining the full charge has
its strengths and weaknesses. Moreover, expressed or not, all methods
will develop a range. The commenters believed that EPA's
[[Page 40427]]
concerns are that the owners or operators might frequently change the
determination of full charge and that EPA would lack the criteria to
evaluate whether the changes were justified. The commenters suggested a
way to address these concerns:
<bullet> Any downward revision of the full charge should be
acceptable without a need for EPA to challenge it;
<bullet> EPA could specify that the midpoint of the established
range constitutes the full charge for determining a leak rate;
<bullet> EPA could require the owners or operators to maintain
records of the basis for their original determinations of the full
charges and any data behind any changes to those determinations; and
<bullet> EPA could require the owners or operators to submit a
report to EPA when a number is revised after discovering refrigerant
losses, when a number is revised resulting in a leak rate below 35
percent, and when the owners or operators do not intend to fix the
leaks.
Another commenter stated that if EPA does not revise the proposed
regulations to permit this method for determining the full charge, the
Agency should provide at least six months for the owners or operators
to determine the full charge of affected appliances using acceptable
methods.
EPA has considered these comments very carefully. EPA's concerns
relate to the accuracy of the fourth method for determining the full
charge of a system and the potential to adjust the estimate to reduce
leak rates below the applicable thresholds. However, EPA believes that
the commenters have suggested ways to alleviate EPA's concerns. EPA
understands that while ranges may need to be adjusted several times for
a new appliance, over time the frequency of such adjustments would
likely decrease, unless substantial modifications were made to the
appliance. Moreover, in most cases, ranges would not need to be
adjusted more than once every few years after an appliance has been in
operation long enough for the owner or operator to become comfortable
with the range. Furthermore, EPA understands that a range may actually
represent seasonal variations.
EPA agrees with the commenters that any downward revision of the
full charge should be acceptable without any need for EPA to challenge
the revision. EPA further agrees that the midpoint of the established
range shall represent the full charge for determining a leak rate. This
mitigates the possibility of receiving any unfair advantage by
adjusting the range, since the midpoint would not vary as much.
EPA agrees with the comments that records should be maintained
concerning the determination of the range and any adjustments to it. If
the owners or operators of an appliance choose to establish a range, it
is critical to understand the methodology for the establishment of the
range and the methodology for any adjustments that would result in a
larger number for the midpoint. EPA believes that such records would be
beneficial in any compliance determinations. Moreover, EPA believes
that while ranges many need to be adjusted several times during the
first year, the ranges will soon become stabilized. It will not be
necessary to adjust the ranges unless a major change was made to the
industrial process refrigeration equipment. Therefore, the records
would not need to be modified often. Commenters suggested data elements
to be contained in the records, including the original full charge and
any revisions. EPA agrees with these commenters. Therefore, the records
required for using the fourth option will include: the identification
of the owner or operator of the appliance; the location of the
appliance; the original full charge of the appliance and how it was
determined; any revision of the full charge number and how it was
determined; and the date such revisions occurred. Since the owner or
operator need not use the fourth methodology, EPA does not believe this
recordkeeping provision constitutes an unreasonable burden for the
owners or operators.
While commenters suggested limited reporting requirements to
accompany this recordkeeping provision, EPA does not believe it is
necessary or appropriate to require reports to be submitted detailing
the methodology for establishing or changing the full charge
determination. EPA believes maintaining records is necessary for the
Agency to understand the methodologies used if an issue of compliance
arises. EPA also believes that in all likelihood, such records will
benefit the owner or operator of the appliance by providing a historic
record of how the current leak rate was developed. However, routinely
providing that information to EPA, particularly where no potential
violation is suspected, is not necessary or appropriate. Therefore, EPA
will require that records be maintained if the fourth method for
establishing the full charge is used; however, EPA will not require any
periodic reporting.
Commenters stated that if the Agency adopts any recordkeeping or
reporting options for the fourth methodology, such provisions should
not be extended for use with the other three methodologies. EPA agrees
with these commenters. EPA did not propose and today is not adopting
any recordkeeping options for these three methodologies.
Through this action EPA will allow any one of the three proposed
methods and the fourth method discussed in the NPRM, or a combination
of these methods to be used for determining the full charge of
appliances. If the fourth method is chosen or used in combination with
any of the other acceptable methods, the midpoint of the range will
constitute the full charge for purposes of determining the leak rate.
The owners and operators of the affected industrial process
refrigeration equipment must keep records in accordance with
Sec. 82.166(q), detailing the methodology used for determining and
adjusting the range.
Two commenters stated that the calculations required for
determining the normal charge of industrial process refrigeration
equipment should apply to the commercial and comfort-cooling sectors as
well. One commenter believes that these other appliances have fieldinstalled
interconnecting piping and there may not be any information
available from the manufacturer indicating the normal refrigerant
charge. Furthermore, the commenter requests that EPA publish guidance,
including formulas, tables and sample calculations with enough detail
that most owners affected by the leak repair provisions will be able to
perform the necessary calculations. EPA does not agree with this
commenter. In cases where a comfort-cooling or commercial refrigeration
appliance is ``customized,'' EPA believes it is still relatively easy
to derive the charge of the system. Field-installed piping can be
measured and the refrigerant charge can, therefore, be calculated.
Moreover, the owners or operators of such systems often hire
contractors to service and maintain their appliances. These contractors
should be able either to determine the full charge or to provide
guidance on establishing leak rates. EPA believes that in most
instances, these contractors will be better able to advise the owners
or operators. Therefore, EPA does not believe it is necessary to
specify how the full charge will be established for these sectors, nor
to publish specific guidance.
One commenter believes that EPA should exclude from any calculation
of refrigerant leak rates the loss of refrigerant through a one-time
accidental release, such as breaking pipes, a ruptured disc, or
operator error.
[[Page 40428]]
EPA disagrees with this commenter. While EPA understands that accidents
do occur, EPA believes that if the events are such that the leak rate
surpasses the 15 percent or 35 percent thresholds, the necessary
repairs should be made to ensure that the owners or operators of the
appliances are in compliance. Such repairs would include replacement of
the broken pipe or rupture disk that led to the accidental release.
Such repairs would also include correcting any condition that
repeatedly led to an accidental release (e.g. over pressurization).
Moreover, since many leaks occur because of one-time events, such as
ruptured pipe, it would be impossible to draw clear distinctions of
what would be included in leak repair calculations.
One commenter stated that EPA should clarify that the owners or
operators may hire contractors to determine the full charge. The
commenter further believes that throughout the rule EPA should
recognize the role of contractors who service refrigeration appliances.
As stated earlier in this preamble, EPA recognizes that the owners or
operators may have contractual arrangements with contractors or
technicians who actually perform maintenance and repair work on the
appliances subject to the leak repair provisions. While the work may be
performed under such arrangements, the personnel are in effect acting
as an agent of the owners or operators.
One commenter stated that EPA should clarify how to determine the
full charge for appliances with multiple independent compressors and
refrigerant loops. As EPA has stated elsewhere in this notice, the
charge of an appliance is based on the charge of an individual
refrigerant loop/circuit where that loop/circuit is not interconnected
and that contains a normal charge of 50 pounds of refrigerant or more.
EPA distinguishes between those that are independent and those that are
interconnected, perhaps employing multiple compressors (e.g. parallel
systems).
4. Best Efforts
EPA received several comments concerning the term ``best efforts,''
as used in Sec. 82.156(i)(2). Several commenters agreed with the
Agency's interpretations. These commenters stated that it was
appropriate to exclude formal protocols from the interpretation of best
efforts because of wide variations in the regulated community. One
commenter stated that each leak is unique and best efforts to repair a
small leak will differ from those taken to repair larger leaks. A
formal definition would either be too complex or ineffective at
capturing all the scenarios.
One commenter requested that EPA include a formal definition of
best efforts in the final rule. The commenter stated that the lack of a
formal definition could create uncertainty as to what the rule
requires. The commenter recognized that the description of best efforts
discussed in the NPRM originated with industry. The commenter provided
two possible ways to better characterize a best efforts approach. The
approach includes providing more description in Sec. 82.156(i)(2) and/
or creating a specific definition in Sec. 82.152. The commenter
suggested the following definitions:
best efforts means a repair method is used that is reasonably
expected to be effective on the particular type of leak, based on
past experience;
or
best efforts means that, during an extension of the 30-day
period for repairs, the owner or operator repairs significant leaks
to the extent practical during the 30 days, by using a repair method
that is reasonably expected to be effective based on past
experience, on those leaks that do not require an extension of time.
While EPA understands the benefits of having a formal definition
for any term used in regulations, EPA does not believe these
definitions solve the problem discussed in the NPRM. In the NPRM, EPA
states that its concerns are the lack of formal protocols in the best
efforts approach described by EPA. EPA characterizes a best efforts
approach in the NPRM as implying that a methodology for repair that is
reasonably expected to be effective based on past experience and
potentially may include consultation (60 FR 3994). EPA does not believe
the commenter's suggested language incorporates all of the concepts
described in the NPRM. Adopting an inadequate definition does not
benefit EPA or the regulated community. EPA requested comments on a
definition hoping that perhaps an industry standard could be cited.
Throughout the regulations promulgated under section 608, EPA refers to
industry standards. Without the existence of such standards, EPA
believes that a formal definition is not the best approach.
Several commenters stated that EPA should modify the proposed
regulatory language in Sec. 82.156 (i)(2) and (i)(2)(ii) to distinguish
best efforts from sound engineering/professional judgment. The
commenters are concerned that EPA erroneously included sound
engineering/professional judgment in the definition of best efforts.
The commenters stated that the intention behind best efforts was that
the owners or operators should do what is necessary within reason to
repair leaks within 30 days in situations where longer extensions
beyond 30 days are necessary to conduct repairs due to the
unavailability of spare parts or compliance with other federal, state,
or local regulations. In further discussions with the commenters, it
appears that over time any initial distinction that EPA and CMA made in
the settlement agreement between best efforts and sound engineering/
professional judgment has become convoluted. EPA believes that the
rationale for using the term best efforts for repairing leaks that
required an extension beyond the initial 30 days was to ensure that
where there are multiple leaks or where a leak can be partially
repaired, the owners or operators will complete all reasonable actions
during the initial 30 days. The result will be to reduce the leak rate
as much as possible during the initial 30 days where additional time is
necessary to complete all repair activities. Additional comments
submitted by CMA confirm this interpretation. Therefore, EPA is
amending Sec. 82.156(i)(2) to remove the references to best efforts.
Instead, EPA will state that the owners or operators must conduct all
necessary leak repairs that do not require additional time beyond the
initial 30 or 120 days. EPA believes that this change in language more
adequately conveys the intent of this provision, which is to allow
additional time, while ensuring that all that can be done has been
done.
5. Static and Dynamic Tests
EPA received many comments supporting the use of static and dynamic
tests. While these commenters agreed with the need for these tests,
several suggestions for when the tests should be used and alternative
terminologies were suggested. These comments will be discussed in
greater detail later in this subsection. EPA received one comment
opposing the use of static and dynamic tests. The commenter stated that
static and dynamic tests are not precisely reliable methods on which to
base a requirement to retrofit a piece of equipment. The commenter
stated that it had documented cases where the results of such tests
have been inconclusive. The commenter further believes that the tests
are overly burdensome and unnecessary. The commenter believes that the
tax and cost of refrigerants should provide the necessary incentives.
[[Page 40429]]
EPA agrees that the expense of ozone-depleting refrigerants will
influence the decisions made by many organizations. However,
considering the size of the refrigerant charges for some of the
appliances subject to the leak repair provisions, ensuring that
appliances brought back on-line are no longer leaking above the
threshold, is important. Also, often appliances may use an HCFC, which
is not subject to federal tax. In the settlement agreement, EPA and CMA
agreed to propose this verification approach. Since these tests are
regularly performed to ensure that a leak has been repaired, EPA
believes these requirements are not overly burdensome. Furthermore, EPA
believes that performing such tests provides the owners or operators
with a strong measure of insurance. Moreover, since EPA has proposed
options other than retrofitting or retiring the leaky equipment, such
as reducing other leak sources, EPA does not believe a retrofit or
replacement decision would be based solely on one failed static or
dynamic test. Therefore, EPA will require that the tests be performed.
EPA received several comments regarding the use of the terms
``static'' and ``dynamic.'' Commenters stated that uses of the terms
``first verification test'' or ``initial verification test'' and
``follow-up verification test'' would be more appropriate. Among the
reasons suggested for this change is a concern that the terms static
and dynamic have commonly understood meanings. Static generally means a
system is at rest and dynamic generally means a system is operating.
One commenter stated that during the settlement discussions the terms
were crafted to discuss repairs, using the widely understood meaning.
However, later it was realized that industrial process refrigeration
equipment that was not shut down during repairs was neglected. The
terms were then broadened to mean a first verification and a second
verification test. After discussions with employees, the commenter now
believes that the broadened definitions would likely cause confusion.
Another commenter agreed that while the broadened definition captures
the situations faced by the owners or operators, the language would be
confusing. Several commenters suggested that the terms ``first'' or
``initial verification test'' and ``follow-up verification test'' would
be more accurate.
EPA agrees with these commenters. The definitions of static and
dynamic were broadened to capture real world situations. Since the
settlement agreement bound the Agency to a proposal that included those
terms, EPA did not consider the use of other language to describe the
tests. However, EPA agrees that ``initial verification test'' and
``follow-up verification test'' more accurately describe the tests,
particularly since often the same types of tests qualify as both static
and dynamic, depending on when they are performed. EPA believes
changing the language would further clarify that the state of motion is
not necessarily a criterion. Therefore, through this action, EPA will
replace the proposed terms ``static'' and ``dynamic'' with the terms
``initial verification test'' and ``follow-up verification.''
Commenters suggested that EPA streamline the definition of initial
verification test (static verification test) by removing illogical or
redundant statements. The commenters state that there is no need to say
that the test will be performed before the appliance or portion of the
appliance has reached operation at normal working conditions of
temperature and pressure because it would not be possible for an
appliance or portion of an appliance to do so without a full
refrigerant charge. EPA understands the commenters' concerns. Clearly,
without a full charge of refrigerant, normal working conditions of
temperature and pressure cannot be reached. However, to limit the
potential for misinterpretations, EPA would rather be overly explicit.
One commenter requested that EPA distinguish between the terms
steady-state operating conditions, steady-state operating
characteristics, normal working conditions and normal operating
conditions. The commenter stated that in engineering terms, these terms
are not always equivalent. For example, if the values of all the
variables in a process (e.g. all temperatures, pressures, volumes, flow
rates, etc.) do not change with time, except for possibly minor
fluctuations, the process is said to be operating at steady state.
However, if any of the process variables change with time, transient or
unsteady-state operating is said to exist. Depending upon the
industrial process that the industrial process refrigeration equipment
is supporting, its normal operation in strict engineering terms may be
characterized as steady-state or unsteady-state. The commenter
therefore believes it is more appropriate when referencing the
operation state of the refrigeration equipment, for purposes of
indicating when either verification test should be conducted, for the
Agency to adopt the terminology ``normal operating characteristics and
conditions.'' Furthermore, the commenter believes that normal operating
characteristics and conditions has an understood definition equivalent
to how the NPRM defines and refers to steady-state operations.
While EPA received other comments supporting the use of the term
steady-state, EPA agrees with the concerns regarding the potential for
confusion. The use of the term steady-state in this context originated
with the settlement agreement. While the proposed definition for
steady-state appears acceptable to most of the affected industry, EPA
is concerned that someone familiar with the engineering distinctions
between steady-state and unsteady-state would be confused. Therefore,
EPA believes it is appropriate to replace ``steady-state'' with
``normal operating characteristics and conditions.'' EPA will not be
revising the definition in any substantive manner; therefore, the
definition itself will be consistent with the spirit of the settlement
agreement.
Several commenters raised concerns on when a follow-up verification
test is performed. The commenters are concerned that the NPRM does not
properly consider occasions where a verification test at normal
operating characteristics and conditions is impractical or less
meaningful. Commenters stated that there are repair situations where
the repair sites will not be accessible to perform a meaningful
verification test after the industrial process refrigeration equipment
is returned to normal operating characteristics and conditions. One
example would be a verification test for leaks inside a heat exchanger.
The tests can be performed while the exchanger is open. A test
performed after the exchanger is reassembled would not be as
meaningful. Other examples provided by the commenters include:
compressor internals, locations that must be re-insulated prior to
start-up, and locations in close proximity to dangerous hot equipment
or moving parts where access is not possible after reassembly. EPA did
discuss whether it would be appropriate to permit follow-up
verification tests prior to returning to normal operating
characteristics and conditions; however, EPA did not propose to allow
these alternative tests. Commenters stated that since there are
situations where the tests prior to a return to normal operating
characteristics and conditions will be more meaningful and reliable,
EPA should permit sound engineering/professional judgment to be used to
determine what the appropriate operational state of industrial process
refrigeration equipment should be when the follow-up verification tests
are
[[Page 40430]]
conducted. One commenter stated that EPA should take confidence in the
fact that leak detection and repair of appliances did not originate
with section 608; it has been an integral part of maintenance practice
for many years.
EPA agrees that in certain circumstances, performing a follow-up
verification test prior to normal operating characteristics and
conditions may be more meaningful and reliable. Performing multiple
verification tests may be appropriate under many conditions. One of the
Agency's concerns, however, was that until normal operating
characteristics and conditions are achieved, it may be unclear if the
leak repair work was truly successful. EPA was concerned that at less
than true operational state, a particular fix may not hold. The Agency
understands that leak detection and repair has been part of this
sector's practices before the development of these regulations.
Furthermore, EPA believes that as class I and class II refrigerants
become less readily available, leak detection and repair efforts may
increase. Moreover, EPA believes that in most cases the owners or
operators rely on personnel with appropriate professional judgment in
determining the best way to repair and verify the repair of a leak
source. Therefore, through this action EPA will amend the proposed
requirements for performing follow-up verification tests. EPA will
require that the test be performed at normal operating characteristics
and conditions unless sound professional judgment determines that a
follow-up test should be performed prior to returning to normal
operating characteristics and conditions.
EPA received several comments requesting that the Agency clarify
that initial and follow-up verification tests are to be performed even
when repairs are made within 30 days. One commenter stated that the
NPRM was unclear. The commenter believes that as a practical matter,
and to minimize confusing plant operations, it would be preferable to
treat all repairs equally, and to require documentation that tests
should be done to verify a successful repair. Another commenter stated
that these tests are a measure of compliance. Another commenter stated
that the settlement agreement makes no mention that these requirements
must be met only in cases where the owners or operators are granted
additional time. Furthermore, the settlement agreement does not limit
these tests to situations where an industrial process shutdown has
occurred, or where the repairs were made while an appliance was
mothballed. This commenter believes that, with regards, to the
performance of these tests, the regulatory language should be in full
agreement with the settlement agreement.
EPA agrees that the tests demonstrate whether a leak repair effort
was successful or not, though the tests do not necessarily mean that
the leak rate has been sufficiently reduced. In addition, EPA
understands that often these tests have been routinely performed
regardless of any regulatory requirement. EPA believes that many
organizations have internal policies requiring that verification tests
be performed. EPA agrees that having a consistent requirement that can
easily be paraphrased for technicians is useful. Moreover, EPA does not
believe requiring these tests in all circumstances equates to any
substantial burden to industry. Therefore, EPA will require that
initial and follow-up verification tests be performed when repairing
leaks on industrial process refrigeration equipment where such leakage
has surpassed the 35 percent annual leak rate.
One commenter requested that EPA clarify that the verification
tests demonstrate the success of a leak repair, not that the leak rate
has been reduced below the threshold. EPA agrees with this commenter.
It was not EPA's intention to imply that the verification test shows
what the leak rate is. However, EPA believes that where the
verification test shows that the repairs have been successful, in most
cases this will mean that there has been a reduction in the leak rate.
If more than one leak exists, it is possible that the leak rate could
remain above acceptable levels. In such cases the owners or operators
would be expected to take reasonable actions.
Two commenters stated that where an industrial process shutdown is
not required, the initial and follow-up verification tests will be
identical; therefore, a follow-up verification test is unnecessary. EPA
disagrees with these commenters. While the same test might be
performed, the fact that the tests are performed at different times is
important. If a repair consists of tightening flange bolts, for
example, it may appear that a repair is successful during an initial
verification test. However, it may not be immediately obvious that the
repair was unsuccessful. A bolt may appear to have been tightened
sufficiently; however, if the threading is damaged, it may loosen in a
short period of time. Performing a follow-up verification test will
demonstrate that a problem still exists. EPA believes that even when an
industrial process shutdown is not necessary, initial and follow-up
verification tests will play vital roles. Therefore, EPA is requiring
that both initial and follow-up verification tests be performed when
repairs are made even if an industrial process shutdown is not
required.
EPA received one comment requesting that more than one follow-up
verification test be permitted before an owner or operator must notify
EPA of a failure. The commenter is concerned that situations could
arise in which a follow-up verification test may indicate a failure
even though in reality the leak has been fixed. The commenter suggested
that it would be more reliable in the event that the test was
inconsistent with the expected results, that subsequent tests be
permitted to be performed during the 30-day period. EPA understands
this commenter's concerns. Since repairs are often interrelated, tests
may demonstrate a need to continue repair efforts. EPA proposed to
permit the follow-up verification test to occur within 30 days.
However, since the Agency is revising the terminology used in the NPRM
to first repair efforts and second repair efforts, EPA believes the
issue has been resolved. Tests will be completed after the repair
efforts are complete.
EPA received comments concerning the interpretation and use of
sound engineering/professional judgment. Commenters stated that EPA
should not incorporate sound engineering/professional judgment into the
interpretation of best efforts. Sound engineering/professional judgment
should only be discussed in relation to verification tests. EPA has
already addressed the commenters' concerns about the NPRM's
incorporation of sound engineering/professional judgment with the use
of best efforts.
A few commenters stated that since the decision-making process may
not be performed by an engineer, the use of the term engineering is
inappropriate. In the NPRM, EPA states that sound engineering or
professional judgment means a ``combination of the use of logic and
operational experience, with methods of calculation that are practical,
based on training, experience and education'' (60 FR 3997). EPA agrees
that in many cases the professional making the decision may not be an
engineer. Therefore, EPA will use the term, ``sound professional
judgement.''
One commenter stated that sound professional judgement should be
employed to determine where and which initial and follow-up
verification tests should be performed, whenever
[[Page 40431]]
leaks that are subject to the leak repair requirements for industrial
process refrigeration equipment must be repaired. EPA agrees with this
commenter.
Another commenter stated that fluorescent dye combined with a leak
monitoring UV light source should be considered an acceptable initial
or follow-up verification test. In the NPRM, EPA discussed three types
of verification tests. EPA states that the three discussed represent
examples that EPA believes would be considered acceptable forms of
verification tests. EPA states that other types of tests may exist (60
FR 3997). EPA believes that sound professional judgement should be
employed when determining the type of verification test that is
appropriate for the particular leak. Therefore, it is not necessary for
EPA to state which tests are acceptable. However, EPA would like to
clarify that any verification test must be acceptable under all other
regulatory requirements. For example, if fluorescent dye was combined
with an ozone-depleting substance, where that ozone-depleting substance
is used to propel the dye from a pressurized dispenser into the
appliance, that application would be banned under the nonessential
products ban promulgated under section 610 of the Act.
EPA received one comment regarding the need to perform verification
tests if the owner or operator determines that the industrial process
refrigeration equipment should be retrofitted. For example, if the
leaky equipment is shut down to perform repairs on the heat exchanger,
and as the repair work begins, it is determined that the compressor is
about worn out, the owner or operator may choose to retrofit or replace
the system rather than complete repairs. The commenter believes that
under these circumstances the obligation to perform the verification
tests should be lifted. EPA agrees with this commenter. If the owner or
operator is switching to a retrofit, replace, or retire mode, the
obligation to bring the leak rate below 35 percent is suspended.
Therefore, it is not necessary to perform tests to verify the success
of individual leak repair efforts.
EPA received an additional comment concerning the use of
verification tests when the owners and operators are retrofitting or
replacing the appliance. The commenter was concerned that the proposed
language would obligate owners or operators to perform verification
tests on replaced or retrofitted equipment. EPA agrees that these tests
are not necessary for replaced or retrofitted equipment.
6. Fixing Other Leaks
EPA received one comment regarding what happens if EPA disapproves
the parameters for fixing leaks. In Sec. 82.156(i)(4), EPA stated that
if repairs fail a follow-up verification test, the owner or operator
could choose the option of doing whatever it takes to get the rate
below the threshold within 180 days. It is anticipated that the owner
or operator will follow parameters from earlier notifications. EPA may
disapprove of those parameters; however, the parameters are deemed
approved if EPA does not object within 30 days after receiving notice.
The commenter supports this approach, but is concerned about what
happens if EPA disapproves. In such cases the commenter suggests that
the owner or operator and EPA should reach agreement on what parameters
will be used. EPA agrees with the need to specify what will occur if
the EPA objects to the parameters. If this situation occurs, in all
likelihood, EPA will consult with the owner or operator. However, EPA
and the owner or operator may not necessarily ``reach agreement.''
Through this action, EPA will specify that where EPA objects to the
submitted parameters for bringing the overall leak rate below the
applicable threshold, EPA will select appropriate parameters. In all
likelihood, this selection will be made expeditiously since the
applicable timelines will remain in effect. If such disapproval
significantly limits the ability of the owners or operators to comply
with appropriate timelines, EPA may consider granting an extension. If
no agreement can be reached, it is anticipated that the course of
action may be to retrofit or replace the affected industrial process
refrigeration equipment. Under such circumstances, EPA may need to
consider providing additional time for the owners or operators of the
affected industrial process refrigeration equipment to complete
retrofit or replacement activities.
EPA received several comments supporting the provision relieving
the owner or operator of the obligation to retrofit or retire
industrial process refrigeration equipment where, within 180 days, the
owner or operator has reduced the leak rate to below 35 percent by
completing other repairs and tightening the operation of the appliance.
These commenters believe that by reducing the amount of refrigerant
being released, the owner or operator has met the goals of the leak
repair provisions although the original leak remains.
EPA received one comment suggesting that the Agency should permit
one year instead of 180 days. The commenter believes that providing
additional time will not detract from the requirement to retrofit or
replace the appliance. EPA disagrees with this commenter. EPA believes
that to complete retrofit or replacement activities within one year, it
would be necessary to perform preparatory work on the same appliance.
The lack of clear direction between retrofitting and repairing the
appliance that late in the year may influence the ability of the owner
or operator to complete retrofit activities. Furthermore, EPA believes
that where the leak rate can be reduced to below the applicable
threshold, 180 days should be sufficient time. The leak repair
provisions being promulgated through this action are designed to
provide greater flexibility without compromising the goals of reducing
emissions. To achieve this goal EPA proposed the shortest amount of
additional time necessary to complete repairs. Therefore, EPA does not
believe it is necessary to further extend this provision.
EPA received one comment requesting that the Agency specify that
Sec. 82.156(i)(3)(v) only apply where repairs have failed a follow-up
verification test and the owners or operators have chosen to do
whatever it takes to bring the leak rate below the applicable
threshold. EPA agrees that there are other options available to the
owners or operators. Therefore, through this action, EPA will clarify
that the owner or operator may choose this option, but that other
options, such as retrofitting the appliance, also exist.
EPA received several comments supporting the need to switch to the
retrofit or replacement mode after discovering that successful leak
repairs cannot be made in accordance with the necessary timelines. EPA
received one comment suggesting that when a switch is made from a
repair mode to a retrofit/replacement mode, the owner or operator of
that industrial process refrigeration equipment should be held to the
normal deadlines for retrofitting or retiring the appliance. The
commenter stated that if the owner or operator has spent a month trying
to fix the leaks, the owner or operator would have eleven months left
for retrofitting, replacing, or retiring the equipment. EPA agrees with
this commenter.
EPA received several comments supporting the need for additional
time to complete the retrofit or retirement of industrial process
refrigeration equipment beyond one year. One commenter stated that EPA
should
[[Page 40432]]
clarify however, that additional time should be permitted under
Sec. 82.156(i)(7)(i), not one additional year. In some cases, more or
less than one year is appropriate. One commenter stated that additional
time, up to one additional year, should be permitted under
Sec. 82.156(i)(7)(ii). The commenter also stated that where additional
time beyond the initial additional ``year'' is permitted in
Sec. 82.156(i)(7)(iii), EPA should explicitly state that additional
time beyond the one year is permitted, not an additional year. EPA
agrees with these commenters.
F. Industrial Process Shutdown
EPA received several comments supporting the extension to complete
repairs when an industrial process shutdown is required. One commenter
suggested that the term process shutdown should not be used
interchangeably with the term industrial process shutdown. To provide
clarity and consistency, the commenter believes the Agency should use
and define the term industrial process shutdown exclusively. EPA agrees
with this commenter. Therefore, EPA will define and use the term
industrial process shutdown, instead of process shutdown.
EPA received one comment stating that the need for additional time
beyond the 120 days permitted for an industrial process shutdown may
not be evident within the initial 30-day repair period. The commenter
is concerned that an initial determination that no other federal,
state, or local regulations apply may be made by the owners or
operators. It is also possible that within the initial 30 days the
owners or operators may not realize that the appliance requires parts
that are unavailable. After the industrial process shutdown is
complete, possibly as late as day 115, such a determination may be
made. Under those circumstances, the commenter is concerned that
additional time beyond the 120 days would no longer be available. EPA
understands these concerns. While the Agency believes that in most
cases the owner or operator will know that other regulations will delay
repairs or that the parts are not readily available within 30 days, it
is possible that such a determination will not be known in advance of
completing the industrial process shutdown. Therefore, through this
action, EPA will specify that additional time is available beyond the
30-day or 120-day repair period where other federal, state or local
regulations are applicable or where the necessary parts are
unavailable. Only the additional time needed to receive delivery of the
necessary parts or comply with the pertinent regulations will be
permitted.
G. Retrofitting or Replacing Equipment
EPA received several comments concerning retrofitting or replacing
equipment. Commenters supported the proposal to permit additional time
where specific circumstances exist. Comments about specific aspects of
the proposal are discussed below.
EPA received one comment asking for clarification regarding the
process of notification to EPA if repairs done in good faith are not
successful and retrofitting must be pursued. The concern is that there
may be cases where a repair requires an industrial process shutdown. If
the ``clock'' for notifying EPA begins the date the leak rates are
discovered, there may be cases where six months has passed. Therefore,
the commenter suggested that EPA permit six months from the date the
decision to retrofit is made. EPA disagrees with this commenter. EPA
believes six months provides enough time both when the 30-day timeline
and 120-day timeline apply. The owners or operators would have
acceptable time to make repairs, to determine that retrofitting is
appropriate, and to submit any required information.
EPA received a few comments concerning returning equipment to
operation after the decision to retrofit, replace, or retire the
appliance has been made. One commenter stated that EPA should allow an
owner or operator to start up and operate appliances that the owner or
operator determines, after attempting to repair leaks, cannot pass an
initial verification test, if the owner or operator plans to retrofit
or replace the appliance in accordance with Sec. 82.156(i)(6) or such
longer time as may apply in accordance with Sec. 82.156(i)(7) (i), (ii)
and (iii) or Sec. 82.156(i)(8) (i) and (ii). EPA agrees with these
commenters. If the owners or operators of affected industrial process
refrigeration equipment attempt to repair leaks, but determine the need
to retrofit or replace the equipment in accordance with the provisions
promulgated through this action, the affected industrial process
refrigeration equipment may be brought back on line without an initial
or follow-up verification test.
EPA received related comments concerning the ability of the owners
or operators to switch from the repair to the retrofit mode, and from
the retrofit to the repair mode. One commenter stated that as long as
all applicable deadlines are met, the owners or operators should have
the flexibility to change their initial determination of retrofitting
or repairing the industrial process refrigeration equipment. EPA agrees
that as long as all applicable deadlines are met, the owners or
operators may change their initial decision to retrofit, replace, or
repair leaky industrial process refrigeration equipment.
One commenter stated that the proposed requirement to develop
retrofit plans within 30 days would be difficult for large industrial
process refrigeration equipment. It may take time for the owners or
operators to determine the cause of the leak and whether the best
course of action is to repair or retrofit the appliance. The commenter
requests that EPA permit 90 days for the owner or operator to obtain
all the appropriate information to complete a valid retrofit or
retirement plan. The commenter believes this is consistent with EPA's
recognition that it may take time for the owners or operators to
evaluate the available options. EPA agrees that it may take time to
evaluate the available options; however, EPA does not believe it is
necessary to permit 90 days to develop retrofit or retirement plans.
EPA believes that system mothballing and the ability to switch from a
repair mode to a retrofit mode provide the owner or operator of the
affected appliance with sufficient time to develop such plans. EPA
believes that particularly where the type of leak is unknown, most
owners or operators will attempt to identify and repair the leak first.
Therefore, EPA does not believe it is necessary to require additional
time to develop retrofit or retirement plans.
EPA received one comment regarding when the clock starts for
retrofitting a system. The commenter is concerned that
Sec. 82.156(i)(3)(ii) permits the owner or operator of industrial
process refrigeration equipment to determine the need to retrofit
industrial process refrigeration equipment after a failed follow-up
verification test; however, Sec. 82.156(i)(6) states that all work
under the plan must be completed within one year of the plan's date and
the plan must be developed within 30 days of discovering the leak. The
commenter is concerned with this apparent inconsistency. EPA agrees
with this commenter's concern. While in general, plans are to be
developed within 30 days of discovering the leak, this final action
provides opportunities for the owners or operators to switch to a
retrofit mode. EPA will modify the language in Sec. 82.156(i)(6) to
reflect these scenarios.
EPA received one comment requesting, that if the owner or operator
intended to retrofit or replace an
[[Page 40433]]
appliance, and developed an appropriate plan, and if the owner or
operator later determines that the normal charge of the appliance was
not correctly calculated, the owner or operator should be relieved of
the obligation to retrofit or replace the appliance and therefore, be
able to withdraw the plan. The commenter states that if the appliance
was overcharged, the calculations would be incorrect. EPA understands
these commenters concerns. As discussed above, EPA realizes that owners
or operators may not have kept records of refrigerant charges prior to
the promulgation of regulations under section 608. Therefore, EPA will
permit the owner or operator to withdraw a retrofit or retirement plan
if the calculations of the full charge used to determine the leak rate
were incorrect. However, the owner or operator retracting such a plan
will need to demonstrate clearly that the original determination was
incorrect and why. EPA will be particularly concerned where the fourth
methodology for determining the full charge was used. Where a range is
used to establish the full charge and that range is altered, EPA is
requiring that records be maintained and be made available to EPA upon
request.
H. Recordkeeping and Reporting Requirements
EPA received several favorable comments regarding the proposed
recordkeeping and reporting requirements. One commenter stated that
although the recordkeeping and reporting requirements are more detailed
than those promulgated in May 1993 and that they do constitute an
additional burden, the commenter supports the requirements. The
commenter believes the requirements are necessary to allow EPA the
opportunity to verify that best efforts were expended to find and
repair leaks. Another commenter stated that the provisions mostly
appear necessary and appropriate, in order to assure compliance. This
commenter did offer minor suggestions for the requirements that are
discussed below. EPA received two negative comments on recordkeeping
and reporting comments. One commenter stated that the provisions appear
to be extremely burdensome and time consuming. This commenter feels
that more flexibility should be provided and that incentives to
expeditiously fix leaks and even retrofit will be derived from the cost
of refrigerant. The commenter further stated that the NPRM contains 12
separate reporting items subject to noncompliance enforcement actions
and strict deadlines while providing no environmental benefit. The
second commenter stated while most of the requirements for
recordkeeping and reporting seem justified, Sec. 82.166(n) should not
include recordkeeping or reporting requirements for Sec. 82.156(i) (3)
(iii), (iv), and (iv) because they are too burdensome. EPA disagrees
with these commenters. This rulemaking, in its entirety, is designed to
provide greater flexibility to the industry. The rule will alleviate
stringent repair and retrofitting timelines and allows for more
flexible approaches for lowering the overall leak rate of affected
appliances. EPA has proposed and today is adopting reporting and
recordkeeping requirements in conjunction with the more flexible
approach to ensure compliance with this less stringent scheme. EPA
recognizes that the reports themselves do not constitute an
environmental benefit. However, ensuring compliance with this new leak
repair scheme does provide a benefit. The three specific provisions
cited by the second commenter are pertinent to EPA. One provision
reports the results of a failed follow-up verification test. This
failure is a trigger for the owner or operator to choose a new course
of action. Notification to EPA of the failure is important and would
accompany other required information. The other two provisions
communicate the results of either successful second repair efforts or
tightening other aspects of the appliance to reduce the leak rate below
the threshold. Since these events result in relieving the owner or
operator of having to retrofit or replace the appliance, it is
essential for the owner or operator to notify EPA. These recordkeeping
and reporting requirements are not always required. If the owner or
operator of the industrial process refrigeration equipment can complete
repairs successfully during the initial 30 days, there are no
applicable recordkeeping or reporting requirements.
One commenter suggested that EPA clarify that only the information
listed in Sec. 82.166 (n),(o) and (p) must be maintained. The commenter
suggested several other language changes to ensure an understanding of
the terminology used. Particularly, the commenter suggested and EPA
clarified through the terms, ``fix all other outstanding leaks,'' ``onsite,''
``refrigeration facility,'' and ``time changes.'' Another
commenter suggested that EPA clarify under what circumstances specific
data elements should be included. EPA has changed the language in
Sec. 82.166 (n), (o), (p), and in the newly added (q) so that these
sections clearly reflects EPA's intent.
EPA received comments regarding notification to EPA of changes from
the original estimates concerning repair work. One commenter stated
that it was unclear and confusing in both the preamble and the
regulatory language regarding time changes for completion of work from
the original estimates. The commenter believes that EPA should require
notification only if the estimated date of completion of work changes
and results in moving the completion date forward. Other commenters
noted that if EPA reviewed every adjustment in the affected repair
schedules, EPA would receive many unnecessary notices and companies
would face additional compliance burdens. EPA agrees with these
commenters. EPA is only concerned when the estimated date of completing
work results in extending the date of completion, thus increasing the
potential for refrigerant releases. Through this action EPA will change
the proposed regulatory language to state that when the repair schedule
results in extending the date of completion, the reasons for these
changes must be documented and submitted to EPA within 30 days of
discovery of the change in timing.
EPA received comments concerning the potential for the owners or
operators of industrial process refrigeration equipment to be placed in
a situation where they will not be able to comply with their original
schedules because the vendor is unable to meet the delivery schedule
previously supplied to the owner or operator. For example, if a vendor
quotes 20 weeks for delivery and in week 18 changes that estimate to 36
weeks, the owners or operators of the affected appliances will be
forced to reconfigure their installation schedules. EPA understands the
concerns raised by these commenters. If a critical component is
delayed, this might influence whether the owner or operator can meet
their schedule. EPA is aware that often a retrofit will involve several
vendors. In some cases non-critical components may be delayed. It may
be possible to rearrange the schedules to install delayed parts later.
Where these parts must be on hand for work to proceed, delays in
delivery by the vendors could result in missed deadlines by the owners
or operators. Therefore, through this action, EPA will permit an
extension of the original deadlines where delays by vendors limit the
ability of the owners and operators to proceed with their retrofit or
replacement activities. Extensions will be based on the delivery date
for the necessary components.
[[Page 40434]]
EPA received one comment requesting that instead of filing for
additional time beyond the initial one-year period six months after the
expiration of the 30-day period following the exceedance of the 35
percent leak rate, the owner or operator of the industrial process
refrigeration equipment should submit information requesting additional
time 10 months from the expiration of the 30-day period. The commenter
argues that since the materials involved in construction of custombuilt
equipment may not normally be used by a refrigeration vendor, it
is common for delivery dates to slip. The commenter believes that an
owner or operator may request additional time even where it is unclear
that such time is actually necessary. However, if the owner or operator
must make the decision to request additional time at 10 months instead
of six months, the owner or operator may be more realistic in his/her
evaluation. While EPA understands these concerns EPA does not believe
it is appropriate to postpone the date. EPA believes that in most cases
it will be clear at six months if additional time will be necessary.
Furthermore, EPA would prefer that those who are unsure if an extension
will be necessary still notify the Agency. If EPA believes the request
is unjustified, EPA can notify the owner or operator of such a
determination. It would be inappropriate for the owners or operators to
make such requests at the 10-month mark where EPA has 60 days to notify
the owner or operator if the request was rejected.
EPA received comments concerning the need to clarify that in
particular circumstances, all the information listed in Sec. 82.166(n)
would not need to be included in a report submitted to EPA. EPA agrees
with this commenter. In the NPRM (60 FR 3995) EPA indicates that under
certain circumstances particular items listed in Sec. 82.166(n) would
not be expected. However, EPA did not include this information in the
regulatory text. Moreover, EPA understands that while combining the
recordkeeping information list appears to simplify the provisions,
misinterpretations could arise. Therefore, EPA has clarified the
recordkeeping provisions in this final action by stating under what
circumstances specific data elements are or are not required.
EPA received one comment regarding the need to modify the language
in Sec. 82.166(n) and (o). In the NPRM these provisions used the
language, ``industrial process refrigeration equipment,'' while the
requirements are also applicable to the federally-owned commercial and
comfort-cooling appliances. EPA agrees with these comments and has made
the necessary changes.
One commenter stated that EPA should revise Sec. 82.156(i)(7)(i).
The NPRM states that information, in accordance with Sec. 82.166(o),
will be submitted to EPA and within 60 days EPA will notify the owner
or operator of its determination. The commenter suggests that instead,
the request for additional time should be deemed acceptable unless the
Agency notifies the commenter within 60 days. EPA disagrees with this
commenter. EPA has permitted for an automatic process of granting up to
one year where the conditions of Sec. 82.156(i)(7)(ii) apply. EPA
distinguished between these two provisions because if the conditions of
Sec. 82.156(i)(7)(i) apply, the Agency can grant as much time as
necessary. This provision is far more open-ended than
Sec. 82.156(i)(7)(ii). Therefore, EPA continues to believe it is
necessary for the Agency to review the request for additional time,
agree that time to the extent reasonably necessary can be granted, and
notify the owner or operator of EPA's decision.
EPA received one comment requesting notification of the proper
address for submitting reports to the Agency. EPA will cross reference
the address listed in Sec. 82.160: Section 608 Recycling Program
Manager, Stratospheric Protection Division, 6205J, 401 M Street, SW.,
Washington, DC 20460.
I. Purged Refrigerants
EPA received several comments regarding the treatment of purged
refrigerants that are destroyed. The commenters agreed that if the
refrigerant is not vented to the atmosphere, but is instead destroyed,
the material did not leak and should not be included in any leak rate
calculations. Several commenters suggested that records be kept on-site
by the owners or operators and be made available to EPA upon request.
One commenter stated that a requirement to notify EPA will prove to be
a resource drain for EPA and will only provide a minimum environmental
benefit. EPA agrees with these commenters and will require that records
indicating the amount of purged and destroyed refrigerant be maintained
and made available to EPA upon request.
One commenter requested that EPA exempt from leak detection
determinations any refrigerant purged and destroyed where the
destruction can be verified, regardless of the technology utilized. The
commenter stated that refrigerant that is leaked into a system, then
converted to elemental compounds or other non-ozone-depleting
substances, by a process reactor or a hydrochloric acid burner should
qualify for this exemption. In discussions with the Agency, commenters
indicated that where an owner or operator decides to take credit for
destroying purged refrigerant, it will be possible to find an
appropriate method for verifying how and how much refrigerant was
destroyed, if the refrigerant is ``completely destroyed'' for purposes
of the phaseout regulations promulgated under sections 604 and 606 of
the Act. EPA agrees with these commenters. While effective destruction
of purged refrigerants can take place in a number of technologies, EPA
does wish to ensure high efficiency. Therefore, so that purged
refrigerant is not counted as part of the leak rate, today's rule will
require purged refrigerant to be destroyed at a destruction efficiency
of 98 percent or greater, consistent with both the phaseout and the
labeling rules. Any destruction technology may be used for the purposes
of destroying purged refrigerants under this rule, as long as the
destruction efficiency is at least 98 percent.
J. Federally-Owned Chillers
EPA received several comments regarding the proposed requirements
for federally-owned chillers. Several commenters supported the proposed
language with only minor changes. A few commenters stated that EPA
should broaden the requirements to allow additional time for nonfederally
-owned appliances to repair leaks. The commenters were
concerned with manufacturing backlogs. One commenter stated that the
Federal government should abide by the same rules as industry, noting
that if federal entities are having trouble meeting timelines, large
private companies may also be having the same problems. One commenter
stated that if federal facilities cannot meet the time frames, then
state and local governments may have similar difficulties. The
commenter believes that giving an extension of time only to federal
facilities could be viewed by the states and local governments as a
mandate to them and an excuse for the federal government. One commenter
stated that since the federal procurement process is governed by
federal regulations a specific exemption was not necessary.
Several commenters stated that they are troubled that EPA has
proposed to extend the sound professional judgment
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and verification testing requirements to the owners and operators of
federally-owned commercial refrigeration appliances for three reasons.
First, because the owners or operators were not part of the settlement
agreement between EPA and CMA. Second, because the commenters believe
that EPA incorrectly stated that minor aspects of this rulemaking
affect federally-owned chillers. Finally, because the commenters
believe that this rulemaking constitutes an additional burden and that
further legal action may be taken by the owners or operators of
federally-owned chillers.
EPA understands all the concerns submitted by the commenters. In
the NPRM, EPA states that the Agency received information from the
Department of Energy (DOE) indicating a need for the proposed
extension. EPA discussed with DOE the proposed language, including the
use of verification tests. DOE understood and agreed with the
requirements. Comments received during the public comment period from
DOE suggest clarifications to the proposed regulatory language. DOE is
the only federal entity to submit comments specific to this
requirement.<SUP>2 EPA believes that in most cases federal entities
should be able to repair appliances within 30 days or retrofit/replace
equipment within one year, and that only under limited circumstances
will this extension apply to federally-owned appliances.
\2\ Additional comments were received by the Tennessee Valley
Authority concerning electricity generated by a nuclear power
reactor, not the exemption for federally-owned chillers.
EPA did not receive any comments during the public comment period
from state or local governments regarding this proposal. Also, EPA
received no information regarding the need for extensions for state and
local governments prior to issuing the NPRM. Since EPA often receives
formal and informal comments from state and local entities, EPA can
only conclude that state and local entities do not believe an extension
is necessary. The only comments regarding such an extension for state
and local entities came from private-sector organizations.
One commenter stated that since the federal procurement process is
governed by federal regulations, a de facto exemption exists without
EPA specifying an exemption. EPA disagrees with this commenter. EPA is
today providing additional time based on compliance with other federal,
state, and local regulations for industrial process refrigeration
equipment. This provision is applicable for both private and publicly
owned or operated industrial process refrigeration equipment. However,
it is not applicable to for comfort-cooling or commercial appliances.
An additional exemption for federally-owned chillers not used for
industrial process refrigeration equipment is necessary. Without such a
provision, additional time based on federal, state, and local
regulations would not apply.
EPA understands that often large private-sector organizations may
have complicated procurement requirements. However, private-sector
organizations do not need to go through public notice and comment to
amend procurement practices.
Private-sector organizations can effect changes in order to ensure
compliance. EPA proposed this extension because federal government
officials are bound to follow federal regulations regarding the
purchasing. There are only limited circumstances for expediting a
specific purchase or changing the procedures quickly. EPA recognizes
that the federal government is addressing the needs to provide more
flexibility for contract and procurement officers to expedite the
purchasing of the most cost-effective services and supplies. These
changes, however, have not yet alleviated all the hurdles faced by
those procuring appliances subject to this rulemaking.
In the NPRM, EPA focused on the procurement side of the issue.
Based on additional comments from DOE, EPA understands that, in
reality, the concerns raised by DOE also address how funding is
appropriated, as well as environmental and health concerns associated
with specific appliances owned or operated by DOE.
EPA recognizes that most of the appliances DOE is concerned with
are unique, even amongst the appliances owned or operated by the
federal government. DOE believes that in most cases it will be able to
comply with the 30-day and one-year requirement. However, appliances
used in the production of nuclear weapons and appliances located in
areas subject to radiological contamination must comply with a unique
set of environmental and public safety activities. It may be necessary
to confront specific radiological concerns prior to beginning the
process of locating and repairing leaks.
In the NPRM, EPA stated that the Agency intended for this exception
to only be used in limited cases. EPA continues to believe that an
extension for federally-owned appliances is appropriate; however, EPA
recognizes that the proposed extension was overly broad. For example,
DOE uses hot cells at a number of its facilities to process radioactive
and radioactively-contaminated materials for research laboratories and
medical isotope production. Refrigeration appliances serving hot cells
may be standard chillers that are used for safe operation by the
maintenance of specific temperatures. Hot cells use shielding windows
for viewing manipulator operations. These windows are filled with
mineral oil or zinc bromide fluids, that also act as radiation shields.
If temperatures rise, the window gaskets could leak, the shielding
fluid levels could fall, and the hot cell contaminants might be
released, thus, posing a potentially serious safety hazard to the
operators. If a refrigeration appliance serving a hot cell fails or
leaks excessively, it may take several weeks for the radioactive
materials in the cell to be placed in a stable condition, such that the
materials can be handled safely. The use of temporary cooling
appliances in these circumstances is not a viable option due to nuclear
safety requirements. Thus, similar to industrial process equipment, the
hot cell operations must be shut down to minimize safety hazards, and
such a shutdown may take several weeks to be accomplished. In these
situations, repair work may not be able to be completed within 30 days,
since that work must be performed under safe conditions. EPA believes
that there are a limited number of appliances that are confronted with
this or similar situations. Therefore, the extension of the 30-day
repair requirement would be limited. In most cases, similar to where an
industrial process shutdown is required, 120 days will permit for the
safe shutdown of the hot cells and for repair work to occur.
EPA estimates that even where radiological contamination exists,
extensions will be used only to a limited degree. Moreover, EPA does
not believe it is appropriate to broaden this extension to appliances
owned by state and local governments since EPA is not aware of any
state or local government faced with an analogous scenario. Therefore,
federally-owned commercial and comfort-cooling refrigeration appliances
will be permitted 120 days for repairs to be completed if the appliance
is operating in, or sustaining activities and located in,
radiologically contaminated areas.
EPA continues to believe that federal procurement and
appropriations requirements influence the ability of the federal
government to retrofit/replace/retire an appliance within one year. As
stated above, while the federal government is attempting to streamline
many procurement practices, the types
[[Page 40436]]
of appliances and their associated costs currently limits the ability
of the federal government to comply with a one-year timeframe. In
particular, securing funds to retrofit an appliance subject to
radiological contamination may require a lengthy process. In most
cases, the owners or operators would wait for notification that the
funds have been allocated before requesting proposals. Therefore, EPA
will provide additional time beyond the initial one year, to the extent
necessary, where procurement or appropriations requirements interfere
with the ability of a federal entity to retrofit/retire/replace an
appliance within one year.
K. Mothballing
EPA proposed suspending the time-relevant leak repair requirements
promulgated under Sec. 82.156(i) for appliances that are temporarily or
permanently mothballed. In the NPRM, EPA states that it may be possible
for the owner or operator of the appliance to discontinue use
temporarily, perhaps on a seasonal basis. For example, ![[logo] US EPA](http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}