Equipment Containing Ozone Depleting Substances at Industrial Bakeries

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[Federal Register: February 6, 2002 (Volume 67, Number 25)]
[Notices]
[Page 5586-5595]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06fe02-65]

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ENVIRONMENTAL PROTECTION AGENCY
[FRL-7138-2]

Equipment Containing Ozone Depleting Substances at Industrial
Bakeries

AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of Bakery Partnership Program and response to comments.

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SUMMARY: The Environmental Protection Agency announces a unique
voluntary Partnership Program for the baking industry. Commercial
bakeries use large quantities of chlorofluorocarbons and other
chemicals that contribute to depletion of the ozone layer in industrial
process refrigeration appliances. Failure to comply with the stringent
leak detection and repair requirements under 40 CFR part 82 of the
regulations implementing Title VI of

[[Page 5587]]

the Clean Air Act can result in the release of tens of thousands of
pounds of ozone-depleting chemicals to the atmosphere, and expose
companies to enforcement liability.
Accordingly, EPA is offering incentives for those commercial
bakeries that agree to reduce or eliminate leaks of ozone-depleting
substances (ODS) used in refrigeration equipment. Companies that elect
to participate agree to audit certain appliances, comply with leak
detection and repair requirements, and phaseout Class I industrial
process refrigeration appliances and thus qualify for reduced penalties
and a waiver of civil liability for past violations. Penalties are
reduced even further (in some cases eliminated) for companies that
replace existing refrigeration units with systems that use non-ozone
depleting chemicals.
The terms of the agreement allow companies a high degree of choice
in designing the most cost-effective compliance strategy and
considering whether to switch to non-ODS systems. EPA encourages
companies to take advantage of this voluntary partnership, which offers
an economical way to protect the atmosphere and assure compliance with
the Clean Air Act.
This announcement indicates how EPA expects to exercise its
enforcement discretion in settling potential past violations of 40 CFR
part 82 with companies that elect to participate, and which agree to
meet certain conditions. It is designed to help companies assess their
liabilities and determine whether it is reasonable to audit and correct
violations in return for reduced penalties and a waiver of past civil
liability. The use of the terms ``must'' and ``shall'' establish
presumptions as to the terms and conditions and EPA's response. As
always, EPA reserves the right to exercise its discretion differently
if presented with unusual or compelling circumstances. This notice
establishes no new rights or obligations on behalf of EPA or any other
party, except to the extent specific terms are agreed to in
administrative orders on consent.
On December 10, 2001, the Environmental Protection Agency [EPA]
published a proposed voluntary program for the baking industry and
sought comments. The comment period has closed and comments have been
received. The proposed Bakery Partnership Program has been revised in
several ways based on the helpful comments. Some comments have been
editorial in nature, providing clarifying language which have been
adopted. Others have been more substantive, most of which have been
incorporated into this final announcement.
The most important change is that EPA agrees with the comment that
the starting date for the program should be moved forward from March
15, 2002 to April 26, 2002. In addition, EPA agrees with the comment
that an alternative dispute resolution mechanism should be available if
the informal attempts to resolve disagreements are not successful, and
believes that this mechanism is the most appropriate means to resolve
those few factual disputes that may arise. EPA also agrees that Class I
units should have the option of shutting down these units rather than
converting them.
Participation in the partnership program is purely voluntary, and
this is not a rule, but it does combine the advantages of
predictability and reduced penalties with incentives to move away from
the use of ozone depleting substances (ODS). Participating companies
will be asked to agree to phaseout use of the more hazardous Class I
ODS by July 15, 2003, reflecting the fact that use of these substances
is being rapidly phased out under existing rules. Bakeries that have
installed non-ODS systems by April 26, 2002, can avoid all penalties
under this agreement. Bakeries that install non-ODS systems after that
date but no later than July 15, 2004 (unless an extension is granted)
are limited to penalties of $10,000 per appliance. All other appliances
that do not install non-ODS systems must pay a per pound penalty for
any leaks that cross a high threshold, but again, this per pound
penalty can be avoided by conversion to non-ODS systems. Companies
already under national investigation for violations are not eligible to
participate in this program.

DATES: No more comments are being solicited. Key dates in the program
are listed below.

ADDRESSES: Comments and other notices that were or may be received may
be reviewed by the public at Bakery Partnership Program, the Docket
Clerk, Enforcement and Compliance Docket and Information Center (Mail
Code 2201A), Docket Number EC-2001-007, U.S. Environmental Protection
Agency, Ariel Rios Building, 1200 Pennsylvania Ave, NW, Washington, DC
20460. Other notices under this Bakery Partnership Program may be sent
electronically to: docket.oeca@epa.gov. Attach electronic notices as an
ASCii (text) file, and avoid the use of special characters and any form
of encryption. Be sure to include the docket number, EC-2001-007 on
your document. Notices may also be faxed to (202) 501-1011. Notices may
be mailed or delivered in person to Enforcement and Compliance Docket
and Information Center, U.S. Environmental Protection Agency, Ariel
Rios Building, Room 4033, 1200 Pennsylvania Ave, NW, Washington, DC
20460. Persons interested in reviewing this docket may do so by calling
(202) 564-2614 or (202) 564-2119, with the understanding that
confidential business information will not be released to the public.

FOR FURTHER INFORMATION CONTACT: Mr. Charles Garlow, Air Enforcement
Division (2242A), US EPA, 1200 Pennsylvania Ave NW., Washington, DC
20460, telephone 202-564-1088.

SUPPLEMENTARY INFORMATION:
Many industries, including most industrial bakeries, use ozone
depleting substances [ODS], such as CFCs and hydrochlorofluorocarbons
[HCFCs], to cool their products. Like other industrial sources, most
industrial bakeries have industrial process refrigeration appliances
that are subject to 40 CFR part 82, subpart F. The equipment that
produces the product contains CFCs or other ozone depleting substances
in jackets around the product. The equipment may sometimes leak these
coolants in sizeable quantities into the air, but not into the product.
If certain leak rates are exceeded, the company may be required to
retrofit or retire the equipment.
EPA has concluded two large industrial process refrigeration
enforcement cases, one of which involved a company with bakeries in
several states. In both cases, the companies voluntarily chose to
replace their industrial process refrigeration appliances with
equipment designed to prevent pollution. The ozone depleting coolant
was replaced by a cooling system that uses a secondary loop containing
a cooling solution, glycol, that is not an ozone depleting substance.
Although the primary loop of the refrigeration system may still contain
some ozone depleting substances, the quantity is greatly reduced, and
the ODS refrigerant is located where vibration and the potential for
leaks is greatly reduced. The EPA wants to encourage all companies with
industrial process refrigeration appliances that may be leaking to
consider a similar pollution prevention approach to ensuring their
compliance with the refrigerant recycling and emissions reduction
regulations found at 40 CFR part 82, subpart F.
EPA is inviting the baking industry to participate in a voluntary
program to address these potential violations. The

[[Page 5588]]

program offers an expedited way for companies to correct past
violations and prevent future ones, in return for a release from past
liabilities and reduced penalties. The largest trade association
representing bakeries has accepted this invitation on behalf of its
members. The total number of industrial bakeries is not exactly known
yet, but it is believed that there may be over 1000 bakeries in the
United States. Each bakery will likely have one or more industrial
process refrigeration appliances that are subject to the regulations,
such as mixers or chillers, at each bakery. Many of these industrial
process refrigeration appliances have already been converted to non-
ODS, pollution prevention equipment.
In the interests of promoting fast, efficient and widespread
emission reductions, and better compliance with the regulatory
structure, EPA intends to offer and enter into agreements with baking
companies providing that they:
Audit their facilities;
Identify problem areas;
Pay a greatly reduced penalty, and propose solutions that
will protect the environment; and,
Ensure greater compliance with the refrigerant recycling
and emissions reduction regulations found at 40 CFR part 82, subpart F.
EPA's proposal offers clear and consistent terms to reduce
uncertainty and eliminate the need for extended, individualized
negotiations. Presented here are the basic elements, illustrations and
a chronology of key steps that EPA and participants will be expected to
complete. The basic elements of the program are as follows:
Notice to EPA. Bakeries not already the subject of a
national enforcement investigation or action, and which had or have
industrial process refrigeration appliances containing 50 pounds or
more of ODS refrigerants, are eligible to participate. Companies
intending to participate should notify EPA by April 26, 2002, and as
soon thereafter as possible, but no later than April 30, 2002, submit a
signed Bakery Partnership Agreement to EPA. If some of the industrial
process refrigeration appliances have been converted to non-ODS systems
prior to April 26, 2002, a count of these appliances should also be
provided. If, during the audit, a more accurate tally is obtained, an
updated notice may be submitted at that time. Annex A contains a sample
notice of intent to participate, which can be updated with the number
of appliances to be audited by April 30, 2002. It can be sent by
electronic mail or postal mail, but electronic mail or e-mail is
preferred.
Annualized leak rate. For the purposes of this Partnership
Agreement, the annualized leak rate shall be calculated for every
instance in which refrigerant was added to the appliance. The leak rate
shall be calculated by the formula agreed upon by EPA in its
publication, Compliance Guidance for Industrial Process Refrigeration
Leak Repair Regulations under Section 608 of the Clean Air Act.
Audit. Participating companies must audit up to June 15,
2003, i.e., assess the compliance status of all their industrial
process refrigeration appliances and facilities. They must then report
to EPA a summary of their findings, by July 15, 2003. If a company
complies with the entire program, EPA intends to grant a release from
civil liability for the matters identified and corrected, so long as
reduced penalties are paid as described below. However, if violative
conduct is not identified and corrected, EPA is not granting any
release from civil liability for such problems. Good faith participants
in this Partnership Program will receive a release for the period of
time prior to September 30, 2000, even though this period may not have
been audited. For example, if a facility has installed non-ODS
technology on any of their appliances prior to the April 26, 2002 start
date for this Partnership Program, such an appliance need not be
audited, and a complete release from civil liabilities and penalties
will be granted for such appliances. By non-ODS systems, EPA means
systems that contain no ODS at all [e.g. HFC systems or ammonia
systems], or no ODS in the secondary loop, but may contain an ODS in
the primary loop. Typically, the ODS in the primary loop [compressor]
is a much smaller volume, and is not subjected to the vibration in the
process areas that may cause greater leaks. If the primary loop
contains less than 50 pounds of ODS, as is frequently the case, then
the appliance is exempt from the leak repair regulations. It is still
subject, however, to other requirements such as the ``no venting''
requirement of 40 CFR 82.154(a).
Class I appliances. All Class I appliances must be audited
and converted either to a non-ODS system, or to a system using an ODS
with an ozone depleting potential [ODP]
of less than 0.1, or shut down
(permanently taken out of service). Class I appliances are those
containing Class I controlled substances, listed in appendix A to
subpart A of 40 CFR part 82, and include CFC refrigerants (e.g., R-12).
Leaks from these Class I appliances are more damaging to the Earth's
ozone layer than an equivalent amount of leakage from Class II
appliances. The phaseout of the production of CFCs was completed as of
December 31, 1995. Since the availability of CFCs will continue to
decrease over time, EPA believes that this is a good time to switch to
a less ozone-depleting technology. EPA estimates that the vast majority
of appliances in this industry have already switched from using Class I
ODS to either Class II or non-ODS systems. Participating companies must
identify their Class I appliances and submit a plan for shutdown or
change/conversion to either the Class II ODS with an ODP of 0.1 or
less, such as R-22, or to a non-ODS system. The audits must be
completed and plans must be submitted to EPA by July 15, 2002. An
Administrative Order on Consent [AOC]
will incorporate a company pledge
to complete the audits of Class II appliances and to submit plans, if
needed, for those appliances by July 15, 2003 and pay penalties as
specified in the agreement. EPA expects the plans for Class I
appliances to be fully implemented by July 15, 2003, but may grant
additional time in exceptional circumstances pursuant to 40 CFR
82.156(i)(7).
Class II appliances. All Class II appliances must be
audited by June 15, 2003. Class II appliances are those containing
Class II controlled substances, listed in appendix B to subpart A of 40
CFR part 82 (including all HCFC refrigerants, such as R-22). If any of
these appliances are being changed/converted to non-ODS systems, then
plans to accomplish this must be submitted by July 15, 2003 as agreed
to in the July 2002 AOC.
CAFO. EPA will issue to participating companies, pursuant
to the authority of Section 113(d) of the Clean Air Act, Compliance
Agreement Final Orders [CAFOs]
that reflect the audit findings,
implementation plans and schedule of corrections, any reduced penalties
that must be paid, and a release from civil liability conditioned on
completion of the implementation plans and corrections. EPA will issue
CAFOs at the completion of all audits in July of 2003. If a company has
only Class I appliances, EPA will issue the CAFO in July of 2002.
Companies must also commit to compliance with all regulations.
Plan Implementation. By July 15, 2003 for Class I
appliances and by July 15, 2004 for Class II appliances, all plans for
equipment changes/conversions should be completely implemented, unless
extensions are granted pursuant to 40 CFR 82.156(i)(7).
Program Completion. By July 15, 2004 or such later date
when all

[[Page 5589]]

conversions are completed, the participating company will notify EPA
and EPA will respond with a confirmation letter acknowledging the
completion of the Bakery Partnership Program.

Penalties

Per appliance penalty. A penalty of $10,000 shall be paid
for each ODS containing appliance, regardless of whether violations are
identified or not, except that no penalties are due for any appliance
converted to a non-ODS system before April 26, 2002. No bakery facility
must pay more than $50,000 in these penalties. This penalty will be
paid with other penalties no later than 30 days after receipt of the
CAFO.
Per pound penalties. Additional ``per pound'' penalties
for all appliance leaks discovered during the audit, occurring after a
35% annualized leak rate, must be calculated on a 12-month basis,
beginning when the auditing period starts, i.e., September 30, 2000. At
the end of the 12-month period following a 35% annualized leak rate,
per pound penalty calculations cease, unless a subsequent 35%
annualized leak rate is discovered, in which case another 12 month
period of calculation begins. Per pound penalty calculations end June
15, 2003.
No per pound penalties for replacement with non-ODS
system. Switching to a non-ODS system is encouraged. If a participating
company agrees to replace an ODS system with a non-ODS system in an
appliance, no ``per pound'' penalties need be paid for that appliance.
If a company is facing high per pound penalties for a particular
appliance but has decided that it does not make technical or economic
sense for the company to convert that particular appliance to a non-ODS
system, it may instead substitute another appliance[s]
and still avoid
the per pound penalties for the first appliance. The first appliance,
however, must still be brought into full compliance. This ``bubbled
compliance'' concept would allow a company to substitute the first
appliance with another appliance or appliances that have 120% of the
full charge of the appliance that will not be changed/converted to a
non-ODS system. For example, if a 1000 pound appliance has very high
per pound penalties that the company wishes to avoid, it may avoid
those penalties either by converting this appliance to a non-ODS
system, or by converting one or more other ODS containing appliances
[that were not already required to convert to non-ODS systems]
that
have a total charge of at least 1200 pounds. This could be one other
appliance with a full charge of 1200 pounds, or two appliances of 600
pounds each, or some other combination of appliances that total at
least 1200 pounds of refrigerant. If the two 600 pound appliances in
this example had per pound penalties of their own, those penalties
would still be due, unless some other appliance or appliances in turn
were converted to non-ODS systems in their stead, at the 1.2 to 1
ratio, as described above.
Start-up period. No leaks will be counted as part of the
per pound calculation for the period 60 days after a new installation
or after an appliance is changed/converted to a non-ODS or lower than
0.1 ODP system, considered as a ``start up'' period.
Per pound amounts. Per pound penalties will be calculated
per appliance as follows: $20 per pound up to 500 pounds, $30 per pound
for 501-1000 pounds and $40 per pound for the pounds over 1000, during
each 12 month period after a 35% annualized leak rate is identified.
In summary, to participate in the Partnership Program, all sources
must achieve and maintain full compliance with the refrigerant
recycling and emissions reduction regulations found at 40 CFR part 82,
subpart F. In addition, appliances using Class I substances must be
audited and changed/converted. Appliances using Class II substances
must be audited. Owners of Class I and II appliances may elect to
convert to non-ODS systems to avoid paying fees for higher leaks. Each
company will sign an Administrative Order on Consent [AOC]
on or before
July 15, 2002 and sign a Consent Agreement Final Order [CAFO]
on or
before July 15, 2003, which will specify a conditional waiver of
liability. These are the main points of interest in this Partnership
Agreement. There are some other minor details that are mentioned in the
Partnership Agreement and the other Annexes, which should be self-
explanatory. Other approaches to achieving the objectives of this
program were considered by EPA and the industry representatives, but
this approach was chosen as being the best from the point of view of
administrative ease of implementation and environmental improvement.

Here Is an Example of What a Participating Company May Encounter
During Participation in This Partnership Agreement

If a company is eligible and wants to participate, it should send a
notice to EPA by April 26, 2002, identifying the company and its
facilities. If this company has five bakeries and five appliances in
each bakery, for a total of 25 appliances, seven of which have been
converted to a non-ODS system prior to April 26, 2002, then there will
be a $10,000 penalty per appliance for the 18 ODS containing
appliances. This company will, however, get a release from civil
liability for all 25 appliances for problems identified and corrected.
The company is best advised to pay particular attention to their Class
I appliances, if any, as audits must be conducted and a decision on
these appliances must be made by July 15, 2002. If there are four Class
I appliances, these should be audited first to determine what per pound
``penalties'' may be due for these appliances. If the per pound
penalties determined from this audit indicate that a large per pound
penalty may be due for several of these appliances, then this may be
persuasive in deciding to convert these appliances to a non-ODS system
in order to avoid the per pound penalties. If, instead, the company
chooses to convert some or all of the Class I appliances to a Class II
ODS refrigerant with an ODP of less than 0.1, rather than a non-ODS
system, then the per pound penalties will still be due and payable by
30 days after receipt of the CAFO, which should be shortly after July
2003. Auditing and calculation of per pound penalties should continue
through June 15, 2003 to ensure continued compliance and lowered
emissions.
By July 15, 2002, the company must prepare a plan and submit this
plan to EPA, indicating which of the appliances are the Class I
appliances, and what changes or conversions the company pledges to make
to them, with a schedule for the work anticipated. The company should
submit, along with the plans, the auditing summaries for the Class I
appliances [see the sample below]. EPA will incorporate the plans for
these four Class I appliances, along with the company's pledge to
continue auditing the other appliances and to prepare and submit plans
for them within a year in an Administrative Order on Consent [AOC],
which should be signed by the company and then by EPA. EPA will return
a copy of the signed AOC to the company.
For the other Class II appliances, a similar audit of compliance
should begin, covering the period from September 30, 2000 until June
15, 2003. Per pound penalties, if any, should be calculated for these
appliances. As with the Class I appliances, if the company wishes to
avoid paying these per pound penalties, it may do so by agreeing to
convert the Class II systems to non-ODS systems. The company should
make that decision and submit plans, if any, for

[[Page 5590]]

such conversions to EPA by July 15, 2003. These plans will be
incorporated in the CAFO. EPA expects that these plans will be
implemented by July 15, 2004, with the possibility of extensions if
additional time is needed.
When calculating per pound penalties, this company should look at
each appliance and calculate its per pound penalties, if any. If, for
example, the first Class I appliance had a 50% annualized leak rate in
October 2000 and thereafter in the next 12 months had small and large
leaks totaling 1500 pounds, then the per pound penalty for these 1500
pounds would be calculated as follows: $20 per pound for the first 500
pounds or $10,000; $30 per pound for pounds 501-1000 or $15,000; and
$40 per pound for pounds 1001-1500 or $20,000. Thus, the total for this
12-month block period would be $45,000 [$10,000 + $15,000 + $20,000].
If a large leak rate was discovered in December 2000, that does not
start another 12-month block period up to December 2001, as this is a
leak inside the October 2000-2001 12-month period. If after October
2001 this same appliance had another annualized leak greater than 35%,
for example, a 90% annualized leak rate, then leaks after that point
would be calculated as above and added to the $45,000 total. This
process should continue through June 15, 2003 and a total per pound
penalty should be calculated for this appliance, and for all other
appliances. The company then has the option of paying this per pound
penalty or avoiding it by submitting a plan for converting to a non-ODS
system. EPA hopes that this financial incentive will cause more
companies to choose conversion to non-ODS systems while still giving
the company the flexibility to decide which option is best for it.
On July 15, 2003, the company should submit audit summaries and
plans for any equipment changes/conversions that it intends to make to
the Class II appliances. It should also be prepared to pay any
penalties that may be due shortly after the CAFO, signed by both
parties, is received by the company. EPA will also prepare a CAFO with
the release from civil liability for all matters that the company has
identified as being a potential problem and corrected. This listing of
problems discovered by the audit can be included in the plan for
equipment changes/conversions or can be listed separately. It can
include matters such as technician certification, better recordkeeping
systems, equipment certifications, etc. Problem areas, or violations,
not so identified and corrected will not receive a release from
liability, so it is very important to identify all these problem areas
and correct all these problems. EPA may inspect and request information
to ensure that the audits are being conducted fully and properly.
By July 15, 2004, the company will have completed the equipment
changes/conversions, unless more time is needed, and corrected other
problems identified in the audit. The company will send a letter
certifying that all these matters have been attended to, and EPA will
reply accepting this certification and thanking the company for
participating. This is the end of the program for this company.

Key Dates

September 30, 2000

Begins period of compliance audit and monthly measurement of annual
leak rates from industrial process refrigeration appliances for all
partnership participants.
``Look-back'' period gives credit to companies that have taken
steps to improve leak management.

April 26, 2002

Notice of intent to participate in Partnership Program is due. Name
and address of facilities. All penalties waived for appliances that
have been converted to non-ODSs by April 26, 2002.
Program open to all companies not subject of national enforcement
investigation.

April 30, 2002

Companies must identify charging capacity and location of all
appliances using over 50 lbs of Class I or Class II ODS, and those
which have converted to use of non-ODS refrigerant in primary loop by
April 26, 2002.
Companies commit, by signing the Bakery Partnership Agreement, to
complete audit and submit implementation plans by July 15, 2002, to
convert Class I appliances to at least Class II, and to pay stipulated
penalties or switch to non-ODS refrigeration appliances by July 15,
2003 (unless extension granted).

July 15, 2002

EPA issues administrative order/information request on consent
[AOC]
to participating companies reflecting company's commitment to
complete audit by June 15, 2003 and submit implementation plans for
Class II appliances by July 15, 2003.
Companies that have switched all appliances to non-ODS by April 26,
2002 may receive compliance agreement/final order (CAFO) discharging
all liabilities for past violations without payment of penalty.

June 15, 2003

Audits are completed.

July 15, 2003

Bakeries submit audit results and final implementation plans.
Bakeries pay stipulated penalties for the 12 months following any
single month in which annualized leak rate exceeds 35%, but:

--Bakeries can avoid stipulated penalties if implementation plan
commits to replace leaking appliance with non-ODS system no later than
July 15, 2004 (unless program grants extension).
--Bakeries can ``bubble'' by substituting ODS conversion at another
appliance (must have charge 120% greater than leaking appliance).

All Class I ODS appliances must convert to at least Class II ODS
appliances by July 15, 2003, unless program grants extension.
EPA issues compliance agreement/final order [CAFO]
reflecting
conversion to Class II or non-ODS systems, and payment of stipulated
penalties.

July 15, 2004

Bakeries must complete conversion to non-ODS systems reflected in
implementation plans, unless program has granted an extension.

Key Definitions

Annualized leak rate--(pounds of refrigerant added/pounds of full
charge) x (365 days/# days since refrigerant last added) x 100%.
Appliance--industrial process refrigeration device containing 50
pounds or more of ODS refrigerants.
Class I--an ODS listed in appendix A to 40 CFR part 82, subpart A.
Class II--an ODS listed in appendix B to 40 CFR part 82, subpart A.
ODS--ozone depleting substance.
Facility--a discrete parcel of real property or such a parcel
improved by Participating Company's building, structure, factory,
plant, premises, or other thing, related to Participating Company's
wholesale baking/bakery business, and containing at least one appliance
as defined in this agreement.
Non-ODS system--systems that contain no ODS at all [e.g. HFC
systems or ammonia systems]
or no ODS in the secondary loop, but may
contain an ODS in the primary loop.

Additional Sources of General Information

To find out more about compliance with Title VI of the Clean Air
Act,

[[Page 5591]]

access the EPA's web site at www.epa.gov/ozone. The EPA and the
Chemical Manufacturer's Association (CMA) have developed a guidance
document entitled Compliance Guidance For Industrial Process
Refrigeration Leak Repair Regulations Under Section 608 of the Clean
Air Act [see http://www.epa.gov/ozone/title6/608/compguid/
compguid.html]
that provides greater detail than the discussion on the
EPA web site. The guidance document is intended for those persons who
are responsible for complying with the requirements. The guidance
should not be used to replace the actual regulations published in the
Federal Register on August 8, 1995 (60 FR 40420) [see http://
www.epa.gov/spdpublc/title6/608/leakfrm.txt]
; however, it can act as a
supplement to explain the requirements. Reliance on this guidance alone
will likely not result in compliance. Another useful web site is one
pertaining to general leak repair: http://www.epa.gov/ozone/title6/608/
leak.html. EPA has also made available a sample inspector's checklist
to the trade association, which is available online at http://
www.epa.gov/ozone/title6/608/compguid/compguid.html or http://
www.epa.gov/oeca/ore/aed/bakery/index.html or by contacting the Ozone
Hotline at 800-296-1996.

Conclusion

EPA believes that the above-described program is the best, most
cost-effective way to achieve immediate environmental improvement and
achieve significant progress in resolving the myriad compliance
concerns that may be present in this industry. Its terms, conditions
and protections will be available only to those companies that are
eligible, elect to participate, and abide by the conditions of the
program.

Dated: January 30, 2002.
Eric Schaeffer,
Director, Office of Regulatory Enforcement, Office of Enforcement and
Compliance Assurance.
Attachments
Partnership Agreement with Annexes: Sample Identification of
Facilities due April 26, 2002; Sample AOC; Sample CAFO.

Ozone-Depleting Substance Emission Reduction Bakery Partnership
Agreement

The United States Environmental Protection Agency (``EPA'') and
__________ (``Participating Company''), the parties to this
agreement, desire to enter into and be bound by the terms of this
Ozone-Depleting Substance (ODS) Emission Reduction Bakery
Partnership Agreement (``Agreement'').

Introduction

The Agreement specifies an audit, self-disclosure and corrective
action program, which shall result in a release from liability for
the conditions that are identified and corrected. This Agreement
incorporates the features of the Bakery Partnership Program as
detailed in the Federal Register notice on this topic, published
February 6, 2002.

Applicability

1. This Partnership Agreement shall apply to and be binding upon
both EPA and Participating Company, including but not limited to its
officers, directors, agents, servants, employees, successors, and
assigns. Participating Company shall give notice of this Agreement
to any successor in interest prior to the transfer of any ownership
interest in any machinery subject to Title VI, Clean Air Act (42
U.S.C. 7671 et. seq.) (the ``Act'') and its incorporating
regulations, 40 CFR Part 82 (``Regulations''). EPA, in cooperation
with baking industry trade officials and trade journals, notified
the baking industry of this program.
2. In order for a Participating Company to be eligible to
participate in this Agreement, the Participating Company must be a
wholesale bakery not currently under corporate-wide investigation by
EPA for a violation of Title VI of the Clean Air Act.

Definitions

3. ``Participating Company'' means any eligible company and its
wholly- or partially-owned subsidiaries, including all their
bakeries, that agree to abide by the conditions of this Agreement.
4. ``Corporate-wide investigation'' means an investigation that
requires information disclosure from either (1) five or more
facilities owned by a company that seeks to be a Participating
Company or (2) all facilities that are subject to Title VI and owned
by a company that seeks to be a Participating Company.
5. ``Non-ODS system'' means pollution prevention technology
recommended to and agreed upon by EPA that supplants standard ODS
technology, including but not limited to glycol, chilled water, or
other non-ODS coolant in a secondary loop system or totally non-ODS
systems, such as HFCs or ammonia.
6. ``Facility'' means a discrete parcel of real property or such
a parcel improved by Participating Company's building, structure,
factory, plant, premises, or other thing, related to Participating
Company's baking/bakery business, containing at least one appliance.
7. ``Retrofit'' means to install new or modified parts in an
appliance that were not provided as a part of the originally
manufactured equipment. The retrofitted appliance must use a
refrigerant with an ozone depleting potential that is lower than
that which was used before the retrofit.
8. ``Retire'' means to withdraw an appliance from service and
replace it with an appliance containing a refrigerant with an ozone
depleting potential that is lower than that which was used in the
retired appliance.
9. ``Appliance'' means an industrial process refrigeration
appliance containing 50 pounds of more of ODS refrigerant that is
housed within the facility.
10. ``ODS'' means Ozone Depleting Substance used as a
refrigerant.

Initial Notice and Submission of Partnership Agreement

11. Participating Company represents that:
a. It notified EPA of Participating Company's intent to
participate in the Ozone Depleting Substance Emission Reduction
Bakery Partnership Program by 5:00 PM Eastern Time, April 26, 2002,
by identifying the facilities owned by the Participating Company.
b. It submitted this executed Partnership Agreement by April 30,
2002. Annex A, submitted with this Agreement, or updated shortly
thereafter, is a true, accurate, and complete identification of:
i. Name of the Participating Company; and
ii. Name, street address, ZIP code, and city of each facility at
which the Participating Company believes any subject appliance is
presently located; and
iii. State in which the facility is located; and
iv. EPA region in which the facility is located; and
v. The number or best estimate of the number of appliances with
more than 50 pounds of refrigerant when fully charged, as determined
by calculation, weight, manufacturer supplied information, or an
established range as described in 40 CFR 82.152; and
vi. The number or best estimate of the number of non-ODS
industrial process refrigeration appliances.
c. Participating Company certifies that it is eligible to be a
participating company, that is, it meets the qualifications
specified in paragraphs 2 and 3.
d. Participating Company agrees to audit all its facilities as
specified below and disclose the summary results of such audits to
EPA and correct any and all violations in accordance with this
Agreement.
e. Participating Company agrees to toll the applicable statute
of limitations during the life of the Agreement as it may apply to
the violations that may have occurred within the time period five
years prior to the signing of this Agreement.
f. In the event that ownership of a facility subject to this
Agreement is (or was) transferred during the period covered by the
Agreement, the Agreement shall apply to the former owner for the
period during which the facility was owned by the former owner,
provided all applicable terms and conditions are otherwise
satisfied. The Agreement shall also apply prospectively, according
to its terms, to the party to whom the facility is transferred.

Audit Conduct, Report and Plans

12. Participating Company agrees to assist EPA with EPA's review
of company's audit results. Such assistance may take the form of
responding to telephone calls for clarification and other reasonable
informal inquiries, without the need for formal information demands.
13. Participating Company agrees to identify all facilities with
applicable industrial process refrigeration appliances.
14. Participating Company agrees to undertake a reasonable
investigation, and to

[[Page 5592]]

the extent it can reasonably assemble such information, report to
EPA for each applicable appliance, dates of service, beginning
September 30, 2000 and continuing until June 15, 2003; pounds of
refrigerant added; days since the last addition of refrigerant;
percent annualized leak rate; and any associated comments by using a
spreadsheet such as the one contained in Annex C. To the extent that
a change in system components, such as a new compressor, may have
altered the full charge, or where other special conditions arise,
these conditions should be noted in the comments section.
15. Participating Company agrees to complete audits of all
industrial process refrigeration appliances at each facility, except
for those appliances converted to a non-ODS system prior to April
26, 2002, and notify EPA with a summary of the audit results as
specified in the preceding paragraph and corrective actions planned,
as necessary, by July 15, 2002 for Class I appliances and by July
15, 2003 for Class II appliances. Participating Company may, at its
sole discretion, include commercial and comfort cooling appliances
subject to 40 CFR 82.156(i) in the audit for compliance and receive
a release from liability for problems identified and corrected.
16. Participating Company agrees to calculate the total per
appliance and per pound penalties, if any, due and owing by July 15,
2003 in accordance with the method outlined in the Federal Register
final announcement of the Bakery Partnership Program, and to submit
this calculation to EPA.
17. Participating Company agrees to provide, in writing, by July
15, 2003, the steps that Participating Company will take to achieve
continuous compliance with the requirements of 40 CFR Part 82. Such
measures may include, but are not limited to, such things as
training, record keeping, replacement, repair, installation of non-
ODS systems. See Annex E for additional, required Compliance Plan
elements. Participating Company agrees to implement this Plan.

Audit Compliance Program

18. For all Class I appliances Participating Company will
complete an audit and submit plans for the retrofit of these
appliances with an ODS having an ozone depleting potential of 0.1 or
less or retirement/replacement with a non-ODS system. Plans for
these Class I appliances must be submitted by July 15, 2002, with a
schedule for the completion of these activities within one year,
unless additional time is allowed pursuant to 40 CFR 82.156(i)(7).
These plans will be incorporated in an Administrative Order on
Consent [AOC]. See Annex B.
19. For Class II appliances, Participating Company will sign an
Administrative Order on Consent agreeing to develop, within the next
twelve months, plans, where needed, for the replacement of these
Class II appliances with non-ODS systems.
20. If any appliance within a facility owned by Participating
Company contains a refrigerant that is not an EPA-approved
refrigerant for that particular end-use (such as R-409A use in an
industrial process refrigeration appliance) or is not in compliance
with use restrictions of an approved refrigerant, Participating
Company must take immediate steps to properly recover said
refrigerant from the appliance (in accordance with the Regulations)
and replace it with an approved refrigerant, in accordance with any
use restrictions. Recovered refrigerant must be sent to an EPA-
certified refrigerant reclaimer for ultimate reclamation or
disposal.

Certification of Complete Compliance

21. Participating Company shall sign and submit to EPA a
Certification of Complete Compliance (Annex D) when all plans,
retrofits and other steps necessary to ensure continuous compliance
have been finalized.

Employee Participation

22. Participating Company shall provide a procedure for its
employees to report violations or potential problems to the auditing
team. Participating Company agrees to ensure that employees who
disclose violations or potential violations to the auditing team
under the Act and the Regulations are not subject to adverse job
actions (including without limitation disciplinary action, denial of
promotion, bonuses or pay) on the basis of such employee disclosing
such violations or potential violations in accordance with company
policies.

Participating Company Records Retention

23. Participating Company agrees to keep and retain on site or
readily available any and all records from April 26, 1999 until two
years after the conclusion of all obligations under this Agreement.
Records for appliances that have been converted to non-ODS systems
need not be retained for more than three years prior to the
completion of the conversion to the non-ODS system. Such records
shall be kept by both Participating Company and its employees,
agents and any contractors working for Participating Company. All
records are required to be retained for this period of time to
facilitate review by EPA, should EPA choose to conduct such a
review. Participating Company agrees to notify all employees, agents
and contractors that any such record is not to be destroyed.

Penalties

24. A ``per applicance'' penalty of $10,000, with a cap of
$50,000 per facility, shall be due and owing for each industrial
process refrigeration appliance that does not qualify as a non-ODS
system by April 26, 2002. A ``per pound'' penalty, as specified in
the above-referenced Federal Register notice, shall be calculated
for each appliance, unless equipment conversions to non-ODS systems
eliminate this penalty.
25. The total penalty shall be paid within 30 days of receipt of
the signed CAFO which should be shortly after July 2003.

Forbearance

26. EPA agrees to forbear on Part 82 civil enforcement activity
against Participating Company during the course of this Agreement,
provided that Participating Company is in compliance with this
Agreement. EPA may, however, inspect and request information to
ensure that the audits are being conducted fully and properly. EPA
does not forbear or relinquish any right to access and inspection
under this agreement.
27. Participating Company understands that any violations
discovered by EPA subsequent to the completion of the audit or
compliance efforts and/or the expiration of this Agreement are
subject to standard regulatory enforcement. That is, nothing in this
Agreement, other than the release from civil liability for problems/
violations disclosed and corrected, is to the derogation of EPA's
full enforcement and compliance authority at the conclusion of the
Partnership.
28. If EPA believes that the Participating Company has
miscategorized or mischaracterized any problem/violation under this
Agreement, the Dispute Resolution section of this Agreement shall be
utilized.

Release From Liability/CAFO

29. Participating Company understands and acknowledges that
participation in the Program will not absolve Participating Company
or its employees from any criminal liability. In considering whether
to refer a matter for criminal prosecution, EPA will be guided by
its Self-Audit Policy. In general, it is EPA's policy to refer
matters for criminal prosecution only in cases involving a high
degree of harm and/or misconduct.
30. EPA agrees to execute an administrative Consent Agreement
Final Order conditionally releasing Participating Company from civil
liability for any and all violations or potential violations that
have been self-disclosed and corrected, on condition that
Participating Company pays penalties that may be due and completes
the plans with compliance schedules that have been submitted and
agreed upon by the Participating Company and the EPA. A complete
release from civil liability will be granted for any appliance that
is converted to a non-ODS system. Good faith participants in this
Partnership Program will receive a civil release for the period of
time prior to September 30, 2000, even though this period may not be
audited.
31. EPA and Participating Company will execute an Administrative
Compliance Order on Consent and CAFO confirming the plans and
penalties agreed upon by the parties.

Publicity

32. Participating Company may publicize that it is partnering
with the EPA in an effort to reduce ODS emissions.
33. Upon request by the Participating Company, EPA will
recognize and acknowledge Participating Company's participation and
assistance under the Program.

Access and Inspection

34. Without prior notice, any authorized representative of EPA
(including a designated contractor), upon presentation of
credentials at any of Participating Company's facilities, may enter
such location(s) at reasonable times to determine compliance with
this Agreement. Access under this clause is subject to the normal
health and safety and

[[Page 5593]]

confidentiality requirements in effect at such facilities.

Dispute Resolution

35. Should the need arise, Participating Company agrees to first
engage in informal dispute resolution with EPA's Air Enforcement
Division/Regional staff concerning any determination made by EPA in
its review of the program. Such informal dispute resolution will
consist of negotiations between Participating Company and the
designated attorney(s) and/or Division Director of the Air
Enforcement Division at the address in paragraph 42. To exercise
informal dispute resolution, Participating Company shall send a
written notice to EPA outlining the nature of the dispute or
disagreement and request informal negotiations to resolve the
dispute. EPA will respond to such requests within 15 days. Such
period of informal negotiations shall not extend beyond thirty (30)
days from the date when EPA responds, unless the parties agree
otherwise in writing. Both parties will attempt to achieve a
solution acceptable to all.
36. Should the Participating Company be dissatisfied with the
results of the informal dispute resolution, the Participating
Company may request that the dispute be negotiated with the
assistance of a non-binding mediator, by notifying in writing the
Director of the Air Enforcement Division and other members of the
informal negotiations team. EPA will respond to such requests within
15 days. The costs of such mediation will be shared equally by the
Participating Company and EPA. EPA may reject the request for
mediation if costs are deemed unreasonable. A convenor will assist
in the selection of a mutually acceptable neutral mediator.
Mediation shall not extend beyond thirty (30) days from the date
when the mediator first meets with the parties, unless the parties
agree otherwise in writing.
37. It is anticipated that any disputes will be resolved by the
process of negotiation outlined above. Participating Company agrees
that resolution within EPA is the sole and final dispute resolution
mechanism.

Effective Date

38. This Agreement shall become effective upon the date signed
by the parties to this agreement (below).

Miscellaneous

39. Nothing in this Agreement will relieve the Participating
Company of its obligation to comply with any other Clean Air Act
provision, other environmental law, or applicable environmental
regulations, either state or Federal.
40. Participating Company agrees to accept service from EPA by
mail with respect to all matters relating to this Agreement at the
address listed below (if different from the one listed in Annex A).

.----------------------------------------------------------------------

41. EPA agrees to accept service from Participating Company by
mail with respect to all matters relating to this Agreement at the
address listed below.
Electronically preferred: docket.oeca@epa.gov or Title VI
Coordinator, Attention: Charlie Garlow, US EPA Air Enforcement
Division, 1200 Pennsylvania Ave NW., Mail Code 2242A, Washington, DC
20460 202-564-1088.

Integration

42. This Agreement, and the Annexes and Federal Register notice
incorporated by reference in this Agreement, represents the final
form of the contract between EPA and Participating Company. No oral
modifications to the Agreement will be binding upon either party.

Signatures

43. EPA and the Participating Company represent that they have
examined this Agreement and the attached and incorporated Annexes
and Federal Register notice and agree to the terms by signing and
dating below.
44. Each person signing this Agreement represents that he or she
is authorized to legally bind the party on whose behalf he or she is
signing.
45. Agreed To:
By:--------------------------------------------------------------------
[Participating Company]

Date:------------------------------------------------------------------

By:--------------------------------------------------------------------
US Environmental Protection Agency

Date:------------------------------------------------------------------

Annex A Sample Identification of All Facilities Owned by Participating
Company

Note: EPA's Regions are shown on a map at http://www.epa.gov/
epahome/aboutepa.htm.

----------------------------------------------------------------------------------------------------------------
No. of ODS-containing
Participating company/facility name Location, mailing State Region and non-ODS
address, city, zip appliances, if known
----------------------------------------------------------------------------------------------------------------
Marvy Bread/Plant 4................ 123 Main St, Lodi CA............... 9 15 ODS, 5 non-ODS.
94588.
----------------------------------------------------------------------------------------------------------------

Annex B Sample Administrative Order on Consent

United States Environmental Protection Agency

In the Matter of: [Participating Company]
Respondent. Bakery
Partnership Program, Agreement Number________, Findings and Order

Pursuant to Sections 113(a)(3) and 114 of the Clean Air Act
(``CAA''), consistent with the Bakery Partnership Program identified
above and entered into between the United States Environmental
Protection Agency (``EPA'') and Respondent, and based upon available
information, EPA hereby makes and issues the following Findings and
Order, with the expressed consent of Respondent:

Findings

1. Respondent is a Participating Company under the above-
identified Bakery Partnership Program.
2. EPA promulgated regulations for the control of Ozone
Depleting Substances, appearing in 40 CFR Part 82, Subpart F.
3. Respondent owns or operates certain affected equipment under
Part 82 that contains or contained Ozone Depleting Substances, at
facilities identified in Attachment A attached hereto.

Order

4. Respondent shall retrofit or replace the referenced equipment
as specified in Attachment A by the date(s) there indicated. Where
additional time may be required to complete these actions,
application to EPA shall be timely made pursuant to 40 CFR
82.156(i)(7).
5. Within 12 months of this Order, Respondent shall prepare and
submit to EPA plans for the conversion of Class II appliances to
non-ODS systems, for the appliances identified in Attachment B,
attached hereto.
6. Consistent with the Bakery Partnership Agreement entered into
between EPA and [the Participating Company], per appliance and per
pound penalties shall be calculated and submitted to EPA by July 15,
2003.
7. Pursuant to Section 113(a) of the CAA, failure to comply with
this Order may lead to a civil action to obtain compliance or an
action for penalties.

Issued this ______ day of ______, 2003

.----------------------------------------------------------------------
U.S. Environmental Protection Agency

8. [Participating Company]
consents to the issuance of this
Order and further agrees not to contest EPA's authority to issue
this Order.

Signed this ______ day of ______, 2003

.----------------------------------------------------------------------
For [Participating Company]

Annex C Leak Rate Calculation Sheet for each Appliance Sample

Beanie Bread/Plant 4. The Appliance Serial Number 456789
containing 350 pounds full charge of R-22.
The leak rate is calculated by dividing the number of pounds
added by the full charge [here 350 pounds]. Then multiply that
number by 365 days. Then divide that number by days since the last
add. Multiply that number by 100 to express it as a percentage, if
over 35%.

[[Page 5594]]

----------------------------------------------------------------------------------------------------------------
Percent of
Date Lbs added Days since last add leak rate Comments
----------------------------------------------------------------------------------------------------------------
10/28/00........................... 112 base................. ........... ..........................
2/20/01............................ 60 115.................. 54 ..........................
2/27/01............................ 14 7.................... ........... ..........................
5/31/01............................ 30 93................... 33 ..........................
6/18/01............................ 166 18................... 961 ..........................
12/3/01............................ 100 168.................. 62 ..........................
Total pounds added since
high leak rate = 310
pounds x $20 per pound
= $6200, the ``per
pound'' penalty.
----------------------------------------------------------------------------------------------------------------

Annex D Certification of Completion and Compliance

I certify, based on personal inspection, that correction of the
violations/problems identified as a part of the Bakery Partnership
Agreement with the United States Environmental Protection Agency,
dated________is complete.
I certify that __________, Participating Company, has corrected
all violations, and training, recordkeeping, equipment replacement,
and all other necessary and prudent measures have been taken to
ensure complete compliance with Title VI, Clean Air Act (42 U.S.C.
7671 et seq.).
I certify that the following summary of the actions taken are
true and complete:

.----------------------------------------------------------------------

I certify that I am an officer of __________, Participating
Company, and am duly authorized to sign and complete this
Certification of Compliance on behalf of Participating Company.

.----------------------------------------------------------------------
Name (print)

.----------------------------------------------------------------------
Signature

.----------------------------------------------------------------------
Date

Annex E Compliance Plan Required Elements--For Appliances Containing
Greater Than 50 Pounds of a Class I or Class II Substance

A. Each Participating Company will have at least one employee in
each facility responsible for ensuring compliance with the
refrigerant Compliance Plan.
B. Only technicians certified in accordance with 40 CFR Part 82
will perform refrigerant-related service on refrigerant containing
appliances.
C. Technicians will have available for use and use, as required,
recycle/recovery equipment certified pursuant to 40 CFR 82.156.
D. Repairs to refrigerant-leaking appliances will be conducted
within the time frames outline in 40 CFR 82.156.
E. Initial verification tests on industrial process equipment
will be conducted following any refrigerant-related repairs.
F. Follow-up verification tests on industrial process equipment
will be conducted within thirty days of any refrigerant-related
repairs.
G. Leak rates will be calculated (a) when refrigerant is added
to appliances containing greater than 50 pounds of a Class I or
Class II substance and (b) when the follow-up verification test
reveals an unsuccessful repair.
H. Procedures documenting what additional action will be taken
as a result of a failed repair will be written.
I. Each Participating Company will maintain the following
records in a single location at each facility:
1. An inventory of appliances containing greater than 50 pounds
of a Class I or Class II substance and their refrigerant capacities.
2. A unique identification for each appliance containing greater
than 50 pounds of a Class I or Class II substance.
3. Date the refrigerant-related service is performed on each
appliance containing greater than 50 pounds of a Class I or Class II
substance.
4. Type of refrigerant-related service performed on each
appliance containing greater than 50 pounds of a Class I or Class II
substance.
5. Amount and type of refrigerant added to each appliance
containing greater than 50 pounds of a Class I or Class II
substance.
6. Name of the technician performing work on each appliance
containing greater than 50 pounds of a Class I or Class II
substance.
7. A copy of the technician certification card for all
technicians performing work.
8. Refrigerant purchase records.
9. A copy of the recycle/recovery equipment owner's
certification.
J. Each participant will provide refresher training on the
refrigerant compliance program annually for facility personnel
responsible for oversight of maintenance and service of refrigerant-
containing appliances.

Sample CAFO

United States Environmental Protection Agency, Washington, DC

In the Matter of: [Participating Company]
Respondent. Docket No.
CAA-HQ-2003-XXX, Consent Agreement and Final Order

I. Preliminary Statement

1. The United States Environmental Protection Agency (``EPA'')
and [Participating Company]
have entered into a voluntary Bakery
Partnership Agreement, pursuant to which an audit of compliance
status and self-correction program has been undertaken. It was
further agreed by the parties that certain civil penalties would be
paid pursuant to the administrative authority of Section 113(d) of
the Clean Air Act (``CAA''), 42 U.S.C. 7413(d).
2. This Consent Agreement and Final Order [CAFO]
is issued
pursuant to the authority of 40 CFR 22.13(b), 22.18(b)(2) and (3),
which pertain to the quick resolution and settlement of matters
without the filing of a complaint.
3. This Consent Agreement and Final Order resolves the liability
for violations that may have been discovered pursuant to an audit of
the Respondent's facilities regarding compliance with Title VI of
the Clean Air Act, Stratospheric Ozone Protection, and more
particularly 40 CFR Part 82, Subpart F, relating to recycling and
emissions reductions from appliances containing ozone depleting
substances.

II. Consent Agreement

4. As a result of the voluntary audit conducted pursuant to the
Bakery Partnership Agreement, EPA and Respondent have agreed to
resolve this matter by executing this Consent Agreement.
5. For the purpose of this proceeding, Respondent does not
contest the jurisdiction of this tribunal, consents to the
assessment of a civil penalty as specified below, and consents to
implement the corrective action Plans and Other Conditions, attached
hereto.
6. The execution of this Consent Agreement is not an admission
of liability by Respondent, and Respondent neither admits nor denies
any specific factual allegations contained herein. EPA alleges that
one or more of the conditions contained in the attached Summary of
Audit Findings constitutes a violation of 40 CFR part 82.
7. As a complete settlement for all conditions specified in the
attached Summary of Audit Findings, Respondent hereby agrees to pay
to the United States a civil penalty as specified in the attached
Penalty Calculation. EPA agrees to conditionally release Respondent
from civil liability for the conditions, and only those conditions,
identified in the attached Summary of Audit Findings, except for
those appliances that are identified as having been or being
converted to non-ozone depleting substances, for which a complete
release of civil liability is granted. This release is conditioned
upon the satisfactory completion of the Plans and Other Conditions
attached hereto, and the timely payment of the civil penalty. Good
faith participants in this Partnership Program will receive a
release for the period of time prior to September 30, 2000, even
though this period may not be audited. The parties agree that the
attached Summary of Audit Findings, Penalty Calculation and Plans
and Other Conditions are incorporated herein by reference and made a
part of this CAFO.

[[Page 5595]]

8. Respondent waives its right to request an adjudicatory
hearing on any issue addressed in this Consent Agreement.
9. Respondent and EPA represent that they are duly authorized to
execute this Consent Agreement and that the parties signing this
Agreement on their behalf are duly authorized to bind Respondent and
EPA to the terms of this Consent Agreement.
10. Respondent agrees not to claim or attempt to claim a federal
income tax deduction or credit covering all or any part of the civil
penalty paid to the United States Treasurer.
11. Respondent and EPA stipulate to issuance of the proposed
Final Order below.
[Participating Company], Respondent

By---------------------------------------------------------------------

(Print name)-----------------------------------------------------------

Title:-----------------------------------------------------------------

Dated:-----------------------------------------------------------------

U.S. Environmental Protection Agency, Complainant

By---------------------------------------------------------------------

Dated:-----------------------------------------------------------------
Headquarters EPA

III. Final Order

It is hereby ordered and adjudged as follows:
12. Respondent shall comply with all terms of the Consent
Agreement.
13. For the reasons set forth above, Respondent is hereby
assessed a penalty in the amount of $________.
14. Respondent shall pay the assessed penalty no later than
thirty (30) calendar days from the date a conformed copy of this
Consent Agreement and Final Order (``CAFO'') is received by
Respondent.
15. All payments under this CAFO shall be made by certified
check or money order, payable to the United States Treasurer, mailed
to: U.S. Environmental Protection Agency, (Washington D.C. Hearing
Clerk), P.O. Box 360277, Pittsburgh, Pennsylvania 15251-6277.
A transmittal letter, indicating Respondent's name, complete
address, and this case docket number must accompany the payment.
Respondent shall file a copy of the check and of the transmittal
letter with the Headquarters Hearing Clerk.
16. Failure to pay the penalty assessed under this CAFO may
subject Respondent to a civil action pursuant to Section 113(d)(5)
of the CAA, 42 U.S.C. 7413(d)(5), to collect any unpaid portion of
the assessed penalty, together with interest, handling charges,
enforcement expenses, including attorneys fees, and nonpayment
penalties. In any such collection action, the validity, amount, and
appropriateness of this order or the penalty assessed hereunder are
not subject to review.
17. Pursuant to 42 U.S.C. 7413(d)(5) and 31 U.S.C. 3717,
Respondent shall pay the following amounts:
a. Interest. Any unpaid portion of the assessed penalty shall
bear interest at the rate established pursuant to 26 U.S.C.
6621(a)(2) from the date a conformed copy of this CAFO is received
by Respondent; provided, however, that no interest shall be payable
on any portion of the assessed penalty that is paid within 30 days
of the date a copy of this CAFO is received by Respondent.
b. Attorney Fees, Collection Costs, Nonpayment Penalty. Pursuant
to 42 U.S.C. 7413(d)(5), should Respondent fail to pay on a timely
basis the amount of the assessed penalty, Respondent shall be
required to pay, in addition to such penalty and interest, the
United States' enforcement expenses, including but not limited to
attorney fees and costs incurred by the United States for collection
proceedings, and a quarterly nonpayment penalty for each quarter
during which such failure to pay persists. Such nonpayment penalty
shall be ten percent of the aggregate amount of Respondent's
outstanding penalties and nonpayment penalties accrued from the
beginning of such quarter.
18. This document constitutes an ``enforcement response'' as
that term is used in the CAA Penalty Policy for the purposes of
determining Respondent's ``full compliance history'' as provided in
Section 113(e) of the CAA, 42 U.S.C. 7413(e).
19. Each party shall bear its own costs, fees, and disbursements
in this action.
20. The provisions of this CAFO shall be binding on Respondent,
its officers, directors, employees, agents, servants, authorized
representatives, successors and assigns.
It is so ordered.
Dated this ______ day of ______, 1999.

.----------------------------------------------------------------------
Environmental Appeals Judge
Environmental Appeals Board
U.S. Environmental Protection Agency

Certificate of Service

I certify that the forgoing Consent Agreement and Final Order
was sent to the following persons, in the manner specified, on the
date below:
Original hand-delivered: Eurika Durr, EAB Hearing Clerk, U.S.
Environmental Protection Agency, Mail Code 1103B, 607 14th Street NW
Suite 500, Washington, D.C. 20005.
Copy by certified mail, return receipt requested:

________, Registered Agent for
[Participating Company]
[Participating Company's address]

Dated:-----------------------------------------------------------------

.----------------------------------------------------------------------
U.S. EPA

Sample Summary of Findings

Annex C Leak Rate Calculation Sheet for each Appliance Sample

Marvy Bread/Plant 4. The Appliance Serial Number 456789
containing 350 pounds full charge of R-22.
The leak rate is calculated by dividing the number of pounds
added by the full charge [here 350 pounds]. Then multiply that
number by 365 days. Then divide that number by days since the last
add. Multiply that number by 100 to express it as a percentage, if
over 35%.

Technician Certifications for two technicians, Joe Jones and Sam
Spade, at Plant 4 were missing. Those certifications are now on
file.
Service records before September 30, 2000 were missing.

Sample Penalty Calculation

Marvy Bread Plant 4 The Appliance Serial Number 456789
containing 350 pounds full charge of R-22.
Per pound penalty: $6,200--waived as this machine is being
converted to non-ODS.
Per appliance penalty: 10,000.
Total Penalty: $10,000.

Sample Plans and Other Conditions

Beanie Bread agrees to convert the Bun Mixer at Plant 4, Serial
Number 45678, to a non-ODS system.
Completion date: July 30, 2004.
Beanie Bread agrees to develop a computer based recordkeeping
program to ensure that complete and accurate records are retained as
required.
Completion date: September 30, 2003.

[FR Doc. 02-2837 Filed 2-5-02; 8:45 am]
BILLING CODE 6560-50-P

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Equipment Containing Ozone Depleting Substances at Industrial Bakeries

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