[Federal Register Volume 89, Number 198 (Friday, October 11, 2024)]
[Rules and Regulations]
[Pages 82682-82872]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-21967]
[[Page 82681]]
Vol. 89
Friday,
No. 198
October 11, 2024
Part II
Environmental Protection Agency
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40 CFR Parts 84, 261, 262, et al.
Phasedown of Hydrofluorocarbons: Management of Certain
Hydrofluorocarbons and Substitutes Under the American Innovation and
Manufacturing Act of 2020; Final Rule
Federal Register / Vol. 89, No. 198 / Friday, October 11, 2024 /
Rules and Regulations
[[Page 82682]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 84, 261, 262, 266, 270, and 271
[EPA-HQ-OAR-2022-0606; FRL-10105-02-OAR]
RIN 2060-AV84
Phasedown of Hydrofluorocarbons: Management of Certain
Hydrofluorocarbons and Substitutes Under the American Innovation and
Manufacturing Act of 2020
AGENCY: Environmental Protection Agency (EPA)
ACTION: Final rule.
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SUMMARY: The U.S. Environmental Protection Agency is issuing
regulations to implement certain provisions of the American Innovation
and Manufacturing Act of 2020. This rulemaking establishes an emissions
reduction and reclamation program for the management of
hydrofluorocarbons that includes requirements for leak repair and
installation and use of automatic leak detection systems for certain
equipment using refrigerants containing hydrofluorocarbons and certain
substitutes; the servicing and/or repair of certain refrigerant-
containing equipment to be done with reclaimed hydrofluorocarbons; the
initial installation and servicing and/or repair of fire suppression
equipment to be done with recycled hydrofluorocarbons, technician
training, and recycling of hydrofluorocarbons prior to the disposal of
fire suppression equipment containing hydrofluorocarbons; removal of
hydrofluorocarbons from disposable cylinders before discarding them;
and certain recordkeeping, reporting, and labeling requirements. In
addition, EPA is establishing alternative Resource Conservation and
Recovery Act standards for certain ignitable spent refrigerants being
recycled for reuse.
DATES: This rule is effective December 10, 2024.
FOR FURTHER INFORMATION CONTACT: Christian Wisniewski, Stratospheric
Protection Division, Office of Atmospheric Protection (Mail Code
6205A), Environmental Protection Agency, 1200 Pennsylvania Ave. NW,
Washington, DC 20460; telephone number: 202-564-0417; email address:
[email protected]. You may also visit EPA's website at
https://www.epa.gov/climate-hfcs-reduction for further information.
For information related to the alternative standards for certain
ignitable spent refrigerants under the Resource Conservation and
Recovery Act (RCRA), please contact Tracy Atagi, Materials Recovery and
Waste Management Division, Office of Resource Conservation and Recovery
(5304T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW,
Washington, DC 20460; telephone number: (202) 566-0511; email address:
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' ``the Agency,'' or ``our'' is used, we mean EPA. Acronyms that
are used in this rulemaking that may be helpful include:
AHRI--Air-Conditioning, Heating, and Refrigeration Institute
ALD--Automatic Leak Detection
AIM Act--American Innovation and Manufacturing Act of 2020
APF--Air Permitting Forum
APU--Auxiliary power unit
ASHRAE--American Society of Heating, Refrigerating and Air-
Conditioning Engineers
ASTM--American Society for Testing and Materials
BOEM--Bureau of Ocean Energy Management
BTU/h--British thermal units per hour
CAA--Clean Air Act
CARB--California Air Resources Board
CBI--Confidential Business Information
CFC--Chlorofluorocarbon
CFR--Code of Federal Regulations
CH4--Methane
CO2--Carbon dioxide
CO2e--Carbon Dioxide Equivalent
DOD--Department of Defense
DOI--Department of the Interior
DOJ--Department of Justice
DOT--Department of Transportation
EEAP--Environmental Effects Assessment Panel
EOL--End of Life
EPA--Environmental Protection Agency
ER&R--Emissions Reduction and Reclamation
EVe--Exchange Value Equivalent
FAA--Federal Aviation Administration
FEMA--Fire Equipment Manufacturers Association
F-HTFs--Fluorinated Heat Transfer Fluids
FOIA--Freedom of Information Act
FSSA--Fire Suppression Systems Association
GHG--Greenhouse gas
GWP--Global Warming Potential
HARC--Halon Alternatives Research Corporation
HCFC--Hydrochlorofluorocarbon
HCFO--Hydrochlorofluoroolefin
HEEP--HFC Emissions Estimating Program
HFC--Hydrofluorocarbon
HFO--Hydrofluoroolefin
HSWA--Hazardous and Solid Waste Amendments of 1984
HVAC--Heating, Ventilation, and Air Conditioning
HVACR--Heating, Ventilation, Air Conditioning, and Refrigeration
ICR--Information Collection Request
in-Hg--inches of Mercury
IPCC--Intergovernmental Panel on Climate Change
IPR--Industrial Process Refrigeration
LRM--Lifecycle refrigerant management
MACS--Mobile Air Climate Systems Association
MMTCO2e--Million Metric Tons of Carbon Dioxide Equivalent
MMTEVe--Million Metric Tons of Exchange Value Equivalent
MVAC--Motor Vehicle Air Conditioner
NAICS--North American Industrial Classification System
NAFED--National Association of Fire Equipment Distributors
NEDA/CAP--National Environmental Development Association's Clean Air
Project
NFPA--National Fire Protection Association
NODA--Notice of Data Availability
NRDC--Natural Resources Defense Council
NTTAA--National Technology Transfer and Advancement Act
OCS--Outer Continental Shelf
OCSLA--Outer Continental Shelf Lands Act
ODP--Ozone Depletion Potential
ODS--Ozone-depleting substances
OEM--Original Equipment Manufacturer
OMB--Office of Management and Budget
PII--Personally identifiable information
ppm--Parts Per Million
PRA--Paperwork Reduction Act
PTAC--Packaged terminal air conditioners
R4 Program--Refrigerant Recovery, Reclaim, and Reuse Requirements
(CARB Program)
RACA--Request for Additional Consumption Allowance
RACHP--Refrigeration, Air Conditioning, and Heat Pumps
RCOP--Recycling Code of Practice
RCRA--Resource Conservation and Recovery Act
RFA--Regulatory Flexibility Act
RIA--Regulatory Impact Analysis
SAE--Society of Automotive Engineers
SC-HFC--Social Cost of Hydrofluorocarbons
SISNOSE--Significant Economic Impact on a Substantial Number of
Small Entities
SNAP--Significant New Alternatives Policy
TFA--Trifluoracetic acid
TSD--Technical Support Document
UMRA--Unfunded Mandates Reform Act
VCOP--Voluntary Code of Practice
VRF--Variable Refrigerant Flow
VSQG--Very Small Quantity Generator
Table of Contents
I. Executive Summary
A. What is the purpose of these regulations?
B. What is the summary of the regulations finalized in this
notice?
C. What is the summary of the costs and benefits?
II. General Information
A. Do these regulations apply to me?
B. What is EPA's authority for these regulations?
III. Background
A. What are HFCs?
B. How do HFCs affect public health and welfare?
C. What regulatory programs addressing refrigerants has EPA
already established under the Clean Air Act?
1. National Recycling and Emission Reduction Program (CAA
section 608)
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2. Motor Vehicle Air Conditioning Servicing Program (CAA section
609)
3. Significant New Alternatives Policy Program (CAA section 612)
IV. How is EPA regulating the management of HFCs and their
substitutes?
A. What definitions is EPA implementing under subsection (h)?
1. Terms That Did Not Generate Comment and That EPA Is
Finalizing as Proposed
2. Terms That Received Comment or That EPA is Modifying
3. What additional comments did EPA receive on definitions?
B. What types of equipment is EPA addressing under subsection
(h)?
C. How is EPA addressing leak repair?
1. What refrigerants are subject to leak repair requirements?
2. Appliances with what charge size are subject to leak repair
requirements?
3. What leak repair provisions is EPA establishing?
a. Leak Rate Calculations
b. Requirement To Repair Leaks, Timing and Applicable Leak Rates
c. Verification Testing
d. Leak Inspections
e. Chronically Leaking Appliances
f. Retrofit and Retirement Plans
g. Recordkeeping and Reporting
D. How is EPA establishing requirements for the installation of
automatic leak detection systems?
1. Automatic Leak Detection Requirements
2. Recordkeeping and Reporting
E. How is EPA establishing requirements for recovered and
reclaimed HFCs?
1. Reclamation Standard
2. Requirements for Servicing and/or Repair of Existing
Equipment in the RACHP sector
F. How is EPA establishing an HFC emissions reduction program
for the fire suppression sector?
1. Nomenclature Used in This Section
2. Emissions Reduction in the Fire Suppression Sector
a. Minimizing Releases of HFCs
b. Requirements for Initial Installation of Equipment for Fire
Suppression
c. Requirements for Servicing and/or Repair of Existing
Equipment for Fire Suppression
d. Fire Suppression Technician Training
e. Recycling of HFCs Prior to Disposal of Fire Suppression
Equipment Containing HFCs
f. Recordkeeping and Reporting
G. What requirements is EPA establishing for handling disposable
cylinders?
1. Requirements for Disposable Cylinders
2. Small Cans of Refrigerant
H. How is EPA establishing RCRA refrigerant recycling
alternative standards?
1. Nomenclature Used in This Section
2. Background
3. Final Alternative RCRA Standards for Ignitable Spent
Refrigerants Being Recycled for Reuse
a. Comments on the RCRA Alternative Standards and Changes Made
in Response to Comments
b. Scope of the Final RCRA Alternative Standards
c. RCRA Alternative Standards Requirements
4. RCRA Very Small Quantity Generator Wastes
5. RCRA Regulation of Exports and Imports of Certain Ignitable
Spent Refrigerants
6. Applicability of Alternative Standard in RCRA-Authorized
States
7. Effect on State Authorization
I. MVAC Servicing and Reprocessed Material
V. How is EPA treating data reported under this rule?
A. Background on Determinations of Whether Information is
Entitled to Treatment as Confidential Information
1. Confidential Treatment of Reported Information
2. Emission Data Under section 114 of the Clean Air Act
B. Data Elements Reported to EPA Under the Leak Repair
Provisions
C. Data Elements Related to Fire Suppression
VI. What are the costs and benefits of this action?
A. Background
B. Estimated Costs and Benefits of the Final Rule
1. Total Incremental Costs and Benefits of the Final Rule
2. Estimating Costs and Benefits Based on Affected Equipment and
Appliances
VII. How is EPA considering environmental justice?
VIII. How is EPA responding to other comments on the proposed rule?
IX. Judicial Review
X. Severability
XI. Statutory and Executive Order Review
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 14094: Modernizing Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act (NTTAA)
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations and Executive Order 14096: Revitalizing Our Nation's
Commitment to Environmental Justice for All
K. Congressional Review Act (CRA)
I. Executive Summary
A. What is the purpose of these regulations?
The Environmental Protection Agency (EPA) is issuing regulations to
implement certain provisions of the American Innovation and
Manufacturing Act of 2020, codified at 42 U.S.C. 7675 (AIM Act or ``the
Act''). The AIM Act authorizes EPA to address hydrofluorocarbons (HFCs)
in three main ways: Phasing down HFC production and consumption through
an allowance allocation program; \1\ facilitating the transition to
next-generation technologies by restricting use of these HFCs in the
sector or subsectors in which they are used; \2\ and promulgating
certain regulations for purposes of maximizing reclaiming and
minimizing releases of HFCs from equipment and ensuring the safety of
technicians and consumers. This rulemaking focuses on the third area--
establishing certain regulations for HFCs and their substitutes for the
purposes of maximizing reclaiming and minimizing releases of HFCs from
equipment and ensuring the safety of technicians and consumers.
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\1\ EPA has issued regulations establishing and codifying a
framework for phasing down HFC production and consumption through an
allowance allocation program, ``Phasedown of Hydrofluorocarbons:
Establishing the Allowance Allocation and Trading Program Under the
American Innovation and Manufacturing Act'' (86 FR 55116, October 5,
2021)--referred to as the ``Allocation Framework Rule'' throughout
this document. EPA finalized a separate rulemaking to update certain
aspects of that regulatory framework (see final rule at 88 FR 46836,
July 20, 2023)--referred to as the ``2024 Allocation Rule''
throughout this document.
\2\ EPA has issued regulations addressing the framework for how
EPA intends to implement its authority to restrict the use of HFCs
in sectors and subsectors where they are used, as well as
establishing certain restrictions on the use of HFCs in specific
sectors or subsectors in which they are used, ``Phasedown of
Hydrofluorocarbons: Restrictions on the Use of Certain
Hydrofluorocarbons Under the American Innovation and Manufacturing
Act of 2020'' (88 FR 73098, October 24, 2023)--referred to as the
``2023 Technology Transitions Rule'' throughout this document. EPA
issued an interim final rule under the Technology Transitions
program further addressing a particular subsector (88 FR 88825,
December 26, 2023).
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More specifically, subsection (h) of the AIM Act, titled
``Management of Regulated Substances,'' directs EPA to promulgate
regulations to control, where appropriate, any practice, process, or
activity regarding the servicing, repair, disposal, or installation of
equipment that involves: a regulated substance (used interchangeably
with ``HFCs'' in this rulemaking), a substitute for a regulated
substance, the reclaiming of a regulated substance used as a
refrigerant, or the reclaiming of a substitute for a regulated
substance used as a refrigerant.
This rulemaking establishes the Emissions Reduction and Reclamation
(ER&R) Program to implement the provisions of subsection (h), including
its authority to issue regulations to
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control such practices, processes, or activities, particularly as
related to the management, use, and reuse of HFCs and substitutes in
equipment. Further, these regulations include provisions to support
implementation of, compliance with, and enforcement of requirements
under subsection (h) of the AIM Act.
Additionally, EPA is establishing alternative RCRA standards for
certain ignitable spent refrigerants being recycled for reuse, as that
term is used under RCRA.\3\ These standards involve regulatory changes
to 40 Code of Federal Regulations (CFR) parts 261 through 271 and are
separate from the regulations under subsection (h)(1) of the AIM Act.
These standards are established under a different set of statutory
authorities than the ER&R regulations, and they are part of an
independent and distinct regulatory regime. EPA is providing notice of
the AIM Act regulations and the RCRA regulations in one Federal
Register notice given both the RCRA regulations concerning the recovery
and recycling of certain ignitable spent refrigerants and the AIM Act
regulations concerning recovery and reclamation of refrigerants may be
of interest to some of the same stakeholders.
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\3\ The terms ``reclaim'' and ``recycle'' have different
regulatory purposes and definitions under RCRA than under the CAA
and the AIM Act. Under RCRA, a material is ``reclaimed'' if it is
processed to recover a usable product, or if it is regenerated.
Examples are recovery of lead values from spent batteries and
regeneration of spent solvents (See 40 CFR 261.1(c)(4)). Reclamation
is one of the four types of ``recycling'' identified in 40 CFR
261.2(c) that can involve management of a solid waste under RCRA.
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B. What is the summary of the regulations finalized in this notice?
EPA is promulgating two separate and distinct sets of regulations.
First, EPA is establishing an ER&R program for the management of HFCs
and certain substitutes under subsection (h) of the AIM Act. The Agency
is including provisions that address the purposes identified in
subsection (h)(1) of the AIM Act of maximizing reclamation, minimizing
the release of HFCs from equipment, and ensuring the safety of
technicians and consumers. Specifically, the AIM Act regulations
include requirements for:
Leak repair of appliances that contain at least 15 pounds
of a refrigerant that contains an HFC or a substitute for an HFC with a
global warming potential (GWP) above 53, with specific exceptions;
Installation and use of an automatic leak detection (ALD)
system for certain new and existing appliances containing 1,500 pounds
or more of a refrigerant that contains an HFC or a substitute for an
HFC with a GWP above 53;
A reclamation standard limiting the amount of virgin HFCs
that can be contained in reclaimed HFC refrigerants;
The servicing and/or repair of existing equipment in
certain refrigeration, air conditioning, and heat pumps (RACHP)
subsectors to be done with reclaimed HFCs;
The servicing, repair, disposal, or installation of fire
suppression equipment that contains HFCs, with the purpose of
minimizing the release of HFCs from that equipment, including
requirements for the initial installation and servicing and/or repair
of fire suppression equipment to be done with recycled HFCs, as well as
requirements related to technician training in the fire suppression
sector;
Removal of HFCs from disposable cylinders before
discarding; and
Recordkeeping, reporting, and labeling.
Enforcement and compliance. To support compliance with these
requirements, EPA is establishing labeling, reporting, and
recordkeeping requirements as described in this rulemaking notice. The
Agency intends to use a reporting platform the same as or similar to
those used for prior AIM Act rules, and will consider making
information not entitled to confidential treatment, as described in
section V of this action, publicly available.
Exemptions for certain applications and other provisions.
Provisions finalized in this action do not apply to two applications,
mission-critical military end uses and on board aerospace fire
suppression, as listed at 40 CFR 84.13(a), for a year or years for
which that application receives an application-specific allowance as
defined at 40 CFR 84.3. As such, the provisions established in this
action include exemptions for the following applications, for a year or
years for which that application receives an application-specific
allowance:
Mission-critical military end uses and
On board aerospace fire suppression.
Amendments to the RCRA hazardous waste regulations. Second, EPA is
amending a separate set of regulations promulgated under RCRA, a
separate statutory authority from the AIM Act, to establish alternative
standards for ignitable spent refrigerants when ``recycled for reuse,''
as the term is to be defined under RCRA. EPA is establishing that the
alternative standards at 40 CFR part 266, subpart Q, under RCRA, apply
to HFCs and other substitutes that are lower flammability (i.e., that
do not belong to flammability Class 3 as classified by the American
Society of Heating, Refrigerating and Air-Conditioning Engineers
(ASHRAE) Standard 34-2022).\4\ EPA is limiting the alternative
standards to lower flammability HFCs and substitutes (Class 1, 2, and
2L) because of the lower risk of fire from the collection and recycling
for reuse of these refrigerants, and the greater market value of these
refrigerants, which supports the conclusion that these spent
refrigerants will be recycled for reuse and not stockpiled, mismanaged,
or abandoned.
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\4\ ASHRAE Standard 34-2022 assigns a safety group
classification for each refrigerant that consists of two
alphanumeric characters (e.g., A2 or B1). The capital letter
indicates the toxicity class (``A'' for lower toxicity) and the
numeral denotes the flammability. ASHRAE recognizes three
classifications and one subclass for refrigerant flammability. The
three main flammability classifications are Class 1, for
refrigerants that do not propagate a flame when tested as per the
ASHRAE 34 standard, ``Designation and Safety Classification of
Refrigerants;'' Class 2, for refrigerants of lower flammability; and
Class 3, for highly flammable refrigerants, such as the hydrocarbon
refrigerants. ASHRAE recently updated the safety classification
matrix to include a new flammability subclass 2L, for flammability
Class 2 refrigerants that burn very slowly.
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Other topics. Together with the proposal for this rule, EPA issued
an advanced notice of proposed rulemaking (ANPRM) seeking information
on approaches for establishing requirements for technician training
and/or certification. As stated at proposal, EPA is not addressing
technician training in this final rulemaking and accordingly is not
responding to comments on the ANPRM in this final rule.
Additionally, EPA is not finalizing as part of this action under
the AIM Act the proposed provisions for container tracking of HFCs that
could be used in the servicing, repair, and/or installation of
refrigerant-containing or fire suppression equipment. EPA is also not
finalizing in this action provisions requiring the initial installation
of refrigerant-containing equipment in certain subsectors in the RACHP
sector to be done with reclaimed refrigerant where HFCs or a blend
containing HFCs are used. The Agency intends to further consider those
provisions and the comments submitted on the proposed requirements
before determining how to proceed. As such, EPA need not respond to
public comments on those proposed requirements as part of this action.
EPA received many comments on this rulemaking, including those that
were in general support or opposition of the various provisions.
Specific comments
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as relevant to provisions in this rulemaking are discussed in the
respective sections of this rulemaking. Some comments raised issues
that are beyond the scope of this rulemaking; because those comments
require no response, EPA need not address them in this notice, though
in many cases the Agency has noted the submission of such comments for
informational purposes.
C. What is the summary of the costs and benefits?
The costs and benefits for the provisions related to managing
regulated substances and their substitutes in this rule comes from the
Analysis of the Economic Impact and Benefits of the Final Rule:
Management of Certain Hydrofluorocarbons and Substitutes Under
Subsection (h) of the American Innovation and Manufacturing Act of 2020
technical support document (TSD) (referred to as the ``Economic Impact
and Benefits TSD'' in this rule) and the Regulatory Impact Analysis
(RIA) Addendum for this rule (referred to in this rule as the ``RIA
addendum'') contained in the docket of this rule to provide the public
with information on the relevant costs and benefits of this action, and
to comply with executive orders. EPA notes that the costs and benefits
associated with the management of regulated substances and their
substitutes under the AIM Act are described and calculated separately
from those associated with the amendments to the RCRA hazardous waste
regulations. These analyses--as summarized later in this section--
highlight the economic costs and benefits of the provisions in this
rulemaking.
Given that the provisions being finalized concern the management of
HFCs, and HFCs are subject to the phasedown of production and
consumption under the AIM Act, the Agency relied on its previous
analyses as a starting point for the assessment of costs and benefits
of this rule. Specifically, the Allocation Framework Rule, ``Phasedown
of Hydrofluorocarbons: Establishing the Allowance Allocation and
Trading Program Under the American Innovation and Manufacturing Act''
(86 FR 55116, October 5, 2021), the 2024 Allocation Rule, ``Phasedown
of Hydrofluorocarbons: Allowance Allocation Methodology for 2024 and
Later Years'' (88 FR 46836, July 20, 2023),\5\ and the 2023 Technology
Transitions Rule, ``Phasedown of Hydrofluorocarbons: Restrictions on
the Use of Certain Hydrofluorocarbons Under the American Innovation and
Manufacturing Act of 2020'' (88 FR 73098, October 24, 2023) are assumed
as a baseline for this rule. In this way, EPA analyzed the potential
incremental impacts of the rule, attributing benefits only insofar as
they are additional to those already assessed in the Allocation
Framework Rule RIA, the 2024 Allocation Rule RIA Addendum, and the 2023
Technology Transitions Rule RIA Addendum (collectively referred to as
``Allocation and 2023 Technology Transitions Rules'' in this
discussion).
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\5\ This rule established the methodology for allocating HFC
production and consumption allowances starting with calendar year
2024 allowances and adjusted the consumption baseline downward by
less than 0.5 percent to reflect corrected data, among other changes
(88 FR 46836, July 20, 2023). EPA also finalized another rulemaking
in 2023 to update the regulations established in the HFC Allocation
Framework Rule. That rule ``Phasedown of Hydrofluorocarbons:
Adjustment to the Hydrofluorocarbon Baseline,'' amended the
production baseline downward by 0.005 percent to reflect corrected
data (88 FR 44220, July 12, 2023).
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As detailed in the RIA addendum and the Economic Impact and
Benefits TSD, the number, charge sizes, leak rates, and other
characteristics of potentially affected RACHP equipment were estimated
using EPA's Vintaging Model.\6\ These estimates served as a basis for
calculating the reductions in HFC consumption and emissions from the
various requirements of the final rule. As described in the RIA
addendum and the Economic Impact and Benefits TSD, the leak repair and
ALD system provisions finalized in this rule are assumed to result in
the repair of leaking systems earlier than they otherwise would have,
leading to reduced emissions of HFCs. Provisions requiring reclaimed
refrigerant, requirements for the fire suppression sector, and
provisions related to the handling of disposable cylinders are further
estimated to result in incremental reductions in HFC emissions.
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\6\ U.S. EPA. 2023. EPA's Vintaging Model representing the
Allocation Framework Rule as modified by the 2024 Allocation Rule
RIA Addendum and the 2023 Technology Transitions Rule RIA Addendum.
VM IO file_v4.4_02.04.16_Final TT Rule 2023 High Addition.
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Estimated reductions in HFC releases from equipment result in
climate benefits due to reduced climate forcing, which have been
monetized in the RIA addendum by multiplying avoided emissions by
estimates of the social cost of each HFC (collectively referred to as
SC-HFC) affected by the rule. The RIA addendum includes these SC-HFC
estimates and uses them in some of the analyses for the purpose of
providing information to the public and to comply with executive
orders. Although we utilized the SC-HFC estimates for purposes of those
analyses, this action does not rely on those values or the resulting
quantification of climate benefits as a record basis for this rule, and
we would reach the same conclusions in absence of the social costs of
HFCs. In the years 2026 through 2050, EPA estimates the rule will
prevent approximately 120 million metric tons of carbon dioxide
equivalent (MMTCO2e) in HFC emissions, and the present value
of economic benefit of avoiding the damages associated with those
emissions is estimated at $8.4 billion (discounted to 2024 dollars
using a three percent discount rate).\7\ The annual benefits are
estimated to decrease over time due to the HFC phasedown and the
transition out of the higher-GWP HFCs, lowering the average GWP of
later emissions. For example, it is estimated that the leak repair and
ALD system provisions will prevent approximately 5.6 MMTCO2e
of HFC emissions in 2030 and 3.0 MMTCO2e in 2040.
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\7\ Unless stated otherwise, costs and benefits in this section
are presented in 2022 dollars.
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Reducing HFC emissions due to fixing leaks earlier is also
anticipated to lead to savings for some system owners and operators, as
less new refrigerant needs to be purchased to replace leaked
refrigerant. In 2026, it is estimated that the leak repair and ALD
provisions will lead to savings of $19.5 million (2022$) based on
reduced HFC refrigerant needed to maintain the equipment. We also are
aware that a refrigerant-containing appliance would operate less
efficiently if not properly charged and maintained, leading to
increased energy costs; however, we have not quantified such savings in
our analysis. EPA acknowledges that these $19.5 million in savings may
not completely offset leak repair compliance costs and may not accrue
uniformly to all regulated entities. Further, while these provisions
have been estimated to result in savings, EPA understands that entities
that may be affected by these regulations might not perform the
practices, processes, or activities that would result in cost savings
absent regulation. When entities are reviewing their own economic
analyses, some factors may be pertinent that make new technologies or
economically favorable best practices less attractive than existing
practices, or some market failure may exist that acts as a barrier to
businesses' adoption of
[[Page 82686]]
the most profitable course.\8\ For example, market failures may exist
where there is imperfect information or split incentives, such as
decision-makers not knowing the percentage of energy use associated
with refrigeration or the costs of replacing refrigerant lost from
leaking appliances.
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\8\ Klemick, Heather & Kopits, Elizabeth & Wolverton, Ann.
``Potential Barriers to Improving Energy Efficiency in Commercial
Buildings: The Case of Supermarket Refrigeration.'' Journal of
Benefit-Cost Analysis. 8, 2017, pp. 1-31.
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The compliance costs of the rule include recordkeeping and
reporting costs, the costs of purchasing and operating ALD systems,
costs of required inspections, the cost of repairing leaks earlier than
would have been necessary without the provisions, the costs associated
with using reclaimed HFCs in certain RACHP subsectors for the servicing
of existing equipment (vis a vis virgin manufactured HFCs), the costs
associated with minimizing releases of HFCs from fire suppression
equipment (including using recycled HFCs in the initial and servicing
and/or repair of fire suppression equipment), and the cost of
disposable cylinder management requirements. In the years 2026 through
2050, these provisions would result in compliance costs (inclusive of
refrigerant savings) with a present value estimated at $1.5 billion (in
2022 dollars discounted to 2024) at a two percent discount rate, $1.3
billion at a three percent discount rate, or $0.9 billion at a seven
percent discount rate.
Taking into account both benefits and compliance costs over the
2026 through 2050 time period, it is estimated that the rule results in
present value net benefit (climate benefits, as monetized by
application of SC-HFCs, discounted at three percent, minus compliance
costs) of $6.9 billion (with compliance costs discounted at two
percent) to $7.5 billion (with compliance costs discounted at seven
percent).
As detailed in the RIA addendum and the Economic Impact and
Benefits TSD, these values represent an estimate of potential
incremental benefits and assume that industry would comply with
previous AIM Act regulations as outlined in the 2023 Technology
Transitions RIA Addendum \9\ but would not undertake certain
improvements to leak repair and refrigerant recovery practices in the
absence of this rulemaking that were not required by those regulations.
Since these assumptions are ultimately uncertain, in the RIA addendum
and the Economic Impact and Benefits TSD, EPA has also provided
estimates under an additional scenario in which leak repair and
recovery improvements do occur in the baseline, thus resulting in lower
incremental benefits. The assumptions in this alternative scenario
translate into reduced estimates of the incremental effect of the
provisions of this final rule since additional impacts are only
quantified insofar as they go beyond baseline assumptions of existing
policy and industry practice.
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\9\ In the 2023 Technology Transitions RIA Addendum, EPA
analyzed a ``base case'' and a ``high additionality'' scenario. The
former is used as the baseline to analyze the base case scenario for
this rule. See the RIA addendum and Economic Impact and Benefits TSD
for additional details.
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Some of the information regarding projected impacts of certain
aspects of the action was considered by EPA as it finalized this
rulemaking. To the extent that EPA has considered such information, it
is compiled in the Economic Impact and Benefits TSD, which is in the
docket for this rulemaking. While EPA has included estimates of the
costs and benefits of this rulemaking in the RIA addendum to provide
the public with information on the relevant costs and benefits of this
action and to comply with Executive Orders, the analysis in the RIA
addendum does not form a basis or rationale for any of the provisions
EPA is promulgating in this rulemaking.
Further, as explained previously in this section, although EPA is
using the SC-HFCs for purposes of some of the analysis in the RIA
addendum, this action does not rely on those SC-HFC estimates as a
record basis for the Agency's action. EPA would reach the conclusions
in this rule even in the absence of the SC-HFCs. Additional information
on these analyses can be found in section VI of this preamble, as well
as the RIA addendum, which is in the docket for this rulemaking.
II. General information
A. Do these regulations apply to me?
You may be potentially affected by the regulations established in
this final rule if you own, operate, service, repair, recycle, dispose,
or install equipment containing HFCs or their substitutes, as well as
if you recover, recycle, or reclaim HFCs or their substitutes. You may
also be potentially affected if you manufacture or sell equipment
containing HFCs or their substitutes. Potentially affected categories,
by North American Industrial Classification System (NAICS) code, are
included in Table 1.
Table 1--NAICS Classification of Potentially Affected Entities
------------------------------------------------------------------------
NAICS Code NAICS industry description
------------------------------------------------------------------------
236118................... Residential Remodelers.
236220................... Commercial and Institutional Building
Construction.
238220................... Plumbing, Heating, and Air-Conditioning
Contractors.
238990................... All Other Specialty Trade Contractors.
311812................... Commercial Bakeries.
321999................... All Other Miscellaneous Wood Product
Manufacturing.
322299................... All Other Converted Paper Product
Manufacturing.
324191................... Petroleum Lubricating Oil and Grease
Manufacturing.
324199................... All Other Petroleum and Coal Products
Manufacturing.
325199................... All Other Basic Organic Chemical
Manufacturing.
325211................... Plastics Material and Resin Manufacturing.
325412................... Pharmaceutical Preparation Manufacturing.
325414................... Biological Product (except Diagnostic)
Manufacturing.
325998................... All Other Miscellaneous Chemical Product and
Preparation Manufacturing.
326299................... All Other Rubber Product Manufacturing.
327999................... All Other Miscellaneous Nonmetallic Mineral
Product Manufacturing.
332812................... Metal Coating, Engraving (except Jewelry and
Silverware), and Allied Services to
Manufacturers.
332999................... All Other Miscellaneous Fabricated Metal
Product Manufacturing.
333415................... Air-Conditioning and Warm Air Heating
Equipment and Commercial and Industrial
Refrigeration Equipment Manufacturing.
333511................... Industrial Mold Manufacturing.
[[Page 82687]]
333912................... Air and Gas Compressor Manufacturing.
333999................... All Other Miscellaneous General Purpose
Machinery Manufacturing.
334413................... Semiconductor and Related Device
Manufacturing.
334419................... Other Electronic Component Manufacturing.
334516................... Analytical Laboratory Instrument
Manufacturing.
335220................... Major Household Appliance Manufacturing.
336120................... Heavy-Duty Truck Manufacturing.
336212................... Truck Trailer Manufacturing.
336214................... Travel Trailer and Camper Manufacturing.
3363..................... Motor Vehicle Parts Manufacturing.
3364..................... Aerospace Product and Parts Manufacturing.
336411................... Aircraft Manufacturing.
336611................... Ship Building and Repairing.
336612................... Boat Building.
339112................... Surgical and Medical Instrument
Manufacturing.
339113................... Surgical Appliance and Supplies
Manufacturing.
339999................... All Other Miscellaneous Manufacturing.
423120................... Motor Vehicle Supplies and New Parts Merchant
Wholesalers.
423450................... Medical, Dental, and Hospital Equipment and
Supplies Merchant Wholesalers.
423610................... Electrical Apparatus and Equipment, Wiring
Supplies, and Related Equipment Merchant
Wholesalers.
423620................... Household Appliances, Electric Housewares,
and Consumer Electronics Merchant
Wholesalers.
423690................... Other Electronic Parts and Equipment Merchant
Wholesalers.
423720................... Plumbing and Heating Equipment and Supplies
(Hydronics) Merchant Wholesalers.
423730................... Warm Air Heating and Air-Conditioning
Equipment and Supplies Merchant Wholesalers.
423740................... Refrigeration Equipment and Supplies Merchant
Wholesalers.
423830................... Industrial Machinery and Equipment Merchant
Wholesalers.
423840................... Industrial Supplies Merchant Wholesalers.
423850................... Service Establishment Equipment and Supplies
Merchant Wholesalers.
423860................... Transportation Equipment and Supplies (except
Motor Vehicle) Merchant Wholesalers.
423990................... Other Miscellaneous Durable Goods Merchant
Wholesalers.
424690................... Other Chemical and Allied Products Merchant
Wholesalers.
424820................... Wine and Distilled Alcoholic Beverage
Merchant Wholesalers.
441310................... Automotive Parts and Accessories Stores.
443141................... Household Appliance Stores.
444190................... Other Building Material Dealers.
445110................... Supermarkets and Other Grocery (except
Convenience) Stores.
445131................... Convenience Retailers.
445298................... All Other Specialty Food Retailers.
446191................... Food (Health) Supplement Stores.
449210................... Electronics and Appliance Retailers.
452311................... Warehouse Clubs and Supercenters.
453998................... All Other Miscellaneous Store Retailers
(except Tobacco Stores).
45711.................... Gasoline Stations With Convenience Stores.
481111................... Scheduled Passenger Air Transportation.
488510................... Freight Transportation Arrangement.
493110................... General Warehousing and Storage.
531120................... Lessors of Nonresidential Buildings (except
Mini warehouses).
541330................... Engineering Services.
541380................... Testing Laboratories.
541512................... Computer Systems Design Services.
541519................... Other Computer Related Services.
541620................... Environmental Consulting Services.
561210................... Facilities Support Services.
561910................... Packaging and Labeling Services.
561990................... All Other Support Services.
562111................... Solid Waste Collection.
562211................... Hazardous Waste Treatment and Disposal.
562920................... Materials Recovery Facilities.
621498................... All Other Outpatient Care Centers.
621999................... All Other Miscellaneous Ambulatory Health
Care Services.
72111.................... Hotels (Except Casino Hotels) and Motels.
72112.................... Casino Hotels.
72241.................... Drinking Places (Alcoholic Beverages).
722511................... Full-service Restaurants.
722513................... Limited-service Restaurants.
722514................... Cafeterias, Grill Buffets, and Buffets.
722515................... Snack and Nonalcoholic Beverage Bars.
81119.................... Other Automotive Repair and Maintenance.
811219................... Other Electronic and Precision Equipment
Repair and Maintenance.
811412................... Appliance Repair and Maintenance.
922160................... Fire Protection.
------------------------------------------------------------------------
[[Page 82688]]
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
rulemaking. This table lists the types of entities that EPA expects
could potentially be regulated by this rulemaking. Other types of
entities not listed in the table could also be regulated. To determine
whether your entity may be regulated by this rulemaking, you should
carefully examine the regulatory text at the end of this document. If
you have questions regarding the applicability of these regulations to
a particular entity, consult the people listed in the FOR FURTHER
INFORMATION CONTACT section.
B. What is EPA's authority for these regulations?
On December 27, 2020, the AIM Act was enacted as section 103 in
Division S, Innovation for the Environment, of the Consolidated
Appropriations Act, 2021 (42 U.S.C. 7675). In subsection (k)(1)(A), the
AIM Act provides EPA with the authority to promulgate necessary
regulations to carry out EPA's functions under the Act, including its
obligations to ensure that the Act's requirements are satisfied (42
U.S.C. 7675(k)(1)(A)). Subsection (k)(1)(C) of the Act also provides
that Clean Air Act (CAA) sections 113, 114, 304, and 307 apply to the
AIM Act and any regulations EPA promulgates under the AIM Act as though
the AIM Act were part of Title VI of the CAA (42 U.S.C. 7675(k)(1)(C)).
Accordingly, the promulgation of these regulations under the AIM Act is
subject to CAA section 307(d) (see 42 U.S.C. 7607(d)(1)(I)) (CAA
section 307(d) applies to ``promulgation or revision of regulations
under subchapter VI of this chapter ((relating to stratosphere and
ozone protection))'').
The AIM Act authorizes EPA to address HFCs in three main ways:
phasing down HFC production and consumption through an allowance
allocation program; facilitating the transition to next-generation
technologies by restricting use of these HFCs in the sector or
subsectors in which they are used; and promulgating certain regulations
for purposes of maximizing reclaiming and minimizing releases of HFCs
from equipment and ensuring the safety of technicians and consumers.
This rulemaking focuses on the third area--establishing certain
regulations for HFCs and their substitutes for the purposes of
maximizing reclaiming \10\ and minimizing releases of HFCs from
equipment and ensuring the safety of technicians and consumers.
---------------------------------------------------------------------------
\10\ For purposes of this provision, EPA views ``reclaim,''
``reclaiming,'' and ``reclamation'' as similar terms and when used
as nouns uses them interchangeably in this ER&R action.
---------------------------------------------------------------------------
The identification of regulated substances is addressed under
subsection (c) of the Act. The Act lists 18 saturated HFCs, and by
reference any of their isomers not so listed, which are covered by the
statute's provisions and are referred to as ``regulated substances''
\11\ under the Act (42 U.S.C. 7675(c)(1)). Congress also assigned an
``exchange value'' 12 13 to each regulated substance. EPA is
also authorized to designate additional substances as regulated
substances if they meet certain criteria; for example, to be listed,
the substance must be a saturated HFC that has an exchange value
greater than 53 (which is also the lowest exchange value for a
regulated substance listed in subsection (c)(1) of the Act) (42 U.S.C.
7675(c)(3)).
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\11\ As noted previously in this action, ``regulated substance''
and ``HFC'' are used interchangeably in this ER&R action.
\12\ EPA has determined that the exchange values included in
subsection (c) of the AIM Act are identical to the GWPs included in
the Intergovernmental Panel on Climate Change (IPCC) (2007). EPA
uses the terms ``global warming potential,'' ``GWP,'' and ``exchange
value'' interchangeably in this rulemaking.
\13\ IPCC (2007): Solomon, S., D. Qin, M. Manning, R.B. Alley,
T. Berntsen, N.L. Bindoff, Z. Chen, A. Chidthaisong, J.M. Gregory,
G.C. Hegerl, M. Heimann, B. Hewitson, B.J. Hoskins, F. Joos, J.
Jouzel, V. Kattsov, U. Lohmann, T. Matsuno, M. Molina, N. Nicholls,
J. Overpeck, G. Raga, V. Ramaswamy, J. Ren, M. Rusticucci, R.
Somerville, T.F. Stocker, P. Whetton, R.A. Wood and D. Wratt, 2007:
Technical Summary. In: Climate Change 2007: The Physical Science
Basis. Contribution of Working Group I to the Fourth Assessment
Report of the Intergovernmental Panel on Climate Change [Solomon,
S., D. Qin, M. Manning, Z. Chen, M. Marquis, K.B. Averyt, M. Tignor
and H.L. Miller (eds.)]. Cambridge University Press, Cambridge,
United Kingdom and New York, NY, USA https://www.ipcc.ch/report/ar4/wg1. The IPCC's Fourth Assessment Report is also referred to as IPCC
AR4.
---------------------------------------------------------------------------
The regulated substances addressed in this rulemaking may be used
neat (i.e., as a single component substance) or in a blend with other
substances, which may include other regulated substances and/or
substitutes for regulated substances. The requirements included in this
rulemaking for regulated substances apply regardless of whether the
regulated substance is used neat or in a blend. In taking this
approach, EPA is not concluding that a blend that uses one or more
regulated substances is itself a regulated substance. Rather, the
Agency is intending to regulate the regulated substance(s) used within
a ``blend of substances'' (42 U.S.C. 7675(c)(3)(B)(ii)), such that the
requirements applicable to equipment that uses regulated substances
also affect equipment that uses regulated substances in blends. This is
consistent with approaches that the Agency has taken under the
Allocation Framework Rule (86 FR 55116, October 5, 2021), the 2024
Allocation Rule (88 FR 46836, July 20, 2023), and the 2023 Technology
Transitions Rule (88 FR 73098, October 24, 2023).\14\ Furthermore,
subsection (h)(1) requires EPA to promulgate regulations addressing
certain practices, processes, or activities involving, among other
things, a regulated substance or a substitute for a regulated substance
(42 U.S.C. 7675(h)(1)(A)-(B)). Consistent with those provisions,
regulatory requirements under subsection (h) may also apply with
respect to substitutes for regulated substances, regardless of whether
the substitute is used neat or in a blend. In taking this approach for
substitutes for a regulated substance, EPA is not concluding that a
blend that uses one or more such substitutes that are so regulated is
itself a regulated substance under subsection (c) of the Act, nor is
EPA designating the substitute a regulated substance under subsection
(c) of the Act. Rather, such substitutes are simply addressed, as
appropriate, under EPA's authority to promulgate regulations under
subsection (h) for certain practices, processes, or activities that
involve a substitute for a regulated substance.
---------------------------------------------------------------------------
\14\ In affirming this aspect of the Allocation Framework Rule,
the D.C. Circuit held that ``EPA has statutory authority to regulate
HFCs within blends . . . because an HFC within a blend remains a
regulated HFC under the Act.'' Heating, Air Conditioning &
Refrigeration Distributors Int'l v. EPA, 71 F.4th 59, 64 (D.C. Cir.
2023).
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Subsection (h) of the AIM Act is titled ``Management of Regulated
Substances.'' For purposes of maximizing reclaiming and minimizing
releases of HFCs from equipment and ensuring the safety of technicians
and consumers, subsection (h)(1) directs EPA to promulgate regulations
to control, where appropriate, any practice, process, or activity
regarding the servicing, repair, disposal, or installation of equipment
that involves a regulated substance, a substitute for a regulated
substance, the reclaiming of a regulated substance used as a
refrigerant, or the reclaiming of a substitute for a regulated
substance used as a refrigerant (42 U.S.C. 7675(h)(1)). Subsection
(h)(1) further provides that this includes requiring, where
appropriate, that any such servicing, repair, disposal, or installation
be performed by a trained technician meeting minimum standards, as
determined by EPA. The phrase ``where appropriate'' in subsection
(h)(1) provides EPA discretion to reasonably determine how the
regulations under
[[Page 82689]]
subsection (h)(1) will apply because ``where appropriate'' clearly
leaves EPA flexibility to determine how to regulate in the context of
subsection (h). In exercising its discretion under this provision, EPA
has taken a number of considerations into account, such as: the text of
subsection (h)(1) itself, including the statutory purposes identified
in that provision; the anticipated effectiveness of the requirements
under consideration in serving those purposes; the intent of subsection
(h), considering the overall context and structure of the AIM Act; and
information and insight drawn from EPA's past experience with the same
or similar practices, processes, or activities, as well as sectors,
subsectors, and markets, gained from implementing other programs,
including under other provisions of the AIM Act and the CAA.
Under subsection (h)(2)(A) of the AIM Act, the Agency ``shall
consider the use of authority available . . . under this section to
increase opportunities for the reclaiming of regulated substances used
as refrigerants.'' Subsection (h)(2)(B) of the Act further provides
that a ``regulated substance used as a refrigerant that is recovered
shall be reclaimed before the regulated substance is sold or
transferred to a new owner, except where the recovered regulated
substance is sold or transferred to a new owner solely for the purposes
of being reclaimed or destroyed.''
Further, subsection (h)(3) provides that in promulgating
regulations to carry out subsection (h), EPA may coordinate those
regulations with ``any other regulations promulgated by the [EPA] that
involve--(A) the same or a similar practice, process, or activity
regarding the servicing, repair, disposal, or installation of
equipment; or (B) reclaiming.'' The statute's use of ``may'' conveys
the Agency discretion to choose whether to coordinate regulations under
subsection (h) with other Agency regulations, as well as determine the
circumstances in which it is appropriate to undertake such
coordination. Congress did not define the term ``coordinate'' in the
AIM Act. EPA interprets the term, as used in this context, as
encompassing a variety of forms of coordination that could potentially
be used for the specified types of regulatory provisions and interprets
(h)(3) as conveying discretion to EPA to select the form or forms of
coordination that are appropriate for the particular circumstances and
regulatory provisions under consideration in a given action. This
action under subsection (h) of the AIM Act describes whether and where
EPA is coordinating with regulations that involve the same or similar
practices, processes, or activities regarding the servicing, repair,
disposal, or installation of equipment or reclaiming, and the Agency's
rationale on the appropriateness of coordinating with these
regulations. For example, coordination could include establishing
parallel requirements under subsection (h), where appropriate, as in
another regulatory regime so that a similar practice, process, or
activity in similar equipment is held to similar standards under both
regimes. It could also include deciding not to establish requirements
under subsection (h) in certain situations, such as when an existing
requirement already applies to a similar practice, process, or activity
under another set of regulations that EPA views as adequate to also
address the purposes of subsection (h). Coordination could also mean
coordinating rulemaking schedules or timing for certain requirements
under subsection (h) that cover a similar practice, process, or
activity as covered in a previous regulation and would meet the
purposes of subsection (h). Finally, coordination may also mean
coordinating the requirements under subsection (h) with revisions to
regulations under other statutory authorities that address related
practices, processes, or activities, with the goal of developing
independent regulatory regimes that operate well together to achieve
their stated goals.
Subsection (h)(4) expressly states that any rulemaking under
subsection (h) shall not apply to a regulated substance or a substitute
for a regulated substance that is contained in a foam. Thus, the
requirements in this rulemaking do not apply to regulated substances or
substitutes for regulated substances when those substances are
contained in foams.
Finally, subsection (h)(5) provides that, subject to availability
of appropriations, EPA shall establish a grant program to award small
business grants for the purchase of new specialized equipment for the
recycling, recovery, or reclamation of a substitute for a regulated
substance, including the purchase of approved refrigerant recycling
equipment for recycling, recovery, or reclamation in the service or
repair of motor vehicle air conditioner (MVAC) systems. Funds have not
been appropriated for this grant program. The establishment of this
program is outside the scope of this rulemaking.
Through this rulemaking, EPA is establishing an ER&R program that
includes requirements for leak repair for certain equipment containing
a refrigerant that contains an HFC or certain substitutes for HFCs;
installation and use of ALD systems for certain equipment; the
servicing and/or repair of refrigerant-containing equipment with
reclaimed HFCs in certain RACHP subsectors; requirements for the
servicing, repair, disposal, or installation of fire suppression
equipment that contains HFCs to be done with recycled HFCs, with the
purpose of minimizing the release of HFCs from that equipment, as well
as requirements related to technician training in the fire suppression
sector; and recovery of HFCs from disposable cylinders before
discarding. EPA is also establishing recordkeeping, reporting, and/or
labeling requirements pursuant to these provisions.
Under subsection (h)(1), EPA is directed to promulgate certain
regulations for ``purposes of maximizing the reclaiming and minimizing
the release of a regulated substance from equipment and ensuring the
safety of technicians and consumers.'' Subsection (h) further specifies
that those regulations are to control, where appropriate, any practice,
process, or activity regarding the servicing, repair, disposal, or
installation of equipment that involves a regulated substance, a
substitute for a regulated substance, the reclaiming of a regulated
substance used as a refrigerant, or the reclaiming of a substitute for
a regulated substance used as a refrigerant. Together, the provisions,
as summarized here and explained in greater detail in the relevant
sections of this rulemaking, are designed to further those three
purposes described in subsection (h)(1); i.e., (1) maximizing
reclaiming, (2) minimizing the release of regulated substances from
equipment, and (3) ensuring the safety of technicians and consumers,
consistent with the scope of regulatory authority under that provision.
As EPA interprets the statutory text, the suite of regulations
established under subsection (h)(1) of the Act, taken together, are to
focus on serving these purposes, though the individual regulatory
provisions under subsection (h)(1) need not each connect to all three
purposes. This interpretation is integral to establishing an effective
regulatory program, as some regulatory provisions that might be
considered under (h)(1) may be highly efficacious at addressing one of
the regulatory purposes but not address the other two, or
alternatively, may be important to support the functioning of the
regulatory program as a whole, but not be focused on any of the
specific purposes. Accordingly, this understanding of the statutory
text will support EPA's ability to develop
[[Page 82690]]
regulations that work together to help achieve the statutory purposes.
Together, the provisions in this action serve the purposes
described in (h)(1), with certain provisions more geared towards one or
two of the purposes identified in subsection (h)(1). For example, the
provisions related to leak repair in this action are directed at the
purpose of minimizing the release of a regulated substance from
equipment, but also help serve the purpose of maximizing the reclaiming
of a regulated substance. Those provisions set requirements for when
and how equipment must be serviced and leaks in equipment must be
repaired. Taking these actions will minimize the release of regulated
substances through such leaks, as the sooner a leak is found and
repaired, the less HFC will be released from that leak. Further, by
limiting the amount of regulated substances released from leaks in
equipment, the opportunity to recover and subsequently reclaim these
regulated substances increases. Thus, the provisions related to leak
repair also help serve the purpose of maximizing the reclaiming of
regulated substances.
Another example is the provisions for the installation and use of
ALD systems, which, similar to the leak repair provision, help address
the purposes articulated in subsection (h)(1). In general, ALD systems
will alert an owner or operator to leaks in refrigerant-containing
appliances well before any measurable decrease in the level of
performance of the equipment. Identifying and repairing leaks sooner as
a result of detecting the leak with an ALD system will further limit
the amount of regulated substance released from the leak and maintain
more of the regulated substance within the equipment, where it will be
available for eventual recovery and reclamation.
In addition to establishing requirements for the management of HFCs
and substitutes, this action includes provisions designed to support
enforcement and compliance, including recordkeeping and reporting. As
stated earlier in this section, subsection (k)(1)(C) of the AIM Act
states that CAA section 114 applies to the AIM Act and rules
promulgated under it as if the AIM Act were included in CAA Title VI.
Thus, CAA section 114, which provides authority to the EPA
Administrator to require recordkeeping and reporting in carrying out
provisions of the CAA, also applies to and supports this rulemaking.
These provisions and ones like them are integral to establishing an
effective regulatory program, and thus are important to the overall
efficacy of the HFC management program at achieving the purposes
articulated in subsection (h)(1), even if they may be less directly
connected to those purposes if viewed in isolation.
EPA is also establishing alternative RCRA standards for ignitable
spent refrigerants being recycled for reuse. These standards are not
part of the regulations under subsection (h)(1) of the AIM Act but
rather involve revisions to independent regulatory provisions, under a
separate and distinct statutory authority. More specifically, the
action under RCRA involves regulatory changes to 40 CFR parts 261
through 271, and those changes are made under the authority of sections
2002, 3001, 3002, 3003, 3004, 3006, and 3010 of the Solid Waste
Disposal Act of 1965 (SWDA), as amended by the Resource Conservation
and Recovery Act of 1976, as amended by the Hazardous and Solid Waste
Amendments of 1984 (HSWA). This statute is commonly referred to as
``RCRA.''
III. Background
A. What are HFCs?
HFCs are anthropogenic \15\[thinsp]fluorinated chemicals that have
no known natural sources. HFCs are used in a variety of applications
such as refrigeration and air conditioning, foam- blowing agents,
solvents, aerosols, and fire suppression. HFCs are potent greenhouse
gases (GHGs) with 100-year GWPs (a measure of the relative climatic
impact of a GHG) that can be hundreds to thousands of times more potent
than carbon dioxide (CO2).
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\15\ While the overwhelming majority of HFC production is
intentional, EPA is aware that HFC-23 can be a byproduct associated
with the production of other chemicals, including but not limited to
hydrochlorofluorocarbon (HCFC)-22.
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HFC use and emissions \16\ have been growing worldwide due to the
global phaseout of ozone-depleting substances (ODS) under the Montreal
Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol)
and the increasing use of refrigeration and air conditioning equipment
globally. HFC emissions had previously been projected to increase
substantially over the next several decades. In 2016, in Kigali,
Rwanda, countries agreed to adopt an amendment to the Montreal
Protocol, known as the Kigali Amendment, which provides for a global
phasedown of the production and consumption of HFCs. The United States
ratified the Kigali Amendment on October 31, 2022. Global adherence to
the Kigali Amendment will substantially reduce future emissions,
leading to a peaking of HFC emissions before 2040.17 18 For
additional context, EPA further notes that the G7 Climate, Energy, and
Environment ministers met in April 2024 and issued a joint declaration,
which included statements recognizing the importance of reducing non-
CO2 carbon emissions and other climate pollutants, including
HFCs, and supporting robust implementation of the Kigali Amendment.\19\
The joint declaration \20\ also included the commitment of the relevant
governments to, among other things, take concrete actions to reduce
non-CO2 emissions and promote the proper choice of
refrigerants as well as the management of HFCs throughout their
lifecycle including through leak prevention and end-of-life management
of refrigerants.
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\16\ World Meteorological Organization (WMO), Scientific
Assessment of Ozone Depletion: 2022, GAW Report No. 278, 509 pp.,
WMO, Geneva, Switzerland, 2022. Available at: https://ozone.unep.org/system/files/documents/Scientific-Assessment-of-Ozone-Depletion-2022.pdf.
\17\ Ibid.
\18\ A recent study estimated that global compliance with the
Kigali Amendment is expected to lower 2050 annual emissions by 3.0-
4.4 MMTCO2e. Guus J.M. Velders et al. Projections of
hydrofluorocarbon (HFC) emissions and the resulting global warming
based on recent trends in observed abundances and current policies.
Atmos. Chem. Phys., 22, 6087-6101, 2022. Available at: https://doi.org/10.5194/acp-22-6087-2022.
\19\ The Ministerial meeting on Climate, Energy and Environment
ends with the adoption of a joint communiqu[eacute], April 30, 2024,
available: https://www.g7italy.it/en/the-ministerial-meeting-on-climate-energy-and-environment-ends-with-the-adoption-of-a-joint-communique/.
\20\ Climate, Energy and Environment Ministers' Meeting
Communiqu[eacute], April 29-30, 2024, available: https://www.g7italy.it/wp-content/uploads/G7-Climate-Energy-Environment-Ministerial-Communique_Final.pdf.
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Atmospheric observations of most currently measured HFCs confirm
their abundances are increasing at accelerating rates. Total emissions
of HFCs increased by 23 percent from 2012 to 2016 \21\ and a further 19
percent from 2016 to 2020. The four most abundant HFCs in the
atmosphere, in GWP-weighted terms, are HFC-134a, HFC-125, HFC-23, and
HFC-143a.\22\
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\21\ World Meteorological Organization (WMO), Scientific
Assessment of Ozone Depletion: 2018, World Meteorological
Organization, Global Ozone Research and Monitoring Project--Report
No. 58, 588 pp., Geneva, Switzerland, 2018. Available at: https://ozone.unep.org/sites/default/files/2019-05/SAP-2018-Assessment-report.pdf.
\22\ WMO, 2022.
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HFCs excluding HFC-23 accounted for a radiative forcing \23\ of
0.025 W/m \2\
[[Page 82691]]
in 2016, rising to 0.037 W/m\2\ in 2020. This is an increase of nearly
a third in total HFC forcing relative to 2016. This radiative forcing
was projected to increase by an order of magnitude to 0.25 W/m\2\ by
2050.\24\ If the Kigali Amendment is fully implemented, it is expected
to reduce the future radiative forcing due to HFCs (excluding HFC-23)
to 0.13 W/m\2\ in 2050, which is a reduction of about 50 percent
compared with the radiative forcing projected in the business-as-usual
scenario of uncontrolled HFCs.\25\
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\23\ Radiative forcing is expressed in units of watts per square
meter (W/m\2\) and is defined by the IPCC as ``a measure of the
influence a factor has in altering the balance of incoming and
outgoing energy in the Earth-atmosphere system and is an index of
the importance of the factor as a potential climate change
mechanism.'' IPCC, 2007: Climate Change 2007: Synthesis Report.
Contribution of Working Groups I, II and III to the Fourth
Assessment Report of the Intergovernmental Panel on Climate Change
[Core Writing Team, Pachauri, R.K and Reisinger, A. (eds.)]. IPCC,
Geneva, Switzerland, 104 pp. https://www.ipcc.ch/report/ar4/syr.
\24\ Guus J.M. Velders, David W. Fahey, John S. Daniel, Stephen
O. Andersen, Mack McFarland, Future atmospheric abundances and
climate forcings from scenarios of global and regional
hydrofluorocarbon (HFCs) emissions, Atmospheric Environment,
doi:10.1016/j.atmosenv.2015.10.071, 2015.
\25\ Ibid.
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There are hundreds of possible HFC compounds. The 18 HFCs listed as
regulated substances by the AIM Act are some of the most commonly used
HFCs (neat and in blends) and have high impacts as measured by the
quantity of each substance emitted, multiplied by their respective
GWPs. These 18 HFCs are all saturated, meaning they have only single
bonds between their atoms, and therefore have longer atmospheric
lifetimes.
In the United States, HFCs are used primarily in refrigeration and
air conditioning equipment in homes, commercial buildings, and
industrial operations (approximately 75 percent of total HFC use in
2018) and in air conditioning in vehicles and refrigerated transport
(approximately 8 percent). Smaller amounts are used in foam products
(approximately 11 percent), aerosols (approximately 4 percent), fire
protection systems (approximately 1 percent), and solvents
(approximately 1 percent).\26\
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\26\ Calculations based on EPA's Vintaging Model, which
estimates the annual chemical emissions from industry sectors that
historically used ODS, including refrigeration and air conditioning,
foam blowing agents, solvents, aerosols, and fire suppression. The
model uses information on the market size and growth for each end-
use, as well as a history and projections of the market transition
from ODS to substitutes. The model tracks emissions of annual
``vintages'' of new equipment that enter into operation by
incorporating information on estimates of the quantity of equipment
or products sold, serviced, and retired or converted each year, and
the quantity of the compound required to manufacture, charge, and/or
maintain the equipment. Additional information on these estimates is
available in U.S. EPA, April 2016. EPA Report EPA-430-R-16-002.
Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2014.
Available at: https://www.epa.gov/ghgemissions/inventory-us-greenhouse-gas-emissions-and-sinks-1990-2014.
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EPA estimated in the Allocation Framework Rule (86 FR 55116,
October 5, 2021) as updated under the 2024 Allocation Rule (88 FR
46836, July 20, 2023), that phasing down HFC production and consumption
according to the schedule provided in the AIM Act will avoid cumulative
consumption of 3,156 million metric tons of exchange value equivalent
(MMTEVe) of HFCs in the United States for the years 2022 through 2036.
That estimate included both consumption as defined in 40 CFR 84.3--
i.e., with respect to a regulated substance, bulk production plus bulk
imports minus bulk exports--and, although not requiring AIM Act
allowances, the amount in imported products containing a regulated
substance, less the amount in exported products containing a regulated
substance. Annual avoided consumption was estimated at 42
MMTCO2e in 2022 and 282 MMTCO2e in 2036. In order
to calculate the climate benefits associated with consumption
abatement, the consumption changes were expressed in terms of emissions
reductions. EPA estimated that for the years 2022 through 2050, the HFC
phasedown will avoid emissions of 4,560 MMTCO2e of HFCs in
the United States. The annual avoided emissions are estimated at 22
MMTCO2e in the year 2022 and 171 MMTCO2e in 2036.
More information regarding these estimates is provided in the
Allocation Framework Rule RIA and the 2024 Allocation Rule RIA
Addendum, which can be found in the docket for this rulemaking.
The Agency calculated incremental avoided consumption and emissions
under the 2023 Technology Transitions Rule (88 FR 73098, October 24,
2023). HFC consumption reductions beyond those from the HFC phasedown
as stipulated in the previous paragraph ranged from 720 to 1,113
MMTCO2e for the years 2025 through 2050. EPA also estimated
that the 2023 Technology Transitions Rule will achieve an additional 83
to 876 MMTCO2e of avoided emissions over these years, 2025
through 2050. The 2023 Technology Transitions Rule RIA Addendum, as
well as the TSD, Costs and Environmental Impacts, are available in the
docket for this rulemaking.
B. How do HFCs affect public health and welfare?
Elevated concentrations of GHGs including HFCs are and have been
warming the planet, leading to changes in the Earth's climate including
changes in the frequency and intensity of heat waves, precipitation,
and extreme weather events; rising seas; and retreating snow and ice.
The changes taking place in the atmosphere as a result of the well-
documented buildup of GHGs due to human activities are changing the
climate at a pace and scale that threatens human health, society, and
the natural environment. This section provides some scientific
background on climate change to offer additional context for this
rulemaking and help the public understand the environmental impacts of
GHGs, such as HFCs. Extensive additional information on climate change
is available in the scientific assessments and Agency documents that
are briefly described in this section, as well as in the technical and
scientific information supporting them.
One of those documents is EPA's 2009 Endangerment and Cause or
Contribute Findings for Greenhouse Gases under CAA section 202(a) (74
FR 66496, December 15, 2009).\27\ In the 2009 Endangerment Finding, the
Administrator found under CAA section 202(a) that elevated atmospheric
concentrations of six key, well-mixed GHGs--CO2, methane
(CH4), nitrous oxide (N2O), HFCs,
perfluorocarbons (PFCs), and sulfur hexafluoride (SF6)--
``may reasonably be anticipated to endanger the public health and
welfare of current and future generations'' (74 FR 66523, December 15,
2009), and subsequent science and observed changes have confirmed and
strengthened the understanding and concerns regarding the climate risks
considered in the Finding. The 2009 Endangerment Finding, together with
the extensive scientific and technical evidence in the supporting
record, documented that climate change caused by human emissions of
GHGs (including HFCs) threatens the public health of the population of
the United States. It explained that by raising average temperatures,
climate change increases the likelihood of heat waves, which are
associated with increased deaths and illnesses (74 FR 66497, December
15, 2009). While climate change also likely reduces cold-related
mortality, evidence indicates that the increases in heat mortality will
be larger than the decreases in cold mortality in the United States (74
FR 66525, December 15, 2009). The 2009 Endangerment Finding further
explained that, compared with a future without climate change, climate
change is expected to increase tropospheric ozone pollution over broad
areas of the United States, including in the largest metropolitan
[[Page 82692]]
areas with the worst tropospheric ozone problems, and thereby increase
the risk of adverse effects on public health (74 FR 66525, December 15,
2009). Climate change is also expected to cause more intense hurricanes
and more frequent and intense storms of other types and heavy
precipitation, with impacts on other areas of public health, such as
the potential for increased deaths, injuries, infectious and waterborne
diseases, and stress-related disorders (74 FR 66525, December 15,
2009). Children, elderly people, and poor people are among the most
vulnerable to these climate-related health effects (74 FR 66498,
December 15, 2009).
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\27\ In describing these 2009 Findings, EPA is neither reopening
nor revisiting them.
---------------------------------------------------------------------------
The 2009 Endangerment Finding also documented, together with the
extensive scientific and technical evidence in the supporting record,
that climate change touches nearly every aspect of public welfare \28\
in the United States, including changes in water supply and quality due
to increased frequency of drought and extreme rainfall events;
increased risk of storm surge and flooding in coastal areas and land
loss due to inundation; increases in peak electricity demand and risks
to electricity infrastructure; predominantly negative consequences for
biodiversity and the provisioning of ecosystem goods and services; and
the potential for significant agricultural disruptions and crop
failures (though offset to some extent by carbon fertilization). These
impacts are also global and may exacerbate problems outside the United
States that raise humanitarian, trade, and national security issues for
the United States (74 FR 66530, December 15, 2009).
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\28\ The CAA states in section 302(h) that ``[a]ll language
referring to effects on welfare includes, but is not limited to,
effects on soils, water, crops, vegetation, manmade materials,
animals, wildlife, weather, visibility, and climate, damage to and
deterioration of property, and hazards to transportation, as well as
effects on economic values and on personal comfort and well-being,
whether caused by transformation, conversion, or combination with
other air pollutants.'' 42 U.S.C. 7602(h).
---------------------------------------------------------------------------
In 2016, the Administrator similarly issued Endangerment and Cause
or Contribute Findings for GHG emissions from aircraft under CAA
section 231(a)(2)(A) (81 FR 54422, August 15, 2016).\29\ In the 2016
Endangerment Finding, the Administrator found that the body of
scientific evidence amassed in the record for the 2009 Endangerment
Finding compellingly supported a similar endangerment finding under CAA
section 231(a)(2)(A) and also found that the science assessments
released between the 2009 and the 2016 Endangerment Findings
``strengthen and further support the judgment that GHGs in the
atmosphere may reasonably be anticipated to endanger the public health
and welfare of current and future generations'' (81 FR 54424, August
15, 2016).
---------------------------------------------------------------------------
\29\ In describing these 2016 Findings, EPA is neither reopening
nor revisiting them.
---------------------------------------------------------------------------
Since the 2016 Endangerment Finding, the climate has continued to
change, with new records being set for several climate indicators such
as global average surface temperatures, GHG concentrations, and sea
level rise. Moreover, heavy precipitation events have increased in the
Eastern United States, while agricultural and ecological drought has
increased in the Western United States, along with more intense and
larger wildfires.\30\ These and other trends are examples of the risks
discussed in the 2009 and 2016 Endangerment Findings that have already
been experienced. Additionally, major scientific assessments continue
to demonstrate advances in our understanding of the climate system and
the impacts that GHGs have on public health and welfare both for
current and future generations. According to the Intergovernmental
Panel on Climate Change's (IPCC) Sixth Assessment Report, ``it is
unequivocal that human influence has warmed the atmosphere, ocean and
land. Widespread and rapid changes in the atmosphere, ocean, cryosphere
and biosphere have occurred.'' \31\ These updated observations and
projections document the rapid rate of current and future climate
change both globally and in the United States.32 33
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\30\ An additional resource for indicators can be found at
https://www.epa.gov/climate-indicators.
\31\ IPCC, 2021: Summary for Policymakers. In: Climate Change
2021: The Physical Science Basis. Contribution of Working Group I to
the Sixth Assessment Report of the Intergovernmental Panel on
Climate Change [Masson-Delmotte, V., P. Zhai, A. Pirani, S.L.
Connors, C. P[eacute]an, S. Berger, N. Caud, Y. Chen, L. Goldfarb,
M.I. Gomis, M. Huang, K. Leitzell, E. Lonnoy, J.B.R. Matthews, T.K.
Maycock, T. Waterfield, O. Yelek[ccedil]i, R. Yu, and B. Zhou
(eds.)]. Cambridge University Press, Cambridge, United Kingdom and
New York, NY, USA, pp. 3-32, doi:10.1017/9781009157896.001.
\32\ USGCRP, 2018: Impacts, Risks, and Adaptation in the United
States: Fourth National Climate Assessment, Volume II [Reidmiller,
D.R., C.W. Avery, D.R. Easterling, K.E. Kunkel, K.L.M. Lewis, T.K.
Maycock, and B.C. Stewart (eds.)]. U.S. Global Change Research
Program, Washington, DC, USA, 1515 pp. doi: 10.7930/NCA4.2018.
Available at: https://nca2018.globalchange.gov.
\33\ IPCC, 2021.
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C. What regulatory programs addressing refrigerants has EPA already
established under the Clean Air Act?
EPA is issuing regulations that are designed to establish a
comprehensive HFC management program that serves purposes including
maximizing HFC reclamation and minimizing the release of HFCs from
equipment while coordinating these efforts with other similar programs
where appropriate. EPA has an extensive history under CAA Title VI
regulating the sectors in which HFCs and substitutes are typically
used, including where they are used as refrigerants and for other
purposes. For example, EPA has regulated stationary refrigeration and
air conditioning applications under CAA section 608, as well as MVACs
under CAA section 609, and has evaluated alternative substances for
refrigeration, air conditioning, and other uses under the Significant
New Alternatives Policy (SNAP) program under CAA section 612.
1. National Recycling and Emission Reduction Program (CAA Section 608)
CAA section 608, titled ``National Recycling and Emission Reduction
Program,'' has three main components. First, CAA section 608(a)
requires EPA to establish standards and requirements regarding the use
and disposal of class I and class II substances.\34\ The second
component, CAA section 608(b), requires that the regulations issued
pursuant to subsection (a) contain requirements for the safe disposal
of class I and class II substances. The third component, CAA section
608(c), prohibits the knowing venting, release, or disposal of ODS
refrigerants \35\ and their substitutes \36\ in the course of
maintaining, servicing, repairing, or disposing of appliances or
industrial process refrigeration (IPR). EPA refers to this third
component as the ``venting prohibition.'' CAA section 608(c)(1)
establishes the venting prohibition for ODS refrigerants effective July
1, 1992, and it includes an exemption from this prohibition for ``[d]e
minimis releases associated with good faith attempts to recapture and
recycle or safely dispose'' any such substance. CAA section 608(c)(2)
extends CAA section 608(c)(1) to substitute refrigerants, effective
November 15, 1995. CAA section 608(c)(2) also includes a provision that
allows the Administrator to exempt a substitute refrigerant from the
venting prohibition if he or she determines that such venting, release,
or disposal of a
[[Page 82693]]
substitute refrigerant ``does not pose a threat to the environment.''
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\34\ A class I or class II substance is an ozone-depleting
substance (ODS) listed at 40 CFR part 82, subpart A, appendix A or
appendix B, respectively. This document refers to class I and class
II substances collectively as ODS.
\35\ The term ``ODS refrigerant'' as used in this document
refers to any refrigerant or refrigerant blend in which one or more
of the components is a class I or class II substance.
\36\ The term ``substitute'' for the purposes of the regulations
under CAA section 608 is defined at 40 CFR 82.152.
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EPA first issued regulations under CAA section 608 on May 14, 1993
(58 FR 28660, ``1993 Rule''), to establish the national refrigerant
management program for ODS refrigerants recovered during the service,
repair, or disposal of air conditioning and refrigeration appliances.
Since then, EPA has revised these regulations, which are found at 40
CFR part 82, subpart F, (``subpart F''), through subsequent rulemakings
published between 1994 and 2020. Regulations issued under CAA section
608 include, among other things, the venting prohibition and sales
restrictions for refrigerants (40 CFR 82.154); safe disposal of
appliances (40 CFR 82.155); proper practices for the evacuation of
refrigerant from appliances (40 CFR 82.156); required practices for
appliance maintenance and leak repair (40 CFR 82.157); standards for
recovery and/or recycling equipment (40 CFR 82.158); technician and
reclaimer certification requirements (40 CFR 82.161 and 82.164,
respectively); and reporting and recordkeeping requirements (40 CFR
82.166). Appendices A through E at 40 CFR part 82, subpart F, provide,
among other things, specifications for refrigerants; performance
standards for refrigerant recovery, recycling, and/or reclaiming
equipment; and standards for becoming a certifying program for
technicians.
As it pertains to regulations under CAA section 608, EPA has used
the term ``non-exempt substitute'' to refer to non-ozone depleting
refrigerants that have not been exempted from the venting prohibition
under CAA section 608(c)(2) and 40 CFR 82.154(a) in the relevant end
use. Similarly, the term ``exempt substitute'' refers to a non-ozone
depleting refrigerant that has been exempted from the venting
prohibition under CAA section 608(c)(2) and 40 CFR 82.154(a) in the
relevant end use. A few exempt substitutes have been exempted from the
venting prohibition in all applications. Notably, in 2016, EPA updated
existing refrigerant management requirements and extended the full set
of the subpart F refrigerant management requirements, which prior to
that rule applied only to ODS refrigerants,\37\ to non-exempt
substitute refrigerants, such as HFCs and hydrofluoroolefins (HFOs).
See 81 FR 82272 (November 18, 2016), hereafter ``2016 CAA Section 608
Rule.'' Among the subpart F requirements extended to non-exempt
substitute refrigerants in the 2016 CAA Section 608 Rule were
provisions that restricted the servicing of appliances and the sale of
refrigerant to certified technicians; specified the proper evacuation
levels before opening an appliance; required the use of certified
refrigerant recovery and/or recycling equipment; required refrigerant
be recovered from appliances prior to disposal; required appliances
have a servicing aperture or process stub to facilitate refrigerant
recovery; required refrigerant reclaimers be certified to reclaim and
sell used refrigerant; and established standards for technician
certification programs, recovery equipment, and the purity of reclaimed
refrigerant. The 2016 CAA Section 608 Rule also extended the appliance
maintenance and leak repair provisions, currently codified at 40 CFR
82.157, to appliances that contain 50 or more pounds of non-exempt
substitute refrigerant. It also made numerous revisions to improve the
efficacy of the refrigerant management program as a whole, such as
revisions of regulatory provisions for increased clarity and
readability, and removal of provisions that had become obsolete.
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\37\ The only 40 CFR part 82, subpart F requirements that
applied to substitute refrigerants prior to the 2016 CAA Section 608
Rule were the venting prohibition and certain exemptions from that
prohibition, as set forth in section 82.154(a).
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After promulgation, the Agency reviewed the 2016 CAA Section 608
Rule, focusing in particular on whether the Agency had the statutory
authority to extend the full set of subpart F refrigerant management
regulations to non-exempt substitute refrigerants, such as HFCs and
HFOs. In 2018, EPA proposed to withdraw the extension of the provisions
of 40 CFR 82.157 to appliances using only non-exempt substitute
refrigerants (83 FR 49332, October 1, 2018).\38\ In 2020, EPA published
a final rule (85 FR 14150, March 11, 2020, hereafter ``2020 CAA Section
608 Rule'') withdrawing the extension of the leak repair requirements--
including requirements for repairing leaks, conducting leak
inspections, and keeping applicable records--for appliances containing
only such substitute refrigerants. Other subpart F provisions that were
extended to substitute refrigerants in the 2016 CAA Section 608 Rule,
as mentioned in the previous paragraph, were left in place for
appliances containing HFCs and other non-exempt substitute
refrigerants. There were no changes to any of the regulatory
requirements for ODS in the 2020 CAA Section 608 Rule.
---------------------------------------------------------------------------
\38\ Ozone-depleting refrigerants and appliances that contain or
use any amount of ODS continue to be subject to all applicable
subpart F requirements, including those in 40 CFR 82.157.
---------------------------------------------------------------------------
Petitions for judicial review were filed on the 2016 CAA Section
608 Rule and separately on the 2020 CAA Section 608 Rule. Two industry
coalitions, the National Environmental Development Association's Clean
Air Project (NEDA/CAP) and the Air Permitting Forum (APF), filed
petitions for judicial review of the 2016 CAA Section 608 Rule in the
U.S. Court of Appeals for the District of Columbia Circuit (D.C.
Circuit) in 2017. APF also filed an administrative petition for
reconsideration before EPA regarding the 2016 CAA Section 608 Rule.\39\
In 2020, the Natural Resources Defense Council (NRDC) and a group of
State and municipal petitioners \40\ filed petitions for judicial
review of the 2020 CAA Section 608 Rule in the D.C. Circuit. NEDA/CAP
also filed an administrative petition regarding the 2020 CAA Section
608 Rule, styled as a petition for reconsideration or in the
alternative a petition for rulemaking.\41\ These four petitions for
review were all consolidated (Case No. 20-1150, D.C. Cir.) in July of
2020, and in August of 2020 the court severed four issues raised in
NEDA/CAP and APF's administrative petitions for reconsideration and
assigned them to a different case (Case No. 20-1309, D.C. Cir.). Both
cases are now being held in abeyance.
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\39\ APF Petition for Reconsideration, January 2017, available:
https://www.regulations.gov/document?D=EPA-HQ-OAR-2015-0453-0228.
\40\ The State and municipal petitioners are the State of New
York, State of Connecticut, State of Illinois, State of Maine, State
of Maryland, State of Minnesota, State of New Jersey, State of
Oregon, Commonwealth of Virginia, State of Washington, District of
Columbia, and City of New York.
\41\ NEDA/CAP Petitions for Reconsideration/Petition for
Rulemaking, May 2020, available: https://www.regulations.gov/document?D=EPA-HQ-OAR-2017-0629-0345.
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The E.O. issued on January 20, 2021, ``Executive Order on
Protecting Public Health and the Environment and Restoring Science to
Tackle the Climate Crisis,'' directed review of certain agency actions
taken between January 20, 2017, and January 20, 2021 (86 FR 7037,
January 20, 2021). The 2020 CAA Section 608 Rule was one of the actions
subject to review. In light of this review and the Agency's
consideration of subsection (h) of the AIM Act, EPA has developed this
rulemaking, which, among other things, involves evaluating the
application of leak repair requirements to appliances using HFCs and
substitute refrigerants under subsection (h). Because this action is
rooted in EPA's authority under the AIM Act, this rulemaking does not
reopen or otherwise address the question of the authority for such
requirements under the CAA. Similarly, EPA is not reopening or
revisiting any of the regulations under CAA section 608 in this
rulemaking.
[[Page 82694]]
2. Motor Vehicle Air Conditioning Servicing Program (CAA section 609)
CAA section 609 directs EPA to issue regulations establishing
standards and requirements for the servicing of MVACs. For purposes of
the regulations implementing CAA section 609, ``motor vehicle air
conditioners'' \42\ is defined at 40 CFR 82.32(d) as mechanical vapor
compression refrigeration equipment used to cool the driver's or
passenger's compartment of any motor vehicle. This definition further
states that it is not intended to encompass certain hermetically sealed
refrigeration systems used on motor vehicles for refrigerated cargo and
the air conditioning systems on passenger buses. For purposes of the
section CAA section 609 regulations, ``motor vehicle'' is defined at 40
CFR 82.32(c) as any vehicle which is self-propelled and designed for
transporting persons or property on a street or highway, including but
not limited to passenger cars, light-duty vehicles, and heavy-duty
vehicles. This definition further provides that it does not include a
vehicle where final assembly of the vehicle has not been completed by
the original equipment manufacturer (OEM).
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\42\ A related definition for ``MVAC-like appliance'' is found
at 40 CFR 82.152: MVAC-like appliance means a mechanical vapor
compression, open-drive compressor appliance with a full charge of
20 pounds or less of refrigerant used to cool the driver's or
passenger's compartment of off-road vehicles or equipment. This
includes, but is not limited to, the air-conditioning equipment
found on agricultural or construction vehicles. This definition is
not intended to cover appliances using R-22 refrigerant.
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Under CAA section 609 and regulations that implement it, no person
repairing or servicing motor vehicles for consideration (e.g., payment
or bartering) may perform any service on an MVAC that involves the
refrigerant \43\ without properly using approved refrigerant recovery
or recovery and recycling equipment, and no such person may perform
such service for consideration unless such person has been properly
trained and certified. CAA section 609 also contains restrictions on
the sale or distribution, or offer for sale or distribution, of class I
and class II substances suitable for use as a refrigerant in MVACs in
containers of less than 20 pounds, except to a person performing
service for consideration on MVAC systems.
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\43\ Section 609(b)(1) defines the term ``refrigerant,'' ``[a]s
used in this section'', to mean ``any class I or class II substance
used in a motor vehicle air conditioner. Effective 5 years after
November 15, 1990, the term `refrigerant' shall also include any
substitute substance.'' EPA's implementing regulations include a
parallel definition of this term at 40 CFR 82.32(f).
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Regulations issued under CAA section 609, codified at 40 CFR part
82, subpart B, include, among other things, prohibited and required
practices for persons repairing and servicing MVACs for consideration
(40 CFR 82.34); requirements for refrigerant handling equipment (40 CFR
82.36); approval processes for independent standards testing
organizations (40 CFR 82.38); requirements for certifications that any
person servicing or repairing MVACs for consideration must submit to
EPA; and related recordkeeping requirements (40 CFR 82.42). Appendices
A through F at 40 CFR part 82, subpart B, provide minimum operating
requirements for equipment used for the recovery, recycling and/or
recharging of refrigerant used in MVACs.
In 1992, EPA published a rule (57 FR 31242, July 14, 1992) under
CAA section 609 establishing standards and requirements for servicing
of MVACs and restricting the sale of small containers of ODS. The
regulations, which appear in 40 CFR part 82, subpart B, require persons
who repair or service MVACs for consideration to be certified in
refrigerant recovery and recycling and to properly use approved
equipment when performing service involving the refrigerant. Consistent
with the definition in CAA section 609(b)(1), ``refrigerant'' is
defined in subpart B as any class I or class II substance used in
MVACs, and to include any substitute substance effective November 15,
1995. The 1992 CAA section 609 Rule also defined approved refrigerant
recycling equipment as equipment certified by the Administrator or an
approved organization as meeting either one of the standards in 40 CFR
82.36. Such equipment extracts and recycles refrigerant or extracts but
does not recycle refrigerant, allowing that refrigerant to be
subsequently recycled on-site or to be sent off-site for
reclamation.\44\ EPA based the regulatory equipment standards in
subpart B on those developed by the Society of Automotive Engineers
(SAE). They cover service procedures for dichlorodifluoromethane (CFC-
12 or R-12) recover/recycle equipment (SAE J1989, issued in October
1989); test procedures to evaluate R-12 recover/recycle equipment (SAE
J1990, issued in October 1989 and revised in 1991); and a purity
standard for recycled R-12 refrigerant (SAE J1991, issued in October
1989). Only equipment certified to meet the standards set forth in
appendix A at 40 CFR part 82, subpart B, or that meets the criteria for
substantially identical equipment, was approved under CAA section 609
for use in the servicing of MVACs at that time.
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\44\ Equipment that extracts and recycles refrigerant is
referred to as recover/recycle equipment. Equipment that extracts
but does not recycle refrigerant is referred to as equipment that
recovers but does not recycle refrigerant, or as recover-only
equipment.
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EPA issued another rule under CAA section 609 in 1997 (62 FR 68026,
December 30, 1997) in response to the increasing use of substitute
refrigerants, particularly 1,1,1,2-tetrafluoroethane (HFC-134a or R-
134a). The 1997 CAA Section 609 Rule established standards and
requirements for the servicing of MVACs that use any refrigerant other
than R-12. The rule also stated that refrigerant (whether R-12 or a
substitute) recovered from motor vehicles at motor vehicle disposal
facilities may be re-used in the MVAC service sector only if it has
been properly recovered and recycled by persons who are either
employees, owners, or operators of the facilities, or technicians
certified under CAA section 609, using approved equipment. This differs
from the rules established under CAA section 608, in which no person
may sell or distribute, or offer for sale or distribution, used
refrigerant (including both ODS and non-exempt substitutes such as
HFCs) unless it has first been reclaimed by a certified reclaimer (40
CFR 82.154(d)). The 1997 CAA Section 609 Rule also established
conditions under which owners and operators of motor vehicle disposal
facilities may sell refrigerant recovered from such vehicles to
technicians certified under CAA section 609.
3. Significant New Alternatives Policy Program (CAA section 612)
EPA identifies and evaluates substitutes for ODS in certain
industrial sectors, including RACHP, aerosols, and foams. To a very
large extent, HFCs are used in the same sectors and subsectors as where
ODS historically have been used. Under SNAP, EPA evaluates
acceptability of substitutes for ODS based primarily on the potential
human health and environmental risks, relative to other substances used
for the same purpose. In so doing, EPA assesses atmospheric effects
such as ozone depletion potential (ODP) and GWP, exposure assessments,
toxicity data, flammability, and other environmental impacts. This
assessment could take a wide range of forms, such as a theoretical
evaluation of the properties of the substitute, a computer simulation
of the substitute's performance in the sector or subsector, lab-scale
(table-top)
[[Page 82695]]
evaluations of the substitute, or equipment tests under various
conditions.
IV. How is EPA regulating the management of HFCs and their substitutes?
As described in the following sections, EPA is establishing an ER&R
program for the management of HFCs under subsection (h) of the AIM Act
that includes requirements regarding several topics, including leak
repair requirements for certain refrigerant-containing appliances and
installation and use of ALD systems for certain equipment; requirements
for the servicing and/or repair of certain refrigerant-containing
equipment; requirements for the servicing, repair, disposal, or
installation of fire suppression equipment that contains HFCs, with the
purpose of minimizing the release of HFCs from that equipment,
including requirements for the initial installation and servicing and/
or repair of fire suppression equipment with recycled HFCs, as well as
requirements related to technician training in the fire suppression
sector; and recovery of HFCs from disposable cylinders before
discarding. As discussed in greater detail in section X of this
preamble, EPA intends for the regulatory provisions established under
subsection (h) of the AIM Act in this final action to be able to stand
independently from one another and has designed them accordingly. For
example, the leak repair requirements for refrigerant-containing
appliances are designed to operate independently from the requirements
for servicing, repair, disposal, or installation of fire suppression
equipment.
A. What definitions is EPA implementing under subsection (h)?
EPA has operated a refrigerant management program for decades under
the CAA. More recently, EPA established regulatory programs related to
the HFC phasedown and the technology transitions provisions under the
AIM Act. Rules implementing those CAA and AIM Act programs have
included defined terms, which EPA was mindful of when proposing and
finalizing definitions for the ER&R program under subsection (h) of the
AIM Act.
The Allocation Framework Rule (86 FR 55116, October 5, 2021)
established regulatory definitions at 40 CFR part 84, subpart A to
implement the framework for phasing down HFCs under the AIM Act, with
certain revisions to the definitions section at 40 CFR 84.3 (see 88 FR
46836, July 20, 2023).\45\ Subsequently, the 2023 Technology
Transitions Rule (88 FR 73098, October 24, 2023) established additional
regulatory definitions in 40 CFR part 84, subpart B, at 40 CFR 84.52 to
implement subsection (i) of the AIM Act. To maintain consistency,
except as otherwise explained in this rule, EPA generally intends to
use terms in this rulemaking, and in the new subpart C established by
this rule, consistent with their definitions in subparts A and B, but
there may be exceptions, such as where one term has different
definitions under different subparts. The definitions under subpart A
had already been finalized when this rule was proposed. Accordingly,
consistent with the proposal, for terms not defined in subpart C but
that are defined in subpart A (40 CFR 84.3) those definitions apply. As
noted previously, EPA also considered the definitions in subpart B (40
CFR 84.52) in establishing the definitions and regulations in subpart C
but is not incorporating those definitions into subpart C, in part to
avoid potential confusion if the same term was defined differently in
subparts A and B, but not defined in subpart C. EPA is also
establishing definitions for terms that are applicable only under 40
CFR part 84, subpart C, and do not have counterparts in the definitions
under 40 CFR part 84, subparts A or B.
---------------------------------------------------------------------------
\45\ The revisions in 40 CFR 84.3 are described in EPA's
Allowance Allocation Methodology for 2024 and Later Years rule,
which was published on July 20, 2023 (88 FR 46836). That rulemaking
focuses on the second phase of the HFC phasedown and, among other
things, establishes the allocation methodology for the ``general
pool'' of HFC production and consumption allowances for 2024 through
2028. Available at: https://www.federalregister.gov/documents/2023/07/20/2023-14312/phasedown-of-hydrofluorocarbons-allowance-allocation-methodology-for-2024-and-later-years.
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Many of the terms and definitions considered in this action are
similar to those used to implement programs under CAA sections 608 and
609, with only limited changes as needed to conform with the AIM Act or
this action. EPA considered these previously defined terms, from 40 CFR
82.152 and 40 CFR 82.32, where they are used in the same or
substantially similar manner. The regulated community for these
regulations under subsection (h) and those under CAA sections 608 and
609 overlap; therefore, maintaining the same or similar definitions,
where consistent with AIM Act requirements and the purposes of this
action, facilitates implementation by those who have been using and are
familiar with these terms. Because EPA's authority under the AIM Act
extends beyond the sectors covered by 40 CFR part 82, subpart F, where
it is necessary or helpful for clarity, EPA is specifying certain
definitions that apply to the terms as they refer to refrigerant-
containing equipment or as they apply to fire suppression equipment
(see, e.g., the definition for ``disposal''). EPA may consider adding
additional subsectors in a future rulemaking and accordingly may
consider updating these definitions in the future.
1. Terms That Did Not Generate Comment and That EPA Is Finalizing as
Proposed
Many proposed definitions did not garner specific comment. For the
reasons discussed in the proposed rule, EPA is finalizing the following
terms substantively as proposed, although in some instances with minor
edits that do not alter their meaning (e.g., a non-substantive change
in a word's tense or removal of redundant language \46\):
---------------------------------------------------------------------------
\46\ EPA notes that in a few instances the proposed definition
for a term included a phrase like ``as used in this subpart'' or
``for purposes of this subpart.'' EPA is not including those phrases
in the final definitions, as the second sentence of Sec. 84.102 in
the final rule already makes clear that the definitions are for
``purposes of this subpart C.''
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Certified technician means a technician that has been certified per
the provisions at 40 CFR 82.161.
Component, as it relates to a refrigerant-containing appliance,
means a part of the refrigerant circuit within an appliance including
but not limited to compressors, condensers, evaporators, receivers, and
all of its connections and subassemblies.
Custom-built means that the industrial process refrigeration
equipment or any of its components cannot be purchased and/or installed
without being uniquely designed, fabricated, and/or assembled to
satisfy a specific set of industrial process conditions.
Fire suppression technician means any person who in the course of
servicing, repair, disposal, or installation of fire suppression
equipment could be reasonably expected to violate the integrity of the
fire suppression equipment and therefore release fire suppressants \47\
into the environment.
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\47\ As described in Section IV.F.1, EPA views the terms, ``fire
suppressants'' and ``fire suppression agents'' as interchangeable
for this rule.
---------------------------------------------------------------------------
Follow-up verification test, as it relates to a refrigerant-
containing appliance, means those tests that involve checking the
repairs to an appliance after a successful initial verification test
and after the appliance has returned to normal operating
characteristics and conditions to verify
[[Page 82696]]
that the repairs were successful. Potential methods for follow-up
verification tests include but are not limited to the use of soap
bubbles as appropriate, electronic or ultrasonic leak detectors,
pressure or vacuum tests, fluorescent dye and black light, infrared or
near infrared tests, and handheld gas detection devices.
Full charge, as it relates to a refrigerant-containing appliance,
means the amount of refrigerant required for normal operating
characteristics and conditions of the appliance as determined by using
one or a combination of the following four methods:
(1) Use of the equipment manufacturer's determination of the full
charge;
(2) Use of appropriate calculations based on component sizes,
density of refrigerant, volume of piping, and other relevant
considerations;
(3) Use of actual measurements of the amount of refrigerant added
to or evacuated from the appliance, including for seasonal variances;
and/or
(4) Use of an established range based on the best available data
regarding the normal operating characteristics and conditions for the
appliance, where the midpoint of the range will serve as the full
charge.
Initial verification test, as it relates to a refrigerant-
containing appliance, means those leak tests that are conducted after
the repair is finished to verify that a leak or leaks have been
repaired before refrigerant is added back to the appliance.
Leak inspection, as it relates to a refrigerant-containing
appliance, means the examination of an appliance to detect and
determine the location of refrigerant leaks. Potential methods include
but are not limited to ultrasonic tests, gas-imaging cameras, bubble
tests as appropriate, or the use of a leak detection device operated
and maintained according to manufacturer guidelines. Methods that
determine whether the appliance is leaking refrigerant but not the
location of a leak, such as standing pressure/vacuum decay tests, sight
glass checks, viewing receiver levels, pressure checks, and charging
charts, must be used in conjunction with methods that can determine the
location of a leak.
Leak rate, as it relates to a refrigerant-containing appliance,
means the rate at which an appliance is losing refrigerant, measured
between refrigerant charges. The leak rate is expressed in terms of the
percentage of the appliance's full charge that would be lost over a 12-
month period if the current rate of loss were to continue over that
period. The rate must be calculated using one of the following methods.
The same method must be used for all appliances subject to the leak
repair requirements located at an operating facility.
(1) Annualizing Method.
(i) Step 1. Take the number of pounds of refrigerant added to the
appliance to return it to a full charge, whether in one addition or in
multiple additions related to same leak, and divide it by the number of
pounds of refrigerant the appliance normally contains at full charge;
(ii) Step 2. Take the shorter of the number of days that have
passed since the last day refrigerant was added or 365 days and divide
that number by 365 days;
(iii) Step 3. Take the number calculated in Step 1 and divide it by
the number calculated in Step 2; and
(iv) Step 4. Multiply the number calculated in Step 3 by 100 to
calculate a percentage. This method is summarized in the following
formula:
[GRAPHIC] [TIFF OMITTED] TR11OC24.001
(2) Rolling Average Method.
(i) Step 1. Take the sum of the pounds of refrigerant added to the
appliance over the previous 365-day period (or over the period that has
passed since the last successful follow-up verification test showing
all identified leaks in the appliance were repaired, if that period is
less than one year);
(ii) Step 2. Divide the result of Step 1 by the pounds of
refrigerant the appliance normally contains at full charge; and
(iii) Step 3. Multiply the result of Step 2 by 100 to obtain a
percentage. This method is summarized in the following formula:
[GRAPHIC] [TIFF OMITTED] TR11OC24.002
EPA further notes that, as discussed in section IV.C.3 of this
preamble, owner or operators may preemptively repair leaks prior to
adding refrigerant and calculating the leak rate for a refrigerant-
containing appliance. After the completion of preemptive repair, an
owner or operator must calculate the leak rate to see if the
refrigerant-containing appliance was leaking above the applicable leak
rate threshold and complete the full suite of leak repair requirements
as described in section IV.C.3 (e.g., verification tests, leak
inspections, etc.) if the appliance was leaking above the applicable
threshold. If the refrigerant-containing appliance was found to be
leaking below the applicable leak rate threshold then no further action
is necessary after the completion of the preemptive repair.
Alternatively, an owner/operators may use the amount of refrigerant
lost in lieu of the amount of refrigerant added to calculate the leak
rate prior to adding refrigerant if they have a valid method of
determining the amount of refrigerant lost (e.g., evacuating the
appliance and comparing the amount of refrigerant evacuated to the full
charge).
Mothball, as it relates to a refrigerant-containing appliance,
means to evacuate refrigerant from an appliance, or the
[[Page 82697]]
affected isolated section or component of an appliance, to at least
atmospheric pressure, and to temporarily shut down that appliance.
Motor vehicle, means any vehicle which is self-propelled and
designed for transporting persons or property on a street or highway,
including but not limited to passenger cars, light-duty vehicles, and
heavy-duty vehicles. This definition does not include a vehicle where
final assembly of the vehicle has not been completed by the original
equipment manufacturer.
Motor vehicle air conditioner (MVAC), means mechanical vapor
compression refrigerant-containing appliances used to cool the driver's
or passenger's compartment of any motor vehicle. This definition is
intended to have the same meaning as in 40 CFR 82.32.
Normal operating characteristics and conditions, as it relates to a
refrigerant-containing appliance, means appliance operating
temperatures, pressures, fluid flows, speeds, and other
characteristics, including full charge of the appliance, that would be
expected for a given process load and ambient condition during normal
operation. Normal operating characteristics and conditions are marked
by the absence of atypical conditions affecting the operation of the
appliance.
Owner or operator, means any person who owns, leases, operates, or
controls any equipment, or who controls or supervises any practice,
process, or activity that is subject to any requirement pursuant to
this subpart.
Recycling, when referring to fire suppression or fire suppressants,
means the testing and/or reprocessing of regulated substances used in
the fire suppression sector to certain purity standards.
Refrigerant circuit, as it relates to a refrigerant-containing
appliance, means the parts of an appliance that are normally connected
to each other (or are separated only by internal valves) and are
designed to contain refrigerant.
Reprocess, means using procedures such as filtering, drying,
distillation, and other chemical procedures to remove impurities from a
regulated substance or a substitute for a regulated substance.
Retire, as it relates to a refrigerant-containing appliance, means
the removal of the refrigerant and the disassembly or impairment of the
refrigerant circuit such that the appliance as a whole is rendered
unusable by any person in the future.
Seasonal variance, as it relates to a refrigerant-containing
appliance, means the removal of refrigerant from an appliance due to a
change in ambient conditions caused by a change in season, followed by
the subsequent addition of an amount that is less than or equal to the
amount of refrigerant removed in the prior change in season, where both
the removal and addition of refrigerant occurs within one consecutive
12-month period.
Stationary refrigerant-containing equipment means refrigerant-
containing equipment, as defined in this subpart, that is not an MVAC
or MVAC-like appliance, as defined in this subpart.
EPA notes that for this definition the phrase ``motor vehicle air
conditioner'' was used in the proposed definition, but in the final
definition EPA is replacing that phrase with its abbreviation ``MVAC''
to maintain consistency with other definitions in this rule. This
change does not alter the meaning of the term.
Technician, as it relates to any person who works with refrigerant-
containing appliances, means any person who in the course of servicing,
repair, or installation of a refrigerant-containing appliance (except
MVACs) could be reasonably expected to violate the integrity of the
refrigerant circuit and therefore release refrigerants into the
environment. Technician also means any person who, in the course of
disposal of a refrigerant-containing appliance (except small appliances
as defined in 40 CFR 82.152, MVACs, and MVAC-like appliances), could be
reasonably expected to violate the integrity of the refrigerant circuit
and therefore release refrigerants from the appliance into the
environment. Activities reasonably expected to violate the integrity of
the refrigerant circuit include but are not limited to: Attaching or
detaching hoses and gauges to and from the appliance; adding or
removing refrigerant; adding or removing components; and cutting the
refrigerant line. Activities such as painting the appliance, rewiring
an external electrical circuit, replacing insulation on a length of
pipe, or tightening nuts and bolts are not reasonably expected to
violate the integrity of the refrigerant circuit. Activities conducted
on refrigerant-containing appliances that have been properly evacuated
pursuant to 40 CFR 82.156 are not reasonably expected to release
refrigerants unless the activity includes adding refrigerant to the
appliance. Technicians include but are not limited to installers,
contractor employees, in-house service personnel, and owners and/or
operators of refrigerant-containing appliances.
EPA further notes that this definition deviates slightly from the
definition of ``technician'' at 40 CFR 82.152 to conform with the AIM
Act grant of authority. EPA is also defining ``certified technician''
to make it clear that EPA is referring to persons certified per 40 CFR
82.161 for the purposes of these regulations. When specifically
referring to technicians certified under 40 CFR part 82, subpart B, the
term ``609-certified technician'' is used.
2. Terms That Received Comment or That EPA Is Modifying
This section discusses comments received on specific proposed
definitions, EPA's responses to those comments, and any changes made to
the final definitions in response to those comments. It also includes
discussion of certain modifications in the final rule to definitions
that did not receive comment as discussed previously.
Comfort cooling. EPA proposed to define this term as ``the
refrigerant-containing appliances used for air conditioning to provide
cooling in order to control heat and/or humidity in occupied facilities
including but not limited to residential, office, and commercial
buildings. Comfort cooling appliances include but are not limited to
chillers, commercial split systems, and packaged roof-top units.''
As described below, after considering public comment on this
definition, EPA is modifying its definition of ``comfort cooling'' to
include dual-function heat pumps as an additional example of the term.
Comment: One commenter requested that EPA's definition of ``comfort
cooling'' include single-function (heat only) and dual-function
(heating and cooling) heat pump appliances.
Response: EPA agrees that dual-function heat pumps are included
within the definition of ``comfort cooling'' because those appliances
provide cooling. To provide another relevant example of comfort cooling
applications, EPA is adding dual-function heat pumps to the
illustrative list of examples in the definition. EPA is not including
single-function heat pump applications as an example of an application
included in ``comfort cooling'' because EPA does not view it as fitting
within this particular category as the definition is currently drafted.
EPA may in the future consider proposing to include single-function
heat pump applications under comfort cooling or under a different
category of equipment.
Commercial refrigeration. EPA proposed this definition to mean
``the refrigerant-containing appliances used in the retail food and
cold storage warehouse subsectors. Retail food appliances include the
refrigeration equipment found in supermarkets,
[[Page 82698]]
convenience stores, restaurants and other food service establishments.
Cold storage includes the refrigeration equipment used to store meat,
produce, dairy products, and other perishable goods.''
EPA is finalizing two modifications to the proposed definition of
``commercial refrigeration.'' Both modifications involved replacing the
term ``refrigeration equipment'' in sentences two and three of the
proposed definition of the term to ``refrigeration-containing
appliance'' in the finalized term. These changes were made because
``refrigeration equipment'' is not a defined term under this subpart,
but ``refrigeration-containing appliance'' is. EPA did not receive
comment on the definition of ``commercial refrigeration.''
Disposal. EPA's proposed definition of ``disposal'' (see 88 FR
72216, 72298, October 19, 2023) applied to ``refrigerant-containing
appliances.'' This was done to maintain consistency with the definition
of ``disposal'' in 40 CFR 82.161 which applies to ``appliances.'' EPA
is finalizing a definition of disposal with two parts, with the first
part relating to ``refrigerant-containing equipment'' and the second
part relating to ``fire suppression equipment.'' Furthermore, in the
first part of the final definition EPA is using the term ``refrigerant-
containing equipment'' instead of ``refrigerant-containing appliance''
to more fully align with the regulatory definition with how the term
disposal is used under subsection (h)(1) of the AIM Act, which states
``the Administrator shall promulgate regulations to control, where
appropriate, any practice process or activity regarding servicing,
repair, disposal, or installation of equipment (emphasis added).''
``Refrigerant-containing equipment'' is broader than ``refrigerant-
containing appliance'' and includes everything covered under the
definition of ``refrigerant-containing appliance'' (e.g., any air
conditioner, MVAC, refrigerator, chiller, or freezer) while also
including refrigerant-containing components. However, the regulatory
requirements related to disposal of refrigerant-containing equipment
established in this final action at 84.106 apply to refrigerant-
containing appliances (rather than refrigerant-containing equipment),
and this change in the definition is not intended to broaden the scope
of these requirements.
EPA added a second part to the final definition of disposal to
distinguish disposal of fire suppression equipment. Since this final
rule regulates the disposal of fire suppression equipment, which may
differ from the disposal of refrigerant-containing equipment, the
Agency is specifying how the term ``disposal'' relates to fire
suppression equipment in this subpart, for greater clarity of the
regulatory provisions. This final definition of disposal is analogous
to the definition of ``disposal of halon-containing equipment'' in the
halon emissions reduction requirements at 40 CFR part 82, subpart H,
which EPA referenced in the proposal, describing its intent to propose
requirements similar to those in subpart H. The final definition
parallels the definition of disposal at 40 CFR 82.260, with the words
``fire suppression equipment'' replacing the term ``halon-containing
equipment'' to maintain consistency with regulations for the disposal
of halon-containing equipment, including halon-containing equipment
used in fire suppression applications. The revised definition can be
read in full below:
Disposal, as it relates to refrigerant-containing equipment, means
the process leading to and including:
(1) The discharge, deposit, dumping, or placing of any discarded
refrigerant-containing equipment into or on any land or water;
(2) The disassembly of any refrigerant-containing equipment for
discharge, deposit, dumping, or placing of its discarded component
parts into or on any land or water;
(3) The vandalism of any refrigerant-containing equipment such that
the refrigerant is released into the environment or would be released
into the environment if it had not been recovered prior to the
destructive activity;
(4) The disassembly of any refrigerant-containing equipment for
reuse of its component parts; or
(5) The recycling of any refrigerant-containing equipment for
scrap.
Disposal, as it relates to fire suppression equipment, means the
process leading to and including:
(1) The discharge, deposit, dumping, or placing of any fire
suppression equipment into or on any land or water;
(2) The disassembly of any fire suppression equipment for
discharge, deposit, dumping, or placing of its discarded component
parts into or on any land or water; or
(3) The disassembly of any fire suppression equipment for reuse of
its component parts.
Comment: One commenter asserted that the proposed definition of
disposal (which as originally proposed was specific to a ``refrigerant-
containing appliance'') is inconsistent with the principles of safe
disposal under 40 CFR 82.155 and with the definition of disposal under
RCRA. The commenter asserted that parts 4 and 5 of the definition
incorrectly conflate two different processes (disassembly and
recycling). The commenter further stated that since there are ``safe
disposal'' regulations at 40 CFR 82.155, it is counterproductive to
have a definition of disposal that includes principles of recycling,
because disposal and recycling are entirely different processes. The
commenter also stated that the definition of disposal under 40 CFR
82.155 and 40 CFR 84.102 is incompatible with RCRA's definition of
disposal under 40 CFR 260.10, which does not include practices of
disassembly or recycling. The commenter requested that EPA align the
proposed definition with those in 40 CFR 82 subparts B and F to
minimize complications and contradictions between these AIM Act
subsection (h) regulations and CAA title VI regulations.
Response: EPA is finalizing a definition of ``disposal,'' as it
relates to refrigerant-containing equipment, that parallels the
definition in 40 CFR 82.152. To the extent the commenter is suggesting
that the proposed definition of disposal is inconsistent with the
requirements in 82.155, EPA disagrees. Rather, the definition in 40 CFR
84.102 is analogous to the definition of disposal in 40 CFR part 82,
subpart F at 40 CFR 82.152, the safe disposal provisions also found
subpart F at 40 CFR 82.155, as 82.155 does not contain a separate
definition of ``disposal.'' To the extent this comment relates to the
requirements of or suggestions to change 82.155 or any other
regulations under CAA title VI, it is outside the scope of this
rulemaking and requires no further response.
EPA disagrees that parts 4 and 5 of the proposed definition (see at
88 FR 72216, 72298, October 19, 2023) are incorrectly conflated.
Recycling and disassembly for reuse are distinct processes under these
regulations, but they are both end-of-life practices for refrigerant-
containing equipment. The definition is intended to include a range of
end-of-life practices to ensure the requirements cover the range of
relevant activities. The commenter has not provided sufficient
rationale for why the relevant requirements under this subpart should
not apply to both disassembly and recycling. Accordingly, the Agency is
retaining both 4 and 5 in the definition as it relates to refrigerant-
containing equipment.
The definitions of recycle and disposal under RCRA are outside the
scope of this rulemaking under subsection (h) of the AIM Act and this
[[Page 82699]]
action to establish the definitions that will apply for the regulations
implementing that provision. For information on public comments on the
proposed RCRA alternative standards, and EPA's responses, please see
RCRA Alternative Standards for Ignitable Spent Refrigerants: Response
to Comments Document, available in the docket.
Equipment. EPA proposed this definition to mean ``any device that
contains, uses, detects or is otherwise connected or associated with a
regulated substance or substitute for a regulated substance, including
any refrigerant-containing appliance, component, or system.''
EPA is modifying its definition of equipment to specify that fire
suppression equipment is also included under the definition of
equipment. This revision is intended to clarify the definition by
providing another illustrative example of equipment that is included in
the definition. EPA does not view this list of examples as being
exhaustive, however as it would be unnecessarily cumbersome to list all
of the equipment that is included in the regulatory definition. For
example, while not expressly listed in the definition. EPA also
understands this definition to include direct and indirect ALD systems,
including point detection systems, are a subset of equipment because
ALD systems are devices that detect regulated substances or substitutes
for regulated substances. EPA also added the word ``to'' after the word
``connected'' to maintain consistency with other definitions that use
the phrase ``connected to.''
Fire suppression equipment. EPA's proposed definition of this term
(see 88 FR 72216, 72298, October 19, 2023) described what would be
included in the definition and also stated, among other things, that
the term would not include mission-critical military end uses and
systems used in deployable and expeditionary situations. EPA is
modifying the final definition by replacing the phrase ``mission-
critical military end uses and systems'' with ``military equipment'' to
provide greater clarity on situations in which military equipment are
exempt from certain provisions of the rule. As discussed later in this
section, EPA is amending the definition of refrigerant-containing
equipment in the same manner.
EPA intended the proposed definition to clarify that certain
military equipment would not be subject to regulatory requirements in
certain situations. The reference to ``mission-critical military end
uses and systems'' was intended to be analogous to the use of the
similar term ``mission-critical military end uses'' in 40 CFR 84.13(a).
After further reflection and consideration of the comments submitted,
the Agency has concluded that it would be clearer to separately address
the exemption for mission-critical military end uses, and that this
approach would better align with how these end-uses are treated under
other provisions of the AIM Act. Accordingly, as noted in section I.B,
EPA is also establishing an exemption from the ER&R regulations for
mission-critical military end uses, as listed at 40 CFR 84.13(a), for a
year or years for which the application receives an application-
specific allowance as defined at 40 CFR 84.3. This approach mirrors the
approach in regulations established under the 2023 Technology
Transitions Rule at 84.56(a)(2) and better aligns with the regulations
under 84.13. Given the addition of this exemption to the regulations
finalized in this rule (see 84.114(b)), there is no need to exclude
mission-critical military end uses from the definition of fire
suppression equipment. With respect to military systems used in
deployable and expeditionary situations, as stated in the proposal,
there are situations in which the unique design and use of this
equipment makes it impossible to recover fire suppression agents during
the service, repair, disposal, or installation of such equipment.
Because this rule does not define ``end uses'' or ``systems,'' EPA is
using the broader term ``equipment'' to improve understanding and
clarify its intent that no military equipment used in deployable and
expeditionary situations is subject to the regulations for fire
suppression equipment in this rule.
Comment: One commenter requested that EPA exclude individual fire
extinguishers from the definition of ``fire suppression equipment.''
Another commenter supported exempting mission-critical military end
uses from certain requirements of the rule. This commenter suggested
that EPA could improve the clarity of the rule by stating that specific
requirements (e.g., leak repair, ALD systems) do not apply to mission-
critical end uses and systems, rather than embedding the exemption in
the definitions of ``refrigerant-containing equipment'' and ``fire
suppression equipment.'' The commenter further stated that
affirmatively stating that certain requirements do not apply to
mission-critical military end uses would make this rule consistent with
the Allocation Framework Rule and would help improve compliance with
this final rule.
Response: EPA disagrees with the commenter's request to exclude
individual fire extinguishers from the definition of fire suppression
equipment. EPA has a long history under the CAA title VI regulations of
considering fire suppression as both streaming (e.g., fire
extinguishers) and total flooding applications. The commenter did not
provide sufficient rationale for changing that approach in this rule
and EPA is concerned that doing so would limit the ability of this rule
to achieve its intended purpose with respect to minimizing releases
from fire suppression equipment.
In response to the comment suggesting that EPA exempt mission-
critical military end uses from certain requirements of the rule
separate from the definition, as described above, EPA notes, that it
has created a separate exemption in these regulations for mission-
critical military end uses, as listed at 40 CFR 84.13(a), for a year or
years for which that application receives an application-specific
allowance as defined at 40 CFR 84.3. As explained above, EPA is taking
this approach, rather than listing the exemption in each specific
requirement, as that approach better aligns with the approach under
other AIM Act rules, which should ease understanding of the exemption
and facilitate implementation and compliance.
Industrial process refrigeration. EPA is finalizing this term as
proposed to mean ``complex, customized, refrigerant-containing
appliances that are directly linked to the processes used in, for
example, the chemical, pharmaceutical, petrochemical, and manufacturing
industries. This sector also includes industrial ice machines,
appliances used directly in the generation of electricity, and ice
rinks. Where one appliance is used for both industrial process
refrigeration and other applications, it will be considered industrial
process refrigeration equipment if 50 percent or more of its operating
capacity is used for industrial process refrigeration.''
Comment: One commenter stated that in the Technology Transitions
program, EPA determined appliances that cool data centers, information
technology equipment facilities (ITEFs), computer room cooling
equipment, communications rooms, and appliances associated with cooling
other spaces dedicated to maintaining the operating temperatures of
electronic devices were not IPR or comfort cooling. The commenter
further stated that under 40 CFR part 82, subpart F these refrigerant-
containing devices are comfort cooling. The commenter requested that
EPA
[[Page 82700]]
specify whether these appliances are comfort cooling or IPR. The
commenter stated that all industrial facilities have data centers or
computer rooms and need to understand how to properly sort their
appliances because this impacts leak rate repair triggers and appliance
repair time.
Response: The commenter is correct that the definition of ``comfort
cooling'' in 40 CFR part 82, subpart F codified at 40 CFR 82.152
includes appliances that cool data centers, ITEF, computer rooms,
communications rooms, and electronic devices. EPA intends for its
definition of ``industrial process refrigeration'' under these
regulations to parallel the definition within 40 CFR 82.152 as many of
these requirements established for industrial process refrigeration and
comfort cooling in this rule are analogous to those that apply under 40
CFR part 82, subpart F and EPA anticipates that using parallel
definitions will facilitate understanding of the rule's requirements
amongst regulated entities and support compliance for those entities
that already have established approaches to complying with similar
requirements for similar equipment under subpart F. Accordingly, the
appliances that cool data centers, ITEF, computer room cooling
equipment, communications rooms, and appliances associated with cooling
other spaces dedicated to maintaining the operating temperatures of
electronic devices are considered comfort cooling for purposes of the
ER&R program established in this rule.
Installation. EPA is finalizing this term as proposed to mean ``the
process of setting up equipment for use, which may include steps such
as completing the refrigerant circuit, including charging equipment
with a regulated substance or substitute for a regulated substance, or
connecting cylinders containing a regulated substance or a substitute
for a regulated substance to a total flooding fire suppression system,
such that the equipment can function and is ready for use for its
intended purpose.''
The definition of ``installation'' for purposes of the ER&R program
is broader than a definition for a similar term used in the Technology
Transitions program, which is found in 40 CFR part 84, subpart B.
Specifically, the definition for ``install'' in subpart B refers only
to the completion of a field-assembled system's circuit.
``Installation'' in this rulemaking under subsection (h) includes
processes, practices and activities related to installation of
equipment that are encompassed in the Technology Transitions program's
definitions for both ``installation'' and ``manufacture'' at 40 CFR
84.52, as well as other types of installation. EPA is establishing a
broader definition under subsection (h) to encompass the full range of
practices, processes, or activities that are relevant to the
installation of equipment that is regulated under this action, or that
may be regulated under a future rule under subsection (h). Included
under this definition of installation is the process of setting up of
ALD systems for use, because ALD systems are considered equipment under
this subpart.
Comment: One commenter stated that the activity of installation is
commonly understood to relate to physically placing equipment in a
facility or location, not to the initial charging of equipment during
manufacture nor the field charging of refrigeration systems during
construction. The commenter further maintained that read together, the
terms that Congress used in subsection (h)(1) (``servicing, repair,
disposal, or installation of equipment'') naturally refer to work
performed on the equipment, not to the design of the equipment or the
choice of which refrigerant is used in the equipment. The commenter
asserted that if Congress had intended for EPA to have the ability to
mandate what type of refrigerant is used in the equipment, it would
more naturally have listed installation first in the serialization of
activities, because installation is the first activity in the temporal
sequence, followed by servicing and repair, and ultimately disposal of
the equipment at end of life (EOL).
Another commenter stated that subsection (h)(1) contained limited
authority regarding servicing, repair, disposal, and installation of
equipment, and that the scope of any EPA regulations to implement
subsection (h)(1) must remain within these parameters. The commenter
further stated that subsection (h) does not contain any provision
concerning the ``initial'' charging of equipment prior to sale or
distribution--nor is there any specific mention in the statute of any
subsequent charging of existing equipment. The commenter also stated
that ``servicing'' was not defined in the proposed rule and that EPA
has not clarified what constitutes ``servicing'' of existing equipment,
although, charging of existing equipment could constitute
``servicing.''
Response: EPA disagrees with commenters that the term
``installation'' as used in context in subsection (h)(1) of the AIM Act
does not include the addition of refrigerant to an appliance. Read in
context, in relevant part, subsection (h) directs EPA to establish
regulations to ``control, where appropriate, any practice, process, or
activity regarding the . . . installation of equipment . . . that
involves'' an HFC or a substitute for an HFC or the reclaiming of an
HFC or a substitute for an HFC used as a refrigerant. The commenter's
overly narrow interpretation is not the best reading of this provision.
For example, it does not account for the full range of practices,
processes, or activities that are involved in installation of
equipment, and it does not recognize the scope of discretion that
subsection (h)(1) conveys to EPA. In directing EPA to regulate ``any
practice, process, or activity regarding the . . . installation of
equipment'' ``where appropriate'' Congress afforded EPA discretion to
determine what control measures are appropriate for particular
practices, processes, and activities, and also to reach practices,
processes, and activities that regard--or relate to--installation,
rather than limiting EPA to only addressing practices, processes, and
activities that occur directly during the placement of equipment on the
site. Thus, EPA interprets this provision to convey regulatory
authority that extends to a range of practices, processes, or
activities regarding installation, and that includes activities both
before and after placement on the site. From a technical perspective,
an important part of installation of equipment is to prepare it for
use, and adding refrigerant to refrigerant-containing equipment is a
critical step in preparing the equipment for use, as the equipment
cannot serve its intended use until it has been charged. Thus, charging
is part of installation, and activities related to charging of
equipment are related to the installation process and within this grant
of authority under subsection (h)(1) concerning practices, processes,
or activities regarding installation. Based on this interpretation of
the statutory text, EPA is including the charging of equipment in the
definition of ``installation'' in these regulations implementing
subsection (h)(1). EPA agrees with the commenters to the extent that
they assert that the terms that Congress used in subsection (h)(1)
(``servicing, repair, disposal, or installation of equipment'') include
work performed on the equipment, but for the reasons explained earlier
in this response, EPA disagrees that the regulatory authority under
subsection (h)(1) is limited to work performed directly on equipment.
EPA disagrees with one commenter's suggested definition of
``installation'' as it would end at mere placement of the equipment on
site and exclude work performed to
[[Page 82701]]
allow the system to function. Given that the text of subsection (h)(1)
of the AIM Act expressly provides that the regulations established are
to address practices, processes, or activities regarding the
installation of equipment ``that involves a regulated substance or a
substitute for a regulated substance,'' EPA concludes it is not
appropriate to create a definition that focuses solely on work on the
equipment and excludes work that plainly ``involves'' an HFC or
substitute for an HFC, such as charging equipment. Further the Agency
does not ascribe the same meaning to the sequencing of the terms as one
of the commenters does, and the commenter's interpretation is not the
best reading of the statutory text as it could eliminate many aspects
of installation without any indication that Congress intended for the
term to be so limited. Further, there could be other reasons that
Congress put ``installation'' at the end of the sequence. For example,
Congress may have been aware of mirroring similar provisions in CAA
section 608, such as section 608(a)(1) and (2), which convey authority
to establish regulations related to the ``service, repair, or disposal
of appliances and industrial process refrigeration.'' Congress may have
added ``installation'' at the end of the sequence because it was an
addition to the terms that were included in section 608. Accordingly,
EPA does not agree that either the interpretation of the statutory term
``installation'' or the definition of the term in the implementation of
the statutory text through the regulations should be as limited as
commenters suggest.
EPA disagrees with the comment that EPA define ``servicing'' in
this final rule. EPA did not propose to do so, in part because it
expected that the term would be understood by the regulated community
without a definition, based in part on its experience with the
regulations under CAA section 608, which addresses servicing of
appliances without defining the term, and to EPA's knowledge, that lack
of a definition has not hindered implementation of those regulations.
EPA interprets installation and servicing to have distinct meanings
under subsection (h)(1), as each is listed separately. However, EPA
understands that adding refrigerant to existing equipment may also be
part of servicing that equipment and does not intend for the inclusion
of charging equipment in the regulatory definition of installation to
suggest that adding refrigerant to equipment would only occur during
installation, but simply that it may occur as part of installation.
While EPA is not establishing a definition of servicing in this rule,
it notes that other examples of servicing may include, but are not
limited to, activities that involve the opening of the refrigerant
loop, such as charging equipment, replacing component parts, or
checking for leaks.
EPA discusses its authority for the requirements finalized in this
rule regarding installation and servicing of equipment in greater
detail in the relevant sections below.
MVAC-like appliance. EPA proposed this term to mean ``a mechanical
vapor compression, open-drive compressor refrigerant-containing
appliance with a full charge of 20 pounds or less of refrigerant used
to cool the driver's or passenger's compartment of off-road vehicles or
equipment. This includes, but is not limited to, the air-conditioning
equipment found on agricultural or construction vehicles. This
definition is intended to have the same meaning as defined in 40 CFR
82.152.''
EPA is modifying its proposed definition of ``MVAC-like appliance''
by deleting the first instance of the phrase ``or equipment'' and
changing the second instance of ``or equipment'' with ``or
appliances.'' EPA deleted the first instance of the phrase ``or
equipment'' from the definition because the use of the term
``equipment'' in this instance does not align with the definition of
``equipment'' as defined in this rulemaking. This deletion is intended
to clarify the intent of the definition, as the use of ``equipment'' in
this context of ``off-road vehicles or equipment'' could have been
confusing because it is not being used in the sense of how the term
``equipment'' is defined in these regulations. Regarding the second
instance of ``air conditioning equipment'' EPA changed this language to
``air conditioning appliances'' to better align the types of devices
that the definition of the term ``MVAC-like appliance'' covers under 40
CFR 82.152 with the types of devices covered under this rulemaking. EPA
also removed the word ``defined'' from the definition to maintain
consistency with the definition of ``motor vehicle air conditioners.''
EPA still intends the definition to have the same meaning as in 40 CFR
82.152.
Recover. EPA proposed this term to mean ``the process by which a
regulated substance, or where applicable, a substitute for a regulated
substance, is removed, in any condition, from equipment; and stored in
an external container, with or without testing or processing the
regulated substance or substitute for a regulated substance.''
EPA is modifying its definition of ``recover'' by putting the
number ``(1)'' before the phrase: ``removed, in any condition, from
equipment and'' and the number ``(2)'' before the phrase ``stored in an
external container, with or without testing or processing the regulated
substance or substitute for a regulated substance.'' EPA made this edit
to clarify the text and to more closely align its definition of
``recover'' with the corresponding definition in the Act, though the
AIM Act separates these two phrases with the letters ``(A)'' and
``(B)'' instead of ``(1)'' and ``(2).''
The term ``recover'' is defined in the AIM Act at subsection
(b)(10) as ``the process by which a regulated substance is (A) removed,
in any condition, from equipment; and (B) stored in an external
container, with or without testing or processing the regulated
substance.'' EPA proposed to extend the regulatory definition in these
regulations to include ``where applicable, substitutes for regulated
substances'' to support implementation of subsection (h)(1), which
authorizes certain regulations involving substitutes for regulated
substitutes. Substitutes for regulated substances are used in the same
applications and often the same equipment as the regulated substances
that they are being used in place of. Thus, recovering a substitute for
a regulated substance would also occur, as appropriate, during the
servicing, repair, or disposal of equipment and could be addressed by
regulations under subsection (h)(1).
Comment: One commenter stated that the term ``recover'' is
insufficiently defined under the AIM Act and indicated that this could
lead to a loophole where virgin HFCs are placed into equipment for only
a short amount of time and then labeled as recovered. Another commenter
stated that EPA should consider recovered refrigerant as refrigerant
``installed in equipment for the purpose of operating the equipment for
an extended amount of time.''
Response: EPA responds that, as noted above, subsection (b)(10) of
the AIM Act defines ``recover'' as ``the process by which a regulated
substance is (A) removed, in any condition, from equipment; and (B)
stored in an external container, with or without testing or processing
the regulated substance.'' This definition is similar to the same term
as defined in 40 CFR 82.152, which defines ``recover'' to mean ``to
remove refrigerant in any condition from an appliance and to store it
in an external container without necessarily testing or processing it
in any way.'' While charging a regulated substance into a piece of
equipment and then recovering it without allowing it to be used for its
intended purpose could be
[[Page 82702]]
a loophole, EPA has not encountered confusion around this term under
the CAA regulations at 40 CFR 82.152, and the commenters did not
provide sufficient rationale to change this aspect of the statutorily
defined term in this regulation.
The Agency however takes note of the scenario the commenter
provided as a potential means for circumventing the requirements and
views such an approach as inconsistent with the intent of the
definition. Moreover, EPA is establishing a definition of ``virgin
regulated substance'' in this rulemaking to make it clear that
introduction of a regulated substance to equipment, such as a
refrigerant-containing appliance or fire suppression equipment, solely
or primarily to convert or attempt to convert its status to a ``used''
regulated substance and circumvent the intended requirements of this
rule is not permissible. A regulated substance that has had no bona
fide use in equipment (as described in the definition for ``virgin
regulated substance'') would still be considered a virgin regulated
substance.
Refrigerant. EPA proposed this term to mean, ``for purposes of this
subpart, any substance, including blends and mixtures, consisting in
part or whole of a regulated substance or a substitute for a regulated
substance that is used for heat transfer purposes, including those that
provide a cooling effect.''
After considering comments, EPA is modifying the final definition
by replacing the phrase ``including those that provide a cooling
effect'' with the phrase ``and provides a cooling effect.'' This change
aligns with the definition of ``refrigerant'' in 40 CFR 82.152 and will
maintain a consistent understanding of the term in the ER&R program and
in the regulations under section 608 of the CAA. EPA is also removing
the phrase ``for the purposes of this subpart'' from this definition
for reasons stated in section IV.A.1 of this preamble.
Comment: One commenter asked whether heat transfer fluids that do
not provide a cooling effect are regulated under this rule. The
commenter stated that EPA's proposed definition could include heat
transfer fluids that do not provide a cooling effect, including
fluorinated heat transfer fluids (F-HTFs). The commenter indicated that
this was likely not EPA's intention, citing EPA's rulemaking 69 FR at
11946, 11957 (March 12, 2004), which excluded heat transfer fluids that
do not provide a cooling effect. The commenter further stated that F-
HTFs have never been used as a substitute for ODS, unlike regulated
substances that provide a cooling effect. The commenter provided the
following alternative definition: ``Refrigerant, for purposes of this
subpart, means any gaseous substance, including blends and mixtures,
consisting in part of or whole of a regulated substance or a substitute
for a regulated substance that is used in a heat cycle, and reversibly
undergoes a phase change from a gas to a liquid, to provide a cooling
effect.''
Response: EPA acknowledges the commenter's suggestion for an
alternative definition for the term refrigerant and in response agrees
with the commenter that F-HTFs that do not circulate through the
compressor of a system are not considered refrigerants for the purposes
of this rule. EPA has historically treated these fluids separately from
refrigerants. However, EPA notes that subsection (h)(1) of the AIM Act
is not limited to refrigerants but rather ``equipment . . . that
involves a regulated substance, or a substitute for a regulated
substance.'' This rule includes HFCs used as fire suppression agents in
fire suppression equipment and in a later rulemaking action could
include HFCs used as heat transfer fluids. Furthermore, the commenter's
alternative definition only covers vapor compression systems and not
alternative types of refrigeration systems such as non-mechanical heat-
transfer with a circulating cooler or a thermosiphon, which EPA has
included as an end-use under SNAP. For those reasons, rather than
adopting the commenters' suggested definition, EPA is modifying the
proposed definition as described above to clarify that heat transfer
fluids that do not provide a cooling effect are not included in the
definition of ``refrigerant'' established in this rule.
Refrigerant-containing appliance. EPA proposed this term to mean
``any device that contains and uses a regulated substance or substitute
for a regulated substance as a refrigerant including any air
conditioner, motor vehicle air conditioner, refrigerator, chiller, or
freezer. For a system with multiple circuits, each independent circuit
is considered a separate appliance.''
After considering comments, EPA is modifying the final definition.
First, EPA is removing the phrase ``motor vehicle air conditioner'' and
replacing it with its abbreviation ``MVAC'' to maintain consistency
with other definitions where the term ``motor vehicle air
conditioner(s)'' is abbreviated. After the term ``MVAC,'' EPA is also
adding the word ``MVAC-like appliance'' to provide another example of a
refrigerant-containing appliance. Second, EPA is replacing the phrase
``a system with multiple circuits'' to ``such devices with multiple
circuits.'' This edit is intended to increase clarity, as the term
``device'' is used in the last sentence to maintain a parallel sentence
structure with the first sentence of the definition, which uses the
term ``any device.'' The final definition also adds ``including but not
limited to,'' to clarify that air conditioners, refrigerators,
chillers, and freezers are intended as illustrative examples, but is
not an exhaustive list of all possible devices that meet the definition
of refrigerant-containing appliances under this subpart. EPA further
notes that a refrigerant-containing appliance could be of any size and
include residential, commercial, or industrial appliances.
As the term ``refrigerant-containing appliance'' is not a defined
term under the AIM Act, and as the Agency is establishing certain
regulatory requirements that apply only to refrigerant-containing
appliances in this rule, the regulatory definition is designed to
provide clarity as to what types of equipment are subject to those
requirements. EPA intends this term to be a subset of the broader
category of ``refrigerant-containing equipment'' which is also defined
in this rule as discussed below, and EPA understands that any
exclusions from the definition of ``refrigerant-containing equipment''
would necessarily also apply to refrigerant-containing appliances. EPA
notes that this definition differs from the definition of a similar
term, ``appliance,'' under CAA section 608. CAA sections 601 and 608
specified that an appliance ``is used for household or commercial
purposes,'' and that phrase also appears in the definition of
``appliance'' in 40 CFR 82.152. The AIM Act has no analogous provision;
rather subsection (h) focuses more broadly on ``equipment.''
Accordingly, EPA is not including that phrase in defining
``refrigerant-containing appliance'' for purposes of implementing
subsection (h). Similar to EPA's approach to similar equipment under
the application of title VI of the CAA (e.g., under sections CAA
sections 608 and 612), EPA is defining a ``refrigerant-containing
appliance'' to consist of an independent circuit. The independent
circuit provides the desired cooling effect, typically consisting of a
compressor, condenser, evaporator, and metering device in an enclosed
refrigerant loop. EPA notes that a given piece refrigerant-containing
equipment could contain multiple independent circuits and thus be
considered as multiple, separate ``refrigerant-containing appliances.''
For
[[Page 82703]]
instance, some food retail cases have been made with multiple
independent circuits, each one containing the maximum 150-gram charge
limit of propane, thus allowing a single case to address a higher
refrigeration load.
Comment: One commenter recommended that EPA define each independent
closed loop circuit as a separate appliance, citing confusion caused by
different usage of the term ``appliance'' by the industry.
Response: EPA agrees that each independent closed loop circuit is a
separate appliance and has clarified the final definition, as described
above.
Refrigerant-containing equipment. EPA proposed this term to mean
``equipment that contains, uses, or is otherwise connected or
associated with a regulated substance or substitute for a regulated
substance that is used as a refrigerant. This definition includes
refrigerant-containing components, refrigerant-containing appliances,
and MVAC-like appliances. This term does not include mission-critical
military end uses and systems used in deployable and expeditionary
situations. This term also does not include space vehicles as defined
in 40 CFR 84.3.''
EPA is modifying the final definition by replacing the phrase
``mission-critical military end uses and systems'' with ``military
equipment.'' EPA also added the word ``to'' after the word
``connected'' to maintain consistency with other definitions that use
the phrase ``connected to.'' Finally, EPA is removing the phrase
``MVAC-like appliances'' from the definition because ``MVAC-like
appliances'' are examples of refrigeration-containing appliances. As
such, keeping the term in the definition would be extraneous.
As finalized, this definition of ``refrigerant-containing
equipment'' does not include military equipment used in deployable and
expeditionary applications, nor does it include space vehicles. These
exclusions are based on EPA's understanding that there are situations
in which the unique design and use of military equipment used in
deployable and expeditionary situations and space vehicles make it
impossible to recover refrigerant during the service, repair, disposal,
or installation of the equipment. Likewise, requiring adherence to the
leak repair requirements and other provisions for refrigerant-
containing equipment in this rulemaking in an active military zone of
engagement, including military systems used in deployable and
expeditionary situations, could lessen the military effectiveness of
the equipment. Similarly, the exclusion for space vehicles is based on
EPA's understanding that requiring leak repair and other provisions in
this rulemaking for such equipment could lessen their effectiveness.
EPA notes that an identical exclusion for military equipment and space
vehicles was made in the finalized definition of ``fire suppression
equipment.'' Further, as noted in section I.B and-explained in greater
detail in the discussion of the definition for ``fire suppression
equipment'' above, while EPA replaced the phrase ``mission-critical
military end uses and systems'' with ``military equipment'' in this
definition, this final rule also includes a separate exemption from the
ER&R regulations for mission-critical military end uses (as listed at
40 CFR 84.13(a)), for a year or years for which the application
receives an application-specific allowance as defined at 40 CFR 84.3.
Comment: One commenter stated that the proposed rule creates
confusion by having separate definitions for equipment, refrigerant-
containing appliance, and refrigerant-containing equipment. The
commenter stated that EPA's definition of ``refrigerant-containing
appliance'' would have been sufficient for all the instances in which
``equipment'' or ``refrigerant-containing equipment'' were used, and
that EPA should only finalize a definition for ``refrigerant-containing
appliance,'' and rename it ``refrigerant-containing equipment'' to be
consistent with subsection (h) of the AIM Act.
Response: EPA disagrees with this comment, as the terms
``equipment,'' ``refrigerant-containing equipment,'' and ``refrigerant-
containing appliance'' are not used interchangeably in the rule.
Rather, these three definitions are intended to have distinct meanings.
For example, ``refrigerant-containing equipment'' is a broader category
that includes applications that are not covered under ``refrigerant-
containing appliance.'' For example, ``refrigerant-containing
equipment'' includes refrigerant-containing components, whereas the
definition of ``refrigerant-containing appliance'' does not.
``Equipment'' is an even broader category that includes both equipment
that does and equipment that does not contain refrigerant. For example,
fire suppression equipment is included in the definition of equipment
but not the definition of ``refrigerant-containing equipment.''
Different requirements apply to different types of equipment under the
regulations established in this final rule. Given these distinctions,
EPA is retaining all three of these definitions in the final rule.
Repair. EPA proposed this term to mean, ``for purposes of this
subpart and as it relates to a particular leak in a refrigerant-
containing appliance, to mean making adjustments or other alterations
to that refrigerant-containing appliance that have the effect of
stopping leakage of refrigerant from that particular leak.''
EPA is modifying this term by removing the phrase ``for the
purposes of this subpart'' from this definition for reasons stated in
section IV.A.1 of this preamble.
Comment: One commenter expressed support for EPA's proposed
definition of repair and the discussion of the purpose of repair in the
preamble of the proposed rule.
Response: After considering comments, EPA is finalizing the
definition of ``repair'' as proposed, though EPA is deleting the phrase
``for purposes of this subpart'' from the definition.
Retrofit. EPA proposed this definition, as it relates to a
refrigerant-containing appliance, to mean ``to convert an appliance
from one refrigerant to another refrigerant. Retrofitting includes the
conversion of the appliance to achieve system compatibility with the
new refrigerant and may include, but is not limited to, changes in
lubricants, gaskets, filters, driers, valves, o-rings, or appliance
components. Retrofits required under this subpart shall be done to a
refrigerant with a lower-GWP.''
EPA is modifying the final definition by removing the last sentence
requiring that retrofits be done with a refrigerant with a lower-GWP.
The proposed definition was meant to prevent the retrofit of
refrigerant-containing appliances to a higher-GWP refrigerant as a
compliance option. EPA decided in this final rule to not require the
retrofit of an appliance to a lower-GWP refrigerant. The Agency
acknowledges that there are situations where retrofitting to a lower-
GWP refrigerant may not be feasible, such as when there is an
inadequate supply of lower-GWP refrigerant or when technical standards
do not allow the retrofit from a non-flammable refrigerant to a
flammable refrigerant. Some appliances may have a limited number of
lower-GWP alternatives, making it more difficult to retrofit a system
to meet leak repair requirements. While the owner of a refrigerant-
containing appliance has other ways to meet leak repair requirements,
such as sufficiently repairing leaks or retiring the system, EPA does
not want to limit the number of compliance options by prohibiting the
retrofit of an appliance to a higher-GWP refrigerant. EPA emphasizes
that it still encourages the retrofit of systems to
[[Page 82704]]
lower-GWP refrigerants whenever possible.
Comment: A few commenters were opposed to a requirement that
retrofits always be to a refrigerant with a lower-GWP. One commenter
stated that requiring retrofits to only lower-GWP refrigerants would
produce logistical challenges, create supply constraints, and increase
costs. Another commenter stated that EPA should avoid discouraging
retrofits from refrigerants like R-22, R-404A, and R-507A to lower-GWP
alternatives that still exceed the GWP limits in the 2023 Technology
Transitions Rule (R-448, R-449, R-427, R-407H, and R-407A for
commercial and industrial). The commenter stated that transitioning
from R-404A to lower-GWP options will benefit the HFC phasedown. One
commenter supported EPA retaining its definition to require retrofits
to low-GWP refrigerants and stated that requiring retrofit plans to use
lower-GWP refrigerants is consistent with the phasedown and the intent
of the AIM Act and may help mitigate ongoing leakage that may occur
after the retrofit is completed.
Response: EPA acknowledges these comments both supporting and
opposing the proposed definition. After consideration of these
comments, for the reasons discussed above in describing the
modifications to the proposed definition in the final definition, EPA
is not requiring that retrofits use lower-GWP refrigerants in this
final rule. As noted above, while not requiring it, EPA encourages the
retrofit of refrigerant-containing appliances to lower-GWP refrigerants
whenever possible. With respect to the comments related to the
restrictions established in the 2023 Technology Transitions Rule, EPA
notes that rule did not address retrofits and that rule applies only to
new systems (including for refrigerant-containing appliances).
Additionally, with respect to the comment that requiring retrofits to
lower-GWP refrigerants may help mitigate ongoing leakage after the
retrofit is complete, EPA notes that 40 CFR 84.106(h)(4) requires that
all leaks be repaired as part of any retrofit plan, which should also
ameliorate concerns about ongoing leakage related to the retrofit.
Regarding the intent of the Act, the commenter did not provide any
rationale to support the position that the intent of the AIM Act was to
require retrofits to use lower-GWP refrigerants. EPA further notes that
the AIM Act does not expressly address whether a lower-GWP refrigerant
should be used for retrofits, and for the reasons explained above, EPA
has decided not to establish that requirement in this rule.
Substitute for a regulated substance. EPA is finalizing this
definition as proposed to mean ``a substance that can be used in
equipment in the same or similar applications as a regulated substance,
to serve the same or a similar purpose, including but not limited to a
substance used as a refrigerant in a refrigerant-containing appliance
or as a fire suppressant in fire suppression equipment, provided that
the substance is not a regulated substance or an ozone-depleting
substance.''
Subsection (h)(1) expressly authorized EPA to promulgate certain
regulations involving a regulated substance, a substitute for a
regulated substance, the reclaiming of a regulated substance used as a
refrigerant, or the reclaiming of a substitute for a regulated
substance used as a refrigerant. EPA is defining ``substitute for a
regulated substance'' in this subpart for additional clarity that the
use of this term in subsection (h) and in the regulations established
in this rule differs from how the term ``substitute'' is used in
subsection (i) and defined in 40 CFR part 84, subpart B.\48\ The
definition under subsection (h) makes clear that substitutes do not
include HFCs or ODS and are instead a different category of substances.
Examples of a substitute for a regulated substance that are encompassed
by this definition under subsection (h) include but are not limited to
HFOs, hydrocarbons (e.g., propane, isobutane), ammonia
(NH4), and CO2. A substitute for a regulated
substance may be used neat or in a blend. However, a blend that
contains a regulated substance is subject to the requirements that
apply under this rule to regulated substances because those
requirements apply to regulated substances regardless of whether the
regulated substance is used neat or in a blend, as described above in
section II.B of this preamble.
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\48\ The definition for substitute in the 2023 Technology
Transitions Rule is: ``any substance, blend, or alternative
manufacturing process, whether existing or new, that may be used, or
is intended for use, in a sector or subsector with a restriction on
the use of regulated substances and that has a lower global warming
potential than the GWP limit or restricted list of regulated
substances and blends in that sector or subsector.'' Under this
definition, substitutes include regulated substances (e.g., HFC-32
used in lieu of R-410A in commercial unitary AC), blends containing
regulated substances (e.g., R-454B used in lieu of R-410A in
residential unitary AC), blends that do not use a regulated
substance (e.g., R-441A used in lieu of R-410A in window ACs),
substances that are not HFCs (e.g., HFOs, hydrocarbons, R-717, and
R-744 (CO2)), and not-in-kind technologies (e.g., finger-
pump bottles in lieu of aerosol cans, or vacuum panels in lieu of
foam insulation). (See 88 FR 73098, 73110, October 24, 2023).
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This distinction between substitutes and regulated substances for
purposes of these regulations is also helpful for implementing certain
provisions of this rulemaking that apply differently to regulated
substances than to substitutes for regulated substances. For instance,
the leak repair requirements apply to all regulated substances but only
apply to substitutes for a regulated substance with a GWP greater than
53.
As noted in the Executive Summary of this preamble at section I.A,
the terms ``HFC'' and ``regulated substance'' are used interchangeably
in this preamble. Similarly, the term ``substitute for an HFC'' may be
used interchangeably with ``substitute for a regulated substance'' in
this preamble.
Comment: One commenter requested further clarification of the
definition. The commenter stated that the definition of ``regulated
substance'' in 40 CFR 84.106(a)(1) is easy to understand unlike the
definition in 40 CFR 84.106(a)(2). The commenter highlighted the
complexity of determining the GWP of a substitute for a regulated
substance, because the proposed methodology involved consulting three
separate references that may vary in accessibility. The commenter
requested that EPA provide a list of all substitutes for regulated
substances with a GWP greater than 53, and that the Agency should not
list substitutes for regulated substances with a GWP of less than 53,
as doing so contributes to confusion.
Response: EPA responds that to the extent the commenter read the
proposed regulations at 40 CFR 84.106(a)(1) and (2) as definitions,
that interpretation misunderstands the intent of those provisions,
which are designed to describe the applicability of the requirements in
40 CFR 84.106, not provide general definitions. To the extent the
commenter intended to request the addition of definitions, EPA responds
that subsection (c)(1) of the AIM Act lists regulated substances for
the purpose of this and other rulemakings under the AIM Act, such as
the Allocation Framework Rule (86 FR 55116, October 5, 2021) and the
2023 Technology Transitions Rule (88 FR 73098, October 24, 2023). The
term ``regulated substance'' is defined in part 84, subpart A (40 CFR
84.3), with a current list provided in appendix A to part 84, and this
appendix applies to the whole of part 84, including subpart C.
Accordingly, EPA concludes it is not necessary to again list the
regulated substances with a GWP greater than 53 in this action. While
subsection (c)(3)(A) of the AIM Act authorizes the Administrator to
designate as a regulated substance a substance that is not included in
the list in subsection (c)(1) if certain criteria are met, EPA did
[[Page 82705]]
not propose to add any regulated substance to the statutory list, and
is not finalizing any addition. To the extent the commenter opposes
such a listing, EPA finds that concern is beyond the scope of this
rulemaking and thus requires no further response.
In response to the commenter's statements about the complexity of
consulting multiple sources to determine the GWP of a substitute for a
regulated substance, EPA notes that as described in section IV.C.1 of
this preamble, the Agency is not finalizing the methodology to
determine GWP of a substitute for a regulated substance, as proposed.
EPA is instead finalizing the provisions to use a list of GWPs for
various substitutes for regulated substances codified in the 2023
Technology Transitions Rule at 40 CFR 84.64. EPA is taking this
approach because it agrees that having these GWPs in one concise list
will limit confusion and enhance accessibility.
Virgin regulated substance. EPA proposed this definition to mean
``any regulated substance that has not had any bona fide use in
equipment except for those regulated substances contained in the heel
or the residue of a container that has bona fide use in the servicing,
repair, or installation of equipment.''
EPA is modifying the final definition by removing the phrase
``except for those regulated substances contained in the heel or the
residue of a container that has bona fide use in the servicing, repair,
or installation of equipment.''
EPA's proposed definition of ``virgin regulated substance''
excluded refrigerant heels because EPA wanted to include refrigerant
heels recovered from a container as recovered material for purposes of
meeting the reclamation standard. However, EPA concluded that
refrigerant heels are best described as ``virgin regulated substances''
because refrigerant heels have not had a bona fide use in equipment.
EPA still recognizes the value of recovered heels, and thus EPA is not
counting refrigerant heels that are removed from containers to
contribute towards the 15 percent virgin material limit discussed in
section IV.E.1 of this preamble.
The final definition of ``virgin regulated substance'' makes it
clear that the introduction of a regulated substance to equipment, such
as a refrigerant-containing appliance or fire suppression equipment,
solely to convert its status to a ``used'' regulated substance and
circumvent the intended requirements of this rulemaking is not
permissible. This scenario, where a regulated substance is charged into
equipment and subsequently recovered without any bona fide use, was
brought to EPA's attention by stakeholders including during public
stakeholder meetings as the Agency developed this rulemaking.\49\ This
issue was also raised in public comments on the proposed rule, as
indicated in the comments summarized immediately below. Under the
definition finalized in this rule, a regulated substance that has had
no bona fide use in equipment would be considered a virgin regulated
substance.
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\49\ EPA held stakeholder meetings for public input on November
9, 2022, and March 16, 2023, and also solicited feedback through a
webinar for EPA's GreenChill Partnership program on April 12, 2023.
---------------------------------------------------------------------------
Comment: One commenter stated it is arbitrary and capricious to
limit the definition of ``virgin regulated substance'' to refrigerant
without a ``bona fide use'' in equipment because EPA does not define
``bona fide use'' and offers a limited explanation of the term. While
the commenter agreed that only refrigerant that was used in an
appliance for its intended purpose should qualify as recovered
refrigerant, the commenter stated that it is not clear who the
compliance obligation to make this determination of ``bona fide use''
falls on. The commenter further stated that the heel or residue of a
container should not by default be considered ``virgin'' on the basis
that it had a bona fide use, but instead be categorized based on the
nature of its origin.
Multiple commenters requested that EPA define ``bona fide use.''
One commenter stated that EPA should define a minimum length of time
that refrigerant can be in equipment or some other objective criteria
before it has had a ``bona fide use.'' Another commenter stated that
the term ``bona fide use'' has never been used in any definition of
reclaim or reclamation either under title VI of the CAA, the AIM Act,
or under the Air-Conditioning, Heating, and Refrigeration Institute's
(AHRI) 700 standard for reclamation, and that EPA provides no
justification for using the term. Two commenters stated that it is
unclear how EPA will determine whether refrigerant has had a ``bona
fide use.'' One commenter claimed that not having a precise definition
of ``bona fide use'' will undermine the refrigeration industry and lead
to fraud, since entities could briefly pass refrigerant through
chillers or other equipment and then remove it, process it, and send it
out for ``AHRI 700 certification.'' Lastly, one commenter stated that
it is necessary to specify the use conditions from which refrigerant
can be recovered in order to consider them reclaimed. The commenter
asserted this would help avoid the ``potential laundering of newly
produced material into the reclamation market.''
A few commenters recommended that EPA distinguish between virgin
refrigerant and recovered heel. One commenter requested that EPA define
heel as ``the residual amount of any regulated substance in a
disposable cylinder.'' The commenter stated that residual amounts of
regulated substances left in a disposable cylinder that has not had a
bona fide use in equipment should be considered a ``virgin regulated
substance'' whereas any residual amounts left in a disposable cylinder
that has had a bona fide use in servicing, repair, or installation
should be considered a recoverable substance for reclaim. The commenter
remarked that these definitions should only apply to disposable
cylinders and not other types of containers, as those heels are
properly accounted for as virgin gas. Another commenter suggested the
recovered heel should be considered in the context of cylinders rather
than containers to avoid gaming the system of recovering from larger
containers. Two commenters asserted that EPA should define heel based
on how the refrigerant was used or obtained, not on the type of
container the refrigerant is in. A commenter gave an example of
refrigerant left in an International Organization for Standardization
tank or rail car. The commenter stated that under EPA's proposed
definition of ``virgin regulated substance,'' all of the unused
refrigerant in these containers would need to be considered a ``heel''
and have to be reclaimed even though the refrigerant would still have
the properties of virgin refrigerant. Another commenter discussed the
possibility of large quantities of refrigerant being sent to a
reclaimer as ``bona fide heel'' and asked for clarification on whether
a bona fide heel could include the entire contents of a container. One
commenter requested that the words ``heel'' and ``residue'' both be
defined as ``the vapor contents remaining in a container once the last
drop of liquid has been removed.''
Response: EPA disagrees that limiting the definition of ``virgin
regulated substances'' to refrigerant that has not had a ``bona fide
use'' in equipment is arbitrary and capricious and, after considering
the comments on this topic, is finalizing a definition of ``virgin
regulated substance'' to mean ``any regulated substance that has not
had any bona fide use in equipment.'' Commenters did not provide
alternate definitions or approaches that would sufficiently address the
concerns raised by commenters and stakeholders that
[[Page 82706]]
entities could briefly pass refrigerant through equipment and claim the
refrigerant was recovered. After considering the public input on this
issue, the Agency concludes that it is important to finalize a
definition of ``virgin regulated substance'' that indicates that virgin
refrigerant is refrigerant that has not had bona fide use in equipment
to address these concerns and help ensure the integrity of the
reclamation requirements. In response to the comment on compliance
obligation, EPA notes there is no obligation to make a determination of
bona fide use under the definition itself; however, the definition
informs compliance with other regulatory obligations, and to determine
the compliance obligation one would need to examine the relevant
regulatory requirement.
While EPA is not finalizing a definition for ``bona fide use'' in
this rule, the Agency notes that at a minimum, refrigerant that has had
a ``bona fide use'' is refrigerant that has been used in equipment to
transfer heat between materials and then recovered for the purposes of
reclamation or disposal. It is EPA's position that there is no set
amount of time that a refrigerant should be used in a system before it
is considered to have had a ``bona fide use.'' Since there are a
diverse range of applications in which refrigerants are used, and a
variety of circumstances around that use, it is not appropriate to
define a specific timeframe that applies for all refrigerants and
applications. However, the amount of time refrigerant is used and other
circumstances surrounding its use should together indicate that the use
was for purposes of the equipment's maintenance or operation, rather
than for the purpose of converting or attempting to convert the HFC's
status to a ``used'' regulated substance and circumvent the
requirements of this rule. Examples of ``bona fide use'' of refrigerant
in equipment include, but are not limited to, refrigerant recovered
from equipment once the refrigerant becomes contaminated, or
refrigerant removed from an appliance due to changes in ambient
conditions according to the provisions of seasonal variance in 40 CFR
82.152. Conversely, as indicated previously, passing a regulated
substance through equipment and then recovering without an operational
reason to do so (e.g., without an indication of contamination or
equipment malfunction), for the purpose of this treating the regulated
substance as used, would not be considered bona fide use under this
definition.''
Even assuming the comments that the term ``bona fide use'' has not
been used previously in other rulemakings or regulatory texts under CAA
title VI or the AIM Act is true, EPA does not believe that is a reason
to not use the term here. EPA's justification for using the term is to
differentiate ``virgin regulated substances'' from those substances
that have been used in equipment for their intended purposes and should
no longer be considered virgin refrigerant. Some commenters expressed
concern with the definition of recovery because there is the potential
that virgin regulated substances would be charged into equipment or
appliances and then recovered in an attempt to circumvent regulatory
requirements established under this rule. EPA responds that the Agency
considers the definition of ``virgin regulated substance'' for the
purposes of these regulations under subsection (h) to address those
concerns and reiterates that adding refrigerant to an appliance for the
purpose of recovering it shortly thereafter, and then considering it
``used'' is not considered ``bona fide use.''
EPA did not propose and is not establishing a definition for
residue or establishing various definitions for heel based on different
types of containers. While in the Economic Impact and Benefits TSD EPA
estimates an average refrigerant heel at a specific percent of a
container's nominal capacity, EPA acknowledges that there may be
variations in the amount of HFCs that remain in a container.
The definition of ``heel'' in 40 CFR 84.3 to mean ``the amount of a
regulated substance that remains in a container after it is discharged
or off-loaded (that is no more than 10 percent of the volume of the
container)'' applies to this rulemaking, as EPA is adopting definitions
from 40 CFR part 84, subpart A for terms that are not separately
defined in this rule. EPA clarifies that the heel could never be
considered to include more than 10 percent of the container. EPA is not
differentiating between refrigerant heels in different types of
containers in this rulemaking to maximize the reclamation of
refrigerant heel, except to clarify that the ten percent limit applies
regardless of the type of container.
In response to comments about whether refrigerant should be
classified by the nature of its origin, EPA notes that it is
distinguishing refrigerant by its prior use, not the type of container
it is in. As stated previously, refrigerant that has had bona fide use
in equipment would be considered recovered material, whereas
refrigerant that has not had a bona fide use in equipment would not be
considered recovered. In response to the comment suggesting that EPA
not specify that refrigerant heel or residue must include only vapor
contents in this rulemaking, EPA has decided not to include such a
specification, as the Agency understands that there may be situations
where refrigerant heel is not entirely vapor, even if the amount of
refrigerant heel remaining in the container is less than 10 percent of
the container's volume.
3. What additional comments did EPA receive on definitions?
Some commenters suggested that EPA create defined terms that the
Agency did not propose. Those terms are: reclaim, saturated
hydrofluorocarbon, regulated substance, substitute, essential use,
narrowed use limit, and technology transitions petition. For the
reasons discussed in this section, EPA is not establishing definitions
for these terms in this action.
Reclaim: Multiple commenters requested that EPA define ``reclaim''
or a phrase containing the word ``reclaim'' to improve the clarity of
the rule. One commenter claimed that reclaimed refrigerant referred to
in 40 CFR 84.112(e) may be refrigerant that either has ``not had bona
fide use in equipment'' or recovered refrigerant (removed from
equipment), and that these requirements are not interchangeable because
recovered material could be virgin. The commenter asserted that EPA
should clarify that reclaimed refrigerant must be non-virgin in origin.
Another commenter suggested that EPA could consider instituting a
policy in which the amount of material that can be sold by an entity as
reclaimed cannot exceed material recovered. Another commenter suggested
that EPA should define ``certified reclaimed refrigerant'' as ``used
(recovered) refrigerant . . . from a previously operational appliance''
in line with the California Air Resources Board (CARB) definition.
Response: Subsection (b)(9) of the AIM Act provides a statutory
definition for ``reclaim; reclamation.'' This definition refers to the
reprocessing of a recovered regulated substance to meet at least the
purity described in standard AHRI 700-2016 (or an appropriate successor
standard adopted by the Administrator), and that the purity of the
reclaimed regulated substances must be verified using, at a minimum,
the analytical method described in that standard. EPA promulgated a
definition
[[Page 82707]]
for ``reclaim'' in the Allocation Framework Rule (86 FR 55116, October
5, 2021) that is consistent with the definition provided by the AIM Act
and that appears in 40 CFR 84.3. As provided in the regulations
established in the final rule, for terms not defined in subpart C but
that are defined in section 84.3, the definitions in section 84.3 shall
apply, because the definition in 84.3 is also appropriate for the rule.
EPA is not establishing a separate or different definition of
``reclaim'' in this action. This approach has the further benefit of
providing consistency in the use of this term in this action with how
it is used in other regulations implementing the AIM Act. Regarding the
suggested definition of ``certified reclaimed refrigerant,'' EPA notes
that CARB's definition of that term includes practices meant to ensure
that reclaimed refrigerant meets certain standards (such as being from
a previously operational appliance).\50\ EPA is not finalizing a
definition of ``certified reclaimed refrigerant,'' nor is EPA providing
a definition specifying what standards reclaimed refrigerants have to
meet beyond what is already required under the AIM Act. In provisions
that appear outside of the definition section of the regulations
established in this final rule, EPA is requiring that refrigerant
contain no more than 15 percent virgin material as specified in the
reclamation standard found in 40 CFR 84.112(a) and that reclaimed
refrigerant must meet AHRI standards or other applicable purity
specifications. Because these provisions address the standards that
would apply for reclaimed refrigerant, EPA concludes that the
definitions such as those suggested by the commenters are not
necessary. As indicated by these requirements, to the extent that the
comments suggest that reclaimed refrigerant cannot include any virgin
HFCs, EPA disagrees. EPA further explains its reasons for allowing up
to 15 percent virgin material in refrigerant that meets the reclamation
standards established in the rule in section IV.E.1 of this preamble.
EPA disagrees with the comment that a reclaimer should not be able to
sell more reclaimed refrigerant than the amount of recovered
refrigerant it received. Reclaimers often will hold recovered
refrigerant until there is a sufficient quantity to process efficiently
or until a change in market conditions. Therefore, the amount reported
as reclaimed will not align with, and could potentially exceed, the
amount reported as received.
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\50\ Cal. Code Regs. Tit. 17, section 95373.
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Saturated hydrofluorocarbon: One commenter requested that EPA
define ``saturated'' as it relates to a hydrofluorocarbon refrigerant
and use that term throughout the rulemaking. Response: EPA disagrees
that there is a need to use or define the term ``saturated
hydrofluorocarbon'' for purposes of this action. As described
previously, subsection (c)(1) of the AIM Act lists 18 saturated HFCs,
and by reference any of their isomers not so listed, that are covered
by the statute's provisions, referred to as ``regulated substances.''
EPA is also authorized to designate additional substances that meet
certain criteria as regulated substances and one of those criteria is
that the substance must be a saturated HFC. Further, the term
``regulated substance'' is defined in part 84, subpart A (40 CFR 84.3),
with a current list provided in Appendix A to part 84, and this
appendix applies to all of part 84 including subpart C. EPA has also
explained that it is using the terms HFC and regulated substances
interchangeably in this action. These provisions make clear which HFCs
are addressed by this action, obviating any need to define
``saturated'' by regulation or use the term ``saturated
hydrofluorocarbon'' throughout the regulations established in this
rule.
Comment: One commenter asserted that the rule should define the
terms ``regulated substance,'' ``substitute,'' ``essential use,''
``narrowed use limit,'' and ``technology transitions petition.'' The
commenter stated that these terms are important to understand the scope
and applicability of the HFC phasedown program, and not defining these
terms could create confusion and inconsistency in interpreting the
rule.
Response: The terms ``essential use,'' ``regulated substance,''
``narrowed use limit,'' ``substitute,'' and ``technology transitions
petition'' appear to be similar to or the same as terms used in other
regulatory programs under the AIM Act or the CAA. For example, the
terms ``essential use'' and ``regulated substance'' are defined under
the Allowance Allocation program (40 CFR part 84, subpart A),
``narrowed use limit'' is defined under SNAP (40 CFR part 82, subpart
G), and ``substitute'' and ``technology transitions petition'' are
defined under the Technology Transitions program (40 CFR part 84,
subpart B), respectively. The commenter has not explained what
relevance such terms would have to this rulemaking and, with the
exception of the term ``regulated substance'' which is used in the
regulations finalized in this action, the connection is not apparent to
EPA. With respect to the term ``regulated substance,'' as explained
earlier in this section, because EPA is not defining that term
separately in subpart C, the definition under 40 CFR 84.3 also applies
in subpart C. No additional definition is needed. EPA further notes
that while it is not establishing a definition for ``substitute'' in
this rule, it is defining the term ``substitute for a regulated
substance'' for purposes of the regulation, for the reasons discussed
in section IV.A.2 of this preamble.
B. What types of equipment is EPA addressing under subsection (h)?
Subsection (h) of the AIM Act provides EPA authority to promulgate
regulations to control, where appropriate, any practice, process, or
activity related to the servicing, repair, disposal, or installation of
equipment that involves HFCs or their substitutes, or the reclaiming of
HFCs or their substitutes used as refrigerants. EPA interprets this
provision to include authority to regulate, as appropriate, practices,
processes, or activities related to any equipment that uses a regulated
substance or a substitute for a regulated substance. Regulated
substances and their substitutes are typically used in RACHP equipment
as a refrigerant. Regulated substances and/or their substitutes may
also be used in other types of equipment, such as equipment used in
aerosols, fire suppression, solvent cleaning, foam blowing, and others.
However, as explained in section II.B of this preamble, subsection
(h)(4) of the AIM Act expressly provides that any rulemaking under
subsection (h) shall not apply to a regulated substance or a substitute
for a regulated substance that is contained in a foam. Thus, this
rulemaking did not propose and is not finalizing any requirements for
regulated substances or their substitutes when they are contained in
foams. Accordingly, EPA interprets its authority under subsection (h)
to include promulgating regulations that control the types of
practices, processes, or activities identified in subsection (h)(1) in
any of those sectors, subsectors, or applications, with the limitation
that EPA does not interpret its regulatory authority under subsection
(h) to extend to HFCs or substitutes for HFCs when they are contained
in foams.
EPA is establishing requirements for the servicing, repair,
disposal, and/or installation of equipment in the RACHP and fire
suppression sectors as described in sections IV.C through G of this
preamble. EPA interprets subsection (h) to provide authority that could
be applied to practices, processes, or activities related to equipment
across a broad range of sectors, subsectors, or applications that
involve regulated substances and/or their substitutes. At
[[Page 82708]]
this time, EPA is focusing on certain sectors and subsectors in the
requirements finalized in this rulemaking. In future rulemakings, EPA
may consider establishing requirements for equipment in other sectors,
subsectors, or applications that involve regulated substances and/or
their substitutes. The relevant sections of this preamble describe the
requirements that EPA is establishing for equipment in certain sectors
and subsectors and how EPA understands these sectors and subsectors as
relevant for these requirements.
Where EPA is establishing requirements for certain sectors or
subsectors, we intend to be consistent with how those sectors or
subsectors are understood under other provisions of the AIM Act and/or
CAA title VI that address the same sector or subsector, such as
subsection (i) of the AIM Act, through the Technology Transitions
program. EPA issued a final Technology Transitions Rule on October 24,
2023 (88 FR 73098), which provides additional detail on many of the
same sectors and subsectors for which this action finalizes certain
requirements under subsection (h). EPA also considered how those
sectors or subsectors are addressed in the 2023 Technology Transitions
Rule in finalizing this rule under subsection (h) of the AIM Act.
EPA is establishing certain provisions, as described later in this
preamble, for certain equipment in applicable subsectors within the
RACHP sector in this action. Such subsectors within the RACHP sector
include: supermarket systems; refrigerated transport; and automatic
commercial ice makers.\51\ EPA is also establishing certain provisions
for equipment in the fire suppression sector, as described later in
this preamble.
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\51\ In other actions by EPA, such as the 2023 Technology
Transitions Rule or rulemakings and/or notices under the SNAP
program, EPA refers to this subsector as ``automatic commercial ice
machines'' or ``commercial ice machines,'' respectively. EPA is
clarifying that in this rulemaking, we intend for the term
``automatic commercial ice makers'' to cover the same types of
refrigerant-containing equipment as those covered under ``automatic
commercial ice machines'' in the 2023 Technology Transitions Rule or
those covered as ``commercial ice machines'' under SNAP.
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C. How is EPA addressing leak repair?
EPA is finalizing aspects of the proposed leak repair requirements,
with modifications after consideration of the comments and information
received on the proposed rule, as discussed in further detail in the
following sections. The Agency is finalizing leak repair requirements
for refrigerant-containing appliances with a charge size of 15 pounds
or more that contain an HFC or substitute for an HFC with a GWP greater
than 53. In the proposal, EPA bifurcated its compliance dates based on
charge size, with refrigerant-containing appliances containing 50
pounds or more needing to comply within 60 days of publication in the
Federal Register and refrigerant-containing appliances between 15 and
50 pounds having a compliance date of one year after publication in the
Federal Register. In this final rule, after consideration of the
comments, EPA is establishing one compliance date for all applicable
appliances: January 1, 2026. The Agency views this change as reasonable
to provide additional time for owners or operators with an appliance
with a charge size of 50 pounds or more to comply with the leak repair
requirements and avoid potential confusion due to varied compliance
dates. Additionally, EPA is finalizing the narrow exemption of
refrigerant-containing appliances in the residential and light
commercial air conditioning and heat pumps subsector from the leak
repair provisions in this final rule.
1. What refrigerants are subject to the leak repair requirements?
EPA is finalizing, as proposed, that the leak repair requirements
apply to certain appliances that contain refrigerants that are composed
in whole or in part of either a regulated substance or a substitute for
a regulated substance with a GWP greater than 53, for reasons discussed
in the proposal and in this final rule. To determine if the refrigerant
contains a regulated substance, the owner or operator should consult
the list of regulated substances provided in appendix A to 40 CFR part
84.\52\ In the proposed rule, to determine whether an appliance
containing a substitute for a regulated substance is required to comply
with the leak repair provisions, EPA described the process for
determining the GWP of regulated substances and/or their substitutes in
the proposed Technology Transitions Rule (87 FR 76738, 76750, December
15, 2022). In the 2023 Technology Transitions Rule, published in the
Federal Register on October 24, 2023 (88 FR 73098), EPA established a
table listing the GWP values for substances that are not regulated
substances. In this final rule, EPA is adopting the same approach for
determining GWPs for those substances as in the final 2023 Technology
Transitions Rule, codified at 40 CFR part 84, subpart B (40 CFR
84.64(a)-(c)) and, for consistency, is referencing the table at 40 CFR
84.64(b) for determining the GWPs of the listed commonly used non-HFC
constituents. For purposes of this rulemaking, owners or operators
should use the GWPs listed in that table to determine if the
refrigerant contains a substitute for an HFC with a GWP greater than
53.
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\52\ This list currently matches the list of regulated
substances in subsection (c) of the AIM Act.
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Comment: The Agency received multiple comments on the refrigerants
subject to the leak repair provisions, including comments opposing a
limit of 53 GWP for substitutes of HFCs. Some commenters suggested the
Agency use a more generic value such as 100 or 150 to be consistent
with the 2023 Technology Transitions Rule's approach. Another commenter
expressed support for EPA's continued use of 100-year GWPs for the
implementation and administration of provisions under the AIM Act and
stated that they oppose the use of 20-year GWPs for the implementation
of AIM Act rules. Finally, one commenter described issues with the
proposal's resources to determine the GWPs of constituent parts of
refrigerant blends or commonly used refrigerant alternatives. The
commenter suggests that EPA compile a singular comprehensive list
encompassing all substitute substances for GWPs exceeding 53.
Additionally, the commenter stated that there is no reason to provide
reference to substances with GWPs less than 53 to avoid confusion as
these substitutes are not subject to this regulation.
Response: In response to these comments, EPA notes that it is
finalizing, as proposed, that the leak repair requirements apply to
refrigerant-containing appliances containing an HFC refrigerant or a
substitute for HFC refrigerants that has a GWP above 53. EPA
acknowledges comments seeking consistency across programs for GWP
limits and finds it appropriate to continue to use 100-year GWPs for
this rulemaking given the AIM Act uses 100-year GWPs. As discussed in
the 2023 Technology Transitions Rule, the final limits in that rule
were informed by a range of information, including the petitions, the
Agency's evaluation consistent with the factors identified in
subsection (i)(4) of the AIM Act, and comments received on that rule.
Those considerations do not apply to this rulemaking, which is being
undertaken under a different statutory provision and which establishes
requirements that apply to certain substitutes for HFCs. As stated in
the proposed rule under subsection (h), the GWP of 53 for substitutes
for HFCs was chosen, given it is the lowest GWP of the HFCs that could
be listed as a regulated substance
[[Page 82709]]
under subsection (c)(3)(A)(i)(II) of the AIM Act. For purposes of this
rulemaking, the Agency concludes it appropriate to parallel this
statutory provision for the GWPs of the substances that could be
designated as regulated substances under the Act. Regardless of GWP,
any refrigerant that contains an HFC is covered under the leak repair
provisions. Using a GWP of 53 for substitutes maintains consistency
between the HFCs and their substitutes that are regulated under this
rule under subsection (h). Moreover, the Agency notes that currently
the vast majority of HFC refrigerants and refrigerant blends containing
HFCs in equipment have much higher GWPs, often 20 to 50, or even more
than 75 times as high as this cutoff. The Agency is aware of one HFC
blend, IKON-A, currently in use for IPR which has a GWP below 53.
However, the inclusion of a regulated HFC in the refrigerant blend
means that any refrigerant-containing appliances using this blend are
subject to the leak repair provisions of this final rule. In the
future, EPA may find similar blends acceptable to use in specific
applications, under other regulatory programs, but their applicability
for the leak repair provisions of this final rule is subject to whether
a blend contains an HFC or a substitute with a GWP greater than 53, not
the GWP of the blend overall. Additionally, EPA acknowledges that over
time the refrigerant market is likely to shift, particularly in light
of the HFC phasedown under both the AIM Act and Montreal Protocol, the
2023 Technology Transitions Rule, and business decisions to use
refrigerants that do not contain HFCs or a substitute with a GWP above
53.
EPA is establishing a lower-GWP threshold for the leak repair
requirements in this final rule than it established under the 2023
Technology Transitions Rule for the use of an HFC in certain new
equipment. EPA considers this lower threshold to be appropriate given
the different goals of these regulations. One purpose for regulations
under subsection (h), including the leak repair requirements, is
minimizing releases of regulated substances from equipment. The 2023
Technology Transitions Rule was focused on restricting the use of
higher-GWP HFCs in new equipment. Equipment that is compliant with the
subsection (i) requirements may still be regulated under subsection (h)
to minimize releases of HFCs from the equipment. Using a GWP of 53 as
the cutoff under these regulations will address the release of
substitutes with potentially comparable climate impacts to that of
substances that are or could be listed as regulated substances.
Further, if EPA were to establish a higher-GWP as the threshold, such
as 150 or 700, that could create an incentive to switch to a substitute
with a GWP greater than 53 but below that 150 or 700 GWP cut off to
avoid a need to comply with leak repair requirements, even though those
substitutes could have greater climate impact if released than some
listed regulated substances.
Regarding the comments related to how to determine the GWP of
substitutes, EPA responds that in the final rule, EPA has streamlined
the process for owners or operators to determine the GWP of HFCs or
substitutes for HFCs. An owner or operator can view GWP values for
regulated substances by consulting the table in appendix A to 40 CFR
part 84. Owners or operators can consult the table at 40 CFR 84.64(b)
for determining the GWPs of listed commonly used non-HFC constituents
to determine if the refrigerant contains substitute for an HFC with a
GWP greater than 53. The list at 40 CFR 84.64(b) contains substitutes
with GWPs less than 53 for purposes of the regulations under subpart B,
but EPA disagrees that their inclusion would create confusion, as the
regulatory text established in this rulemaking is clear that this list
is being consulted for purposes of the subpart C regulations to
determine whether a refrigerant contains a regulated substance with a
GWP greater than 53.
Comment: Two commenters stated that EPA should consider safety
aspects (e.g., toxicity, flammability) of particular substances when
deciding whether to apply the leak repair provisions, adding that
subsection (h) specifically directs the Agency to ensure the safety of
technicians and consumers. One commenter asked the Agency to consider
whether a system is in direct or indirect contact with building
occupants and charge size in its determination around applicability,
rather than solely basing mandates on GWP. One of the commenters stated
that the 53 GWP limit would drive more use of HFC-152, which the
commenter claims is not a viable refrigerant and has historically been
used agriculturally as a rodenticide.
The same commenter also requested that the Agency consider the
provisions for leak repair under the parameters of safety and
performance. The commenter specifically highlighted environmental
concerns regarding the toxicity of fluorinated hydrocarbons that
contain per- and polyfluoroalkyl substances (PFAS) and degrade into
trifluoracetic acid (TFA). They suggested that the Agency require leak
repair of systems with a charge size of 50 or more pounds for any HFCs,
HFOs, or hydrochlorofluoroolefins (HCFOs) if the decomposition of said
substance decomposes into TFA at levels greater than a 10 percent
yield. The commenter used HFO-1234yf as an example, which produces
byproduct yields of TFA greater than 10 percent.
Response: With respect to the comment suggesting that EPA consider
performance as a parameter for these regulations, EPA notes that the
statutory text under subsection (h)(1) does not mention consideration
of performance as a separate parameter in establishing regulations
under this provision. Further, the commenter did not provide any
supporting analysis or technical information to explain why it would be
useful to consider performance as a parameter in establishing the leak
repair requirements, or how doing so might affect the final rule.
Nothing in the comment suggests that performance of refrigerant-
containing appliances would be negatively affected by this final rule
or that this rule would prevent an owner or operator from addressing
performance issues as appropriate. Thus, the Agency is not using
performance as a separate parameter in establishing the final rule's
leak repair requirements. Additionally, the Agency is aware that leaky
equipment can have performance issues, and following the requirements
in this rule may also have the effect of helping address those issues.
With respect to comments on safety, The Agency agrees that
subsection (h)(1) of the AIM Act identifies ensuring the safety of
technicians and consumers as one of the purposes for regulations under
this subsection. EPA has a long history of screening the risks of ODS,
HFCs, and their substitutes under SNAP, which for decades has provided
a list of acceptable alternatives for a number of sectors. EPA does not
view the GWP threshold, and the applicable refrigerants covered in the
final rulemaking, as a significant safety risk to technicians and
consumers if the refrigerants are properly managed. Refrigerants used
in appliances have been thoroughly screened for risks associated with
toxicity, flammability, asphyxiation, and physical hazards before being
listed as acceptable for use under SNAP's comparative risk framework.
While some refrigerants may be mildly flammable (e.g., A2L
refrigerants) or have toxicity (e.g., ammonia), proper system design,
engineering controls, and other
[[Page 82710]]
techniques mitigate the risk for the use of refrigerants in appliances.
EPA also notes the existence of other regulations that address the
risks related to specific compounds, like ammonia (e.g., EPA's Risk
Management Program under the CAA). EPA disagrees with one commenter's
suggestion to base the applicability of the leak repair requirements on
whether the appliance is in direct or indirect contact with building
occupants or other suggested factors (e.g., toxicity). The commenter
has not persuasively explained why such an approach would better serve
the goals of ensuring the safety of technicians and consumers than
having the leak repair requirements apply to equipment regardless of
whether it is in direct or indirect contact with building occupants (or
technicians and consumers, for that matter), particularly considering
the rigorous evaluation of refrigerants under SNAP's comparative risk
framework and other regulations addressing potential health and safety
concerns. It is also not clear how such an approach would serve other
statutory goals for regulations under subsection (h)(1) such as
maximizing reclamation and minimizing releases of HFCs from equipment.
Considering all three purposes, EPA concludes that it is appropriate to
apply the leak repair requirements to equipment that is in both direct
and indirect contact with consumers. With respect to the comment
suggestion that EPA consider charge size in determining applicability
of the leak repair provisions, EPA has considered charge size, as
discussed in section IV.C.2 of this preamble. In response to one
commenter's specific concern with HFC-152, the Agency responds that we
are not aware of any use of HFC-152 in the RACHP sector in the United
States. Further, as HFC-152 is a listed regulated substance, if it were
used in refrigerants, the leak repair requirements would apply; thus,
EPA disagrees that the GWP threshold of 53 for substitutes for HFCs
would drive additional use of HFC-152. However, EPA is aware of
significant use of HFC-152a with a GWP of 124, which is also a
regulated substance and above the 53 GWP threshold.
EPA acknowledges the concerns one commenter raised regarding PFAS.
There is currently no single commonly agreed definition of PFAS, and
whether HFCs, HFOs, or HCFOs are classified as PFAS depends on the
definition being used. EPA's PFAS roadmap sets timelines for specific
actions and outlines EPA's commitments to new policies to safeguard
public health, protect the environment, and hold polluters
accountable.\53\ This rule does not in any way establish a definition
of PFAS, nor do the leak repair or other requirements in this final
rule depend on a specific definition. As previously stated, SNAP
already considers potential risks to human health and the environment
via its comparative risk framework. Regardless of what definition of
PFAS is used, not all PFAS are the same in terms of toxicity, for
example. If a chemical has been found to present lower overall risk to
human health or the environment, it might be found acceptable under
SNAP regardless of whether or not it falls under a particular
definition of PFAS. Potential risks to human health or the environment
regarding PFAS have been considered directly on a chemical-by-chemical
basis and are not based on whether a specific chemical falls into a
particular category of substances. Therefore, EPA elected in this final
rule to require leak repair for all refrigerants that contain an HFC or
an HFC substitute with a GWP greater than 53, without regard to whether
or not the substance falls within a particular definition of PFAS.
Under that approach, regulated entities are not required to use any
particular HFC or HFC substitute, and the approach inherently permits
equipment owners and operators to make decisions about what
refrigerants are appropriate for use in their particular equipment.
---------------------------------------------------------------------------
\53\ Available at https://www.epa.gov/pfas.
---------------------------------------------------------------------------
Regarding the commenter's related concern regarding atmospheric
decomposition of certain HFCs, HFOs, and HCFOs to TFA, EPA notes that
TFA is a perfluorinated acid. Where TFA has been included in a
particular definition of PFAS, it is often part of a class of chemicals
containing more than 4,730 substances. According to the Montreal
Protocol's Environmental Effects Assessment Panel (EEAP) \54\ about 256
PFAS are in commercial use, with widely differing physical, chemical,
and biological properties.\55\ The 2022 EEAP Assessment Report
\56\[thinsp]explained that one source of TFA in the environment is the
degradation of some HFCs, HCFCs, HFOs, and HCFOs, while other potential
sources of TFA include geogenic sources; effluents and releases from
the manufacture of fluorinated chemicals; combustion and degradation of
fluorinated chemicals in commercial and household waste; and biological
and environmental degradation of chemicals such as certain
pharmaceuticals and pesticides. The 2022 EEAP Assessment Report
indicates that while TFA ``is unlikely to cause adverse effects in
terrestrial and aquatic organisms, [continued] monitoring and
assessment are nevertheless advised due to uncertainties in the
deposition of TFA and its potential effects on marine organisms.'' The
report notes that ``TFA does not bioaccumulate nor is it toxic at the
low to moderate exposures currently measured in the environment or
those predicted in the distant future.'' It further explains that
because the HCFCs and HFCs are long-lived in the atmosphere, they
distribute globally, and TFA from these substances is more evenly
deposited. The HFOs and HCFOs have shorter lifetimes in the atmosphere,
and deposition of TFA from these substances is likely to be more
localized. This will result in greater concentrations near the
locations of release. These greater concentrations are unlikely to
present a risk to humans or the environment in these locations, but
changes in concentration in surface water (or soil) would respond
rapidly to releases. The 2022 Assessment EEAP Report states,
``[monitoring] of the environment for residues of TFA would provide an
early warning if trends in concentration indicate rapid increases.''
EPA reiterates that the SNAP program considers ecotoxicity as a
criterion when evaluating alternatives under its comparative risk
framework and has considered the potential impacts of TFA in past
actions where SNAP found HFO-1234yf acceptable in certain end uses. The
myriad studies EPA referenced in those actions all concluded that the
additional TFA from HFO-1234yf did not pose a significant additional
risk, even if it were assumed to be used as the only refrigerant in all
refrigeration and air conditioning equipment (76 FR 17492-17493, March
29, 2011). The Agency intends to continue its approach to evaluating
the potential risks from TFA in the future. However, in light of this
scientific and technical information regarding the potential impacts of
TFA from releases of HFCs, HCFCs, HFOs, and HCFOs, EPA does not agree
that it is necessary to apply the leak repair requirements based on
whether a refrigerant decomposes into TFA at levels greater than a 10
percent yield.
---------------------------------------------------------------------------
\54\ The EEAP is an advisory body to the Montreal Protocol
Parties that evaluates the consequences of stratospheric ozone
depletion and additional areas of potential importance to the
Montreal Protocol.
\55\ UNEP. 2022 Assessment Report of the Environmental Effects
Assessment Panel. Available at: https://ozone.unep.org/system/files/documents/EEAP-2022-Assessment-Report-May2023.pdf.
\56\ Ibid.
---------------------------------------------------------------------------
Comment: Some commenters stated that the leak repair provisions
should apply to substitutes regardless of GWP as this would result in
decreasing
[[Page 82711]]
refrigerant emissions. One commenter suggested that the Agency omit the
GWP threshold for ``non-natural'' (i.e., fluorinated) substitute
refrigerants. One commenter did not express an opinion on the proposed
GWP limit of 53 but appreciated that the Agency could extend beyond a
GWP of 53 in the future.
Response: EPA acknowledges that in the future the Agency could
consider whether a GWP limit lower than 53 is appropriate. One of the
purposes stated in the AIM Act for regulations under subsection (h) is
minimizing releases of regulated substances from equipment, and the 53
GWP threshold in this final rule parallels the lowest listed GWP of
regulated substances in the AIM Act. Given the range of refrigerants
currently in use that have a variety of properties and characteristics
(including a wide range of GWPs), EPA concludes that it is appropriate
to use a GWP of 53 as the threshold for substitutes for HFCs that would
be subject to leak repair requirements in this rulemaking, as that will
address the release of substitutes with potentially comparable climate
impacts to that of substances that are or could be listed as regulated
substances, regardless of whether that substance is a fluorinated
substitute. Further, non-HFC refrigerant substitutes below the 53 GWP
threshold do not have commensurate climate impacts on HFCs or their
covered substitutes. Therefore, EPA finds it is appropriate to not
establish leak repair requirements for non-HFC substitutes with a GWP
below 53 at this time. If EPA becomes aware of concerns related to this
limitation as the refrigerant market shifts to lower-GWP substitutes
for HFCs, EPA could consider revisiting the requirement via a notice-
and-comment rulemaking. By finalizing a GWP threshold of 53, as well as
the provision to include refrigerant blends with any HFCs as components
regardless of their GWPs, EPA is not precluding further consideration
of a lower-GWP threshold in the future.
The Agency is finalizing leak repair requirements for appliances
that use a refrigerant blend that contains an ODS and an HFC or a
substitute for an HFC with a GWP greater than 53 to simultaneously meet
the leak repair provisions promulgated under CAA section 608 at 40 CFR
82.157, and the provisions in this action, to the extent that either
set of requirements is applicable. EPA intends for the leak repair
requirements in this rulemaking to be sufficiently consistent with the
requirements at 40 CFR 82.157 such that both sets of requirements could
be met for refrigerant-containing appliances that use a refrigerant
blend containing an ODS and an HFC or a substitute for an HFC with a
GWP above 53 and that have a full charge of 50 or more pounds of
refrigerant. Due to the difference in charge sizes for equipment
covered by 40 CFR 82.157 and the leak repair requirements finalized in
this action, such appliances using such a refrigerant blend with a
charge size of 15 pounds or higher but below 50 pounds are only subject
to the requirements under subsection (h).
Comment: One commenter stated that the proposed requirements for
owners and operators with an appliance using both ODS and HFCs were
unnecessarily burdensome. The commenter expressed the view that any
differences with the 40 CFR 82.157 ODS requirements (e.g., leak rate
calculations, lowering the proposed threshold for chronically leaking
appliances) would significantly increase the complexity and burden of
requirements. Another commenter requested clarification on the types of
appliances containing ODS that would be subject to the leak repair
provisions. The commenter posited two scenarios. One would imply that
all appliances containing only ODS refrigerant are exempt from the
provisions of the rule, and the other would imply that appliances
regulated by 40 CFR part 82, subpart F are excluded from this rule's
leak repair requirements. One commenter stated that having the
requirements be consistent with those for ODS would make it easier for
the many end users who are already required to comply with ODS
substance requirements.
Response: EPA acknowledges that where appropriate, consistent leak
repair requirements could smooth implementation of both programs. As
described in this section, the conclusion that refrigerant-containing
appliances using a refrigerant blend containing an ODS and an HFC or a
substitute for an HFC with a GWP greater than 53 is subject to leak
repair requirements under both CAA section 608 and subsection (h) of
the AIM Act is the result of how applicability is determined for these
provisions. EPA intends for the leak repair requirements in this
rulemaking to be sufficiently consistent with the requirements under
CAA section 608 such that both set sets of requirements could be met
for refrigerant-containing appliances using an ODS/HFC blend. The
Agency did not reopen the requirements promulgated under CAA section
608, codified at 40 CFR part 82, subpart F, in its proposed rule under
subsection (h) of the AIM Act and is not amending those regulations in
this final rule, including the applicability provisions through this
action. Thus, those provisions continue to apply for appliances using a
refrigerant that contains an ODS with a full charge of 50 or more
pounds of refrigerant.
In consideration of (h)(3), which authorizes EPA to coordinate with
other similar EPA regulations, including the extensive experience in
implementing leak repair requirements under CAA section 608 codified at
40 CFR 82.157, EPA is finalizing many provisions that are identical or
similar to those in 40 CFR 82.157. Examples include the methodology for
determining the leak rate, the timing for repairs, and verification
tests. One notable difference between the regulatory requirements under
CAA section 608 and subsection (h) of the AIM Act is the applicable
charge size, which is discussed in section IV.C.2 of this preamble. The
similarities in these requirements should facilitate compliance with
both sets of requirements where both apply. Accordingly, EPA does not
agree with the comments that complying with the ODS and HFC leak repair
provisions simultaneously would be unduly burdensome. Furthermore, the
commenters did not provide sufficient data to support this statement or
to allow EPA to fully evaluate commenter's claims of undue burden and
other potential approaches to addressing such burden. The grants of
authority under CAA section 608 and subsection (h) of the AIM Act are
not identical, and more than 30 years have passed since the issuance of
the initial regulations under CAA section 608. Therefore, in some
instances, this final rule does differ from the CAA section 608
regulations. EPA is not establishing an exemption from the requirements
in this rule for equipment that is subject to the requirements under 40
CFR part 82, subpart F, because, if such equipment also contains an HFC
or a substitute for an HFC with a GWP above 53, it is appropriate for
it to comply with the leak repair requirements under subsection (h)(1).
This approach ensures that such equipment is subject to requirements
designed to meet the direction under and the particular statutory
purposes identified in subsection (h), such as maximizing reclaim and
minimizing releases of HFCs from equipment.
To address one commenter's request for clarity on the overlap of
leak repair requirements for appliances containing ODS and HFCs and
their substitutes, EPA reiterates that owners and operators would only
need to comply with the leak repair provisions under both 40 CFR part
82, subpart F and 40
[[Page 82712]]
CFR part 84, subpart C if the refrigerant-containing appliance uses a
refrigerant containing ODS and an HFC or HFC substitute with a GWP
greater than 53. If an appliance uses a refrigerant that solely
contains ODS (and meets the other applicability criteria), it is
subject to 40 CFR part 82, subpart F leak repair requirements, but not
the leak repair requirements under this final rule. Conversely, if an
appliance solely contains an HFC or HFC substitute with a GWP greater
than 53 (and meets the other applicability criteria) the owner will
need to comply with the leak repair provisions in this final rule, but
not the leak repair requirements in 40 CFR 82.157. EPA is not aware of
any widespread use of ODS/HFC blends. However, to the extent such
blends are in use, requirements under the CAA title VI regulations and
the CAA itself restrict use of ODS in new and existing equipment, thus
further limiting the likelihood of one appliance being subject to the
two sets of leak repair requirements.
2. Appliances with what charge size are subject to the leak repair
requirements?
EPA is finalizing that, with certain exceptions, appliances with a
charge size of 15 pounds or more of refrigerant that contains a
regulated substance or a substitute for a regulated substance with a
GWP greater than 53 are subject to the leak repair requirements under
subsection (h) of the AIM Act, for reasons discussed in the proposal
and in this final rule. This establishes a lower threshold than in the
regulations established under CAA section 608 nearly 30 years ago. As
discussed in the proposal, applying the leak repair requirements to
more equipment will reduce the release of HFCs from equipment and
increase the amount of HFCs that will be available for recovery and
reclamation because of avoided releases of HFCs from leaks. The AIM Act
provides a schedule for a phasedown of HFCs, as opposed to the phaseout
of ODS under the CAA. Therefore, there may be continued introduction of
HFC-containing appliances indefinitely, which is a notable difference
from the restrictions on ODS under the CAA. As described more fully in
section II.B of this preamble, subsection (h)(1) of the AIM Act tasks
the Agency with promulgating ``regulations to control, where
appropriate,'' certain practices, processes, or activities for certain
purposes, including minimizing the release of regulated substances from
equipment and maximizing the reclamation of regulated substances. As
described previously, the phrase ``where appropriate'' in subsection
(h)(1) provides EPA with discretion to reasonably determine how the
regulations under subsection (h)(1) will apply, including by making
determinations about the charge size threshold of equipment that is
subject to the leak repair requirements. In exercising its discretion
under this provision, EPA has taken a number of considerations into
account, such as: the text of subsection (h)(1) including the statutory
purposes identified in that provision; the anticipated effectiveness of
the requirements under consideration in serving those purposes; the
intent of subsection (h), considering the overall context and structure
of the AIM Act; and information and insight drawn from EPA's past
experience with the same or similar practices, processes, or
activities, as well as sectors, subsectors, and markets, gained from
implementing other programs, including under other provisions of the
AIM Act and the CAA. In establishing the 15-pound threshold for leak
repair requirements in this rulemaking, EPA considered both the
purposes of minimizing the release of HFCs from equipment and
maximizing reclamation, as well as other factors as discussed further
in other responses to comments in this section. For example, EPA
considered information regarding refrigerant-containing appliances
where HFCs or their substitutes are currently being used and where they
are expected to be used in the coming years; the universe of affected
appliances subject to the leak repair requirements at 40 CFR 82.157 and
how the refrigerant-containing appliances being used in the market and
aftermarket has changed over time, including with respect to charge
size; and design elements of different types refrigerant-containing
appliances with different charge sizes and the propensity of that
equipment to leak (e.g., whether the equipment is hermetically sealed),
as well as whether it is typically repaired for continued use, or
alternatively disposed of, if it is not functioning properly.
Consideration of these factors informed EPA's evaluation of the charge
sizes of refrigerant-containing appliances for which leak repair is
likely to be effective at minimizing releases of refrigerant from
appliances and maximizing reclamation. EPA also considered the
importance of proper refrigerant management for successful
implementation of the phasedown and for supporting the existing
installed base of appliances. Based on such considerations, and as
discussed in greater detail below, EPA concludes it is appropriate to
use a 15-pound threshold for the leak repair requirements under this
rule and that this threshold will further serve the purposes identified
in subsection (h)(1) of minimizing the release of HFCs from equipment
and maximizing reclamation.
By establishing an applicable charge size of 15 pounds or more of
refrigerant, with certain exemptions, the universe of affected
appliances covered by the leak repair requirements under subsection (h)
is larger than the universe of appliances containing ODS refrigerants
and subject to the leak repair provisions at 40 CFR 82.157. For
example, the applicable charge size of 15 pounds or more of a
refrigerant that contains an HFC or substitute refrigerant with a GWP
above 53 is expected to cover certain appliances in the following
subsectors:
Train air conditioning;
Passenger buses (e.g., school, coach, transit, and trolley
buses); \57\
---------------------------------------------------------------------------
\57\ ``Bus'' is defined at 40 CFR 1037.801 and means ``a heavy-
duty vehicle designed to carry more than 15 passengers. Buses may
include coach buses, school buses, and urban transit buses.''
---------------------------------------------------------------------------
Refrigerated transport--rail;
Large retail food remote condensing units (e.g., cold
rooms in supermarkets); and
Commercial unitary air conditioning (e.g., a system for a
mid-sized office building).
EPA is establishing a 15-pound refrigerant charge size threshold
for refrigerant-containing appliances subject to the leak repair
requirements in this final rule based in part on consideration of an
analysis of refrigerant-containing appliances where HFCs or their
substitutes are currently being used and where they are expected to be
used in the coming years. EPA conducted an analysis \58\ using the
Vintaging Model to estimate the quantity of refrigerants used in
equipment of varying charge sizes (also called the ``installed
stock''). The Vintaging Model tracks the transition from ODS to
substitutes including HFCs by modeling the total pieces of equipment
and average charge sizes--which could vary over time based on vintage
and the ODS or substitute used--in over 60 subsectors. Doing so allows
us to analyze the pieces of equipment and total refrigerant in
equipment by charge size. A current snapshot of the model's estimates
of the installed stock of HFC and HFC substitute refrigerants in 2025
shows
[[Page 82713]]
that approximately 42 percent of refrigerants (on a weighted carbon
dioxide equivalent (CO2e) basis) are used in appliances with
a charge size above 15 pounds. In evaluating where leak repair could be
effective at reducing releases of refrigerant from appliances (e.g.,
trains and passenger busses), which may result in additional
environmental benefits, as well as looking at changes in the RACHP
market and aftermarket over the past few decades, EPA finds it
appropriate to establish a charge size threshold of 15 pounds for
refrigerant-containing appliances to be subject to the leak repair
requirements. As a general matter, appliances containing less than 15
pounds of refrigerant are significantly more likely to be hermetically
sealed (and thus less prone to leaking) and more likely to be replaced
rather than be repaired.
---------------------------------------------------------------------------
\58\ U.S. EPA. 2023. EPA's Vintaging Model representing the
Allocation Framework Rule as modified by the 2024 Allocation Rule
RIA Addendum and the 2023 Technology Transitions Rule RIA Addendum.
VM IO file_v4.4_02.04.16_Final TT Rule 2023 High Addition.
---------------------------------------------------------------------------
EPA considered the statutory purposes in subsection (h)(1) to
maximize the reclaiming and minimize the release of regulated
substances from equipment when setting the threshold for appliances
covered for the leak repair requirements. These purposes guided EPA's
considerations in exploring different charge sizes, as did the Agency's
consideration of what regulations would be ``appropriate'' to control
the relevant practices, processes, or activities to serve these
purposes, consistent with subsection (h)(1).
Comment: EPA received many comments supporting the 15-pound charge
size threshold. One commenter expressed support of EPA's proposed rule,
stating that HFC emissions do not respect State boundaries and a
Federal approach is critical to avoid piecemeal regulations and
facilitate the implementation of industry-wide emissions reductions.
Another commenter stated that it was reasonable for EPA to have a
different charge size threshold than the ODS regulations to preserve
the supply of HFC refrigerants. Several commenters in favor of the
proposal recommended EPA consider a lower charge size threshold (e.g.,
five pounds) to avoid additional GHG emissions. One commenter suggested
a charge threshold size between one and five pounds to include smaller
appliances and achieve additional reductions to HFC emissions. Another
commenter stated that lowering the charge size threshold decreases the
incentive for owners and operators to replace one large system with
smaller systems to skirt regulatory obligations. One commenter stated
that EPA's estimates (on a weighted CO2e basis) show that
appliances below 15 pounds account for around 39 percent of total HFC
refrigerants. The commenter suggested that lowering the threshold will
close the gap on HFC management and build on existing recordkeeping
requirements for technicians who evacuate refrigerant from appliances
with a full charge between 5 and 50 pounds.
Response: EPA is finalizing the 15-pound charge size threshold as
proposed. The Agency acknowledges the numerous supportive comments for
the 15-pound charge size threshold. Since the 1990s, when EPA
established the 50-pound charge size for ODS refrigerant-containing
appliances, there have been changes in appliance design, use, and
practices. In 2016, EPA updated the leak repair program under CAA
section 608, partly in consideration of these changes. For the most
part, the leak repair provisions for HFCs finalized in this action are
consistent with that rule. However, EPA did not change the 50-pound
threshold in the 2016 CAA Section 608 Rule, and thus the 15-pound
threshold is different from the threshold under the CAA section 608
regulations at 40 CFR part 82, subpart F. Through this notice-and-
comment rulemaking, the Agency provided notice of this lower threshold
level and considered the public comments received. The Agency's
rationale for a 15-pound threshold is discussed in the proposal and in
section IV.C.2 of this preamble. As discussed previously, applying the
leak repair requirements to more refrigerant-containing appliances will
reduce the release of HFCs from said appliances and increase the amount
of HFCs available to recover that would be otherwise lost because of
leakage from appliances. Furthermore, the HFC phasedown will not
eliminate the use of HFCs in the U.S. market, so there may be continued
introduction of new HFC-containing appliances; thus, proper management
of these refrigerant-containing appliances is necessary for the
successful implementation of the HFC phasedown, and to ensure there is
an adequate supply of reclaimed HFCs to support the existing installed
base of HFC-containing appliances. The Agency also disagrees with one
commenter's statement that a lower threshold would disincentivize
owners or operators from installing multiple smaller refrigerant-
containing appliances to skirt the leak repair requirements of this
final rule. The 15-pound threshold is intended to be low enough to
hinder efforts to avoid applicability of the leak repair requirements
and ensures a sizeable proportion of refrigerant-containing appliances
are subject to the leak repair requirements of the final rule. After
further evaluation informed by consideration of these comments, EPA is
finalizing a 15-pound charge size requirement for HFC and covered HFC
substitute refrigerants.
EPA took comment on, but is not finalizing, leak repair
requirements for equipment with charges of less than 15 pounds. One
commenter stated that a lower threshold could bridge that gap on HFC
emissions by capturing more refrigerant-containing appliances. While
EPA agrees that there could be instances where this may reduce releases
of refrigerants, we also note that many refrigerant-containing
appliances with charge sizes under 15 pounds are typically hermetically
sealed, which means they are less leak prone; these refrigerant-
containing appliances are also normally disposed of once they stop
functioning properly, rather than being repaired for further use. The
commenter stated that lowering the threshold would build on existing
requirements to recover refrigerants from small appliances (5 pounds or
less) under 40 CFR 82.155, which apply to HFCs. However, as previously
discussed, these types of refrigerant-containing appliances are at low
risk for leakage. Although the safe disposal requirements for small
appliances under CAA section 608 do not address leaks, the provision
ensures that the refrigerant within these appliances is not released at
disposal. Further, EPA notes that refrigerant-containing appliances
between 5 and 15 pounds are still subject to the venting prohibition
under section CAA section 608(c) (codified in EPA's regulations 40 CFR
82.154(a)(1), which prohibits the knowing venting or release of HFCs
from refrigerant-containing appliances during the maintaining,
servicing, repairing, or disposing of the appliance. While EPA agrees
that there could be reasons to consider lowering the charge size
threshold to five pounds or lower, the Agency would want to further
evaluate various aspects of a lower threshold before proposing to
establish one, such as the potential for such a threshold to serve the
purposes identified in subsection (h)(1), whether there are particular
considerations about what types of requirements might be appropriate
for such appliances, including common design elements for these
appliances, and any information available about the occurrence or cause
of leaks in such appliances.
Comment: A number of commenters opposed the 15-pound charge size
threshold for leak repair and stated that the threshold is not cost-
effective, may confuse owners and technicians, will
[[Page 82714]]
increase repair cost, and will double the regulatory responsibilities
for industry as compared to CAA section 608 regulations, without
commensurate environmental benefits. Several commenters provided
estimates for the number of refrigerant-containing appliances subject
to the leak repair requirements, which ranged from two to five times
greater than the number of refrigerant-containing appliances that would
be subject to the leak repair provisions at a 50-pound threshold.
Several commenters requested that EPA require leak repair for
appliances with a full charge of 50 or more pounds as this is the
current ODS threshold under CAA section 608 regulations. One commenter
claimed that it could be difficult to effectively distinguish between
units charged with HFCs, ODS, or a combination of both for purposes of
compliance, and that it would be difficult for equipment owners and
certified technicians to determine the applicability threshold for any
particular refrigerant/appliance. The commenter asserted that EPA
should maintain the 50-pound threshold for applicability to promote
compliance, maintain consistency in operations, and avoid unjustified
costs. Another commenter urged EPA to direct leak repair requirements
to larger appliances with a charge size of 50 pounds or more, as
technological advancements have allowed for smaller charge sizes in
appliances and therefore have reduced the potential harm to the
environment in the event of a leak. The commenter also asserted that
the 15-pound threshold could discourage manufacturers from improving
the efficiency of refrigeration appliances to reduce overall
refrigerant usage. One commenter suggested EPA wait a period of time
(e.g., five years) from the effective date of the final rule to see if
there is a reduction in HFC use and their corresponding emissions. The
commenter recommended that if substantial HFC use and emissions
reductions are not observed, then EPA could evaluate and propose a new
applicability threshold. Alternatively, the commenter suggested EPA
could establish a charge size threshold at 40 pounds, as there have
been technological reductions in charge sizes due to the phaseout of
ODS. A few commenters recommended that EPA increase the threshold from
the proposed 15 pounds to 30, 40, or 50 pounds to better align with CAA
section 608 regulations. One commenter claimed the 15-pound threshold
does not provide enough environmental benefits to justify the cost
increases to small business owners, local school systems, and mass
transit operators. The commenter stated that while a 50-pound threshold
is preferable, a 30-pound threshold would mitigate some of these costs
and challenges. Another commenter stated that the 15-pound threshold
was too low and would dramatically increase the number of affected
appliances; suggesting that a 30-pound threshold would be more
appropriate and still expand upon the CAA regulations.
Response: EPA disagrees with commenters that the 15-pound threshold
will confuse technicians and facility owners. While this lower
threshold will affect different sizes and types of refrigerant-
containing appliances than the 50-pound threshold for ODS appliances,
the leak repair activities are consistent with the subpart F
requirements. Through this notice-and comment rulemaking the Agency
informed stakeholders of this lower threshold level and explained the
Agency's rationale for a 15-pound threshold in section IV.C.2 of this
preamble. EPA intends to provide information to the regulated community
on its website and additional communication about the requirements to
affected stakeholders. EPA also disagrees that owners or operators
would have difficulty determining what refrigerants are being used
within a refrigerant-containing appliance or that they would have
difficulty determining the charge size of a refrigerant-containing
appliance. An owner or operator should be fully aware of the type of
refrigerant that is being used in a refrigerant-containing appliance,
and the determination of an appliance's full charge (as described in
section IV.A.2 of this preamble) is the same as its use under the CAA
section 608 regulations.
The Agency disagrees with a commenter's claim that the 15-pound
threshold would uniquely burden small businesses, schools, and mass
transit operators. Small businesses and schools, depending on equipment
type, may fall under the narrow leak repair exemption for residential
and light commercial air conditioning and heat pumps, easing some of
their regulatory burden. The final rule's leak repair provision may
affect operators of air conditioning on mass transit (e.g., trains) and
school buses, but the commenter did not provide specific evidence to
support their claim that the leak repair requirements would increase
costs to an extent that it unduly burdens these refrigerant-containing
appliance owners.
EPA disagrees with a commenter's suggestion to pause the compliance
date of the leak repair provisions to see if there is a substantial
reduction in HFC use and emissions. The Agency notes that the HFC
phasedown is substantially reducing the production and consumption of
HFCs; thus, the overall use of virgin HFCs is going to be reduced as
the phasedown progresses. However, as previously stated, the phasedown
will not eliminate the production and consumption of HFCs, and specific
measures are necessary to limit the impacts of HFCs on the environment
and ensure that the supply of HFC refrigerants is available for use in
existing systems. This action is focused on implementing subsection (h)
of the AIM Act, which establishes distinct authorities focused on
minimizing the release of HFCs and maximizing the recovery of HFCs for
reclamation. The vast majority of HFCs are used in the RACHP sector and
its subsectors; thus, leak repair requirements for this sector are
vital to minimizing the release of HFCs and maximizing reclamation.
Additionally, in the context of the HFC phasedown, not establishing
requirements to limit the release of HFCs will create supply issues as
the phasedown progresses. Therefore, the timing of the leak repair
requirements in this final rule is vital to the implementation of the
HFC phasedown and ensures that a supply of reclaimed HFCs is available
for owners or operators to continue to use HFCs for their refrigerant-
containing appliances. The Agency agrees that additional data may
inform future decisions under subsection (h) and more broadly under the
AIM Act. Such information could lead to a future notice-and-comment
rulemaking that may consider a lower threshold for refrigerant-
containing appliances subject to leak repair requirements. However,
based on the data available now, the Agency concludes that it is
appropriate to proceed with the leak repair requirements for appliances
with a full charge size of 15 pounds or more and with a compliance date
of January 1, 2026, as part of implementing subsection (h).
The Agency also disagrees with some commenters' assertions that the
15-pound threshold would increase the number of refrigerant-containing
appliances subject to leak repair by a factor of two to five times the
number of affected appliances under CAA section 608. The final rule
will include a substantial number of new appliances under the leak
repair provision but not the extent claimed by the commenter. Vintaging
Model estimates on the total number of refrigerant-containing
appliances subject to the leak repair
[[Page 82715]]
provisions of the final rule are estimated to affect 971,133 appliances
with a charge size between 15 and 50 pounds and 580,653 appliances with
a charge size above 50 pounds. As previously stated, EPA understands
that the 15-pound threshold does increase the number of refrigerant-
containing appliances subject to leak repair. This decision was based
on EPA's evaluation of changes in the RACHP market and aftermarket
(e.g., the overall reduction of refrigerant charge size). With these
considerations, EPA determined that capturing refrigerant-containing
appliances at charge sizes below 50 pounds will further serve the
purposes of minimizing the release of HFCs from equipment. Therefore,
the Agency finds it appropriate to establish a charge size threshold of
15 pounds for refrigerant-containing appliances to be subject to the
leak repair requirements.
For these reasons EPA also disagrees with one commenter's claim
that refrigerant-containing appliances below 50 pounds should not be
subject to the leak repair provision because their reduced charge size
has mitigated their potential to harm the environment. The extension of
the leak repair requirements to refrigerant-containing appliances below
50 pounds was found to be feasible because of the technological
improvements to refrigerant charge size over decades. These changes in
charge size in the RACHP sector informed EPA's decision to capture
appliances between 15 and 50 pounds because those appliances still
contain HFCs or covered substitutes that have a detrimental effect on
the environment. The reduction in charge size does mitigate the total
amount of refrigerant that is capable of being lost during a leak
event, but it does not account for the proper management of
refrigerant-containing appliances and fixing leaks within said
appliances. EPA also disagrees with the commenter's assertion that
lowering the threshold to 15 pounds will deter manufacturers from
continuing to make technological advancements to appliance charge size.
Manufacturers' incentives to create smaller refrigerant-containing
appliances are not solely based on the charge size threshold for leak
repair in this final rule, nor was this the case in the context of the
50-pound threshold under the CAA section 608 regulations. The commenter
did not provide additional information to sufficiently reason that this
would be the case, and EPA notes that charge size reductions have
occurred over decades because of improvements to appliance design and
energy efficiency.
EPA acknowledges commenters' concerns regarding the costs and
benefits associated with leak repair. Further discussion on the costs
and benefits associated with this final rule and discussions on the
draft RIA addendum and Economic Impact and Benefits TSD can be found in
section VI.B of this preamble. EPA is not relying on those analyses as
a record basis for this rulemaking, and the Agency would reach the same
conclusions on the suitability of a 15-pound charge size threshold
without those analyses. However, the analyses in the TSD reflect that
the leak repair requirements in this final rule will provide several
benefits to owners or operators and EPA acknowledges that certain costs
will be associated with the implementation of the leak repair
provisions. First, the leak repair requirements of this rulemaking are
likely to provide owners or operators information that leaks are
occurring earlier than would have otherwise been known. Fixing those
leaks will reduce the amount of refrigerant needed to be added to the
system thereby reducing refrigerant costs for the owner/operator.
Secondly, a system that is operating with less than the full charge of
refrigerant is likely to consume more energy or not provide the desired
cooling effect, both of which increase the owner's operating costs. As
an example, a unit cooler with 15 to 50 pounds of refrigerant might be
used for a large cold room. If that cooler is not providing the cooling
needed, products could spoil, representing a potential large cost to
the owner, in addition to the costs of the additional energy used to
operate the off-specification equipment, which may be potentially
avoided if the owner or operator performs the leak inspection and
repair requirements of this rulemaking.\59\ Regarding the issue of
cost-effectiveness of a 15-pound threshold raised by some commenters,
the Agency refers the reader to section VI.B of the preamble. The
Agency reiterates that this rulemaking is designed to serve the
purposes identified in subsection (h)(1) of the AIM Act, including
maximizing reclamation and minimizing the release of regulated
substances from equipment.
---------------------------------------------------------------------------
\59\ Impacts of Refrigerant Charge on Air Conditioner and Heat
Pump Performance'' (2010). International Refrigeration and Air
Conditioning Conference. Paper 1122. Available: http://docs.lib.purdue.edu/iracc/1122.
---------------------------------------------------------------------------
Comment: A commenter in opposition of the 15-pound threshold
claimed that the reasoning for changing the charge size threshold
appears to be arbitrary and capricious. The commenter claims the
reduction is unmerited based on the availability of newer technologies
using smaller charge sizes. They further assert the replacement of
older appliances with new and more efficient appliances is one of the
goalposts of the AIM Act. The commenter stated that applicability of
the leak repair and detection requirements will act as a deterrent for
replacing appliances and is unnecessary and unreasonable given
reductions in available HFC stocks. The Agency also received a similar
comment stating that the proposal did not provide clear justifications
for lowering the charge size threshold below 50 pounds.
Response: The Agency disagrees that the 15-pound threshold is
arbitrary and capricious. Subsection (h)(1) of the AIM Act directs the
Agency to promulgate ``regulations to control, where appropriate,''
certain practices, processes, or activities, for certain purposes,
including minimizing the release of regulated substances from equipment
and maximizing their reclamation of regulated substances. As explained
earlier in this preamble, the phrase ``where appropriate'' in
subsection (h)(1) provides EPA with discretion to reasonably make
determinations on how the regulations should apply including, among
other things, to select an appropriate charge size threshold for
refrigerant-containing appliances subject to the leak repair provision.
As previously stated, the Agency is applying leak repair requirements
to more refrigerant-containing appliances than under the CAA section
608 rules to reduce the release of HFCs from said appliances and
increase the amount of HFCs available for recovery that would otherwise
be lost because of leakage from such appliances. Given that the
purposes identified for regulations under subsection (h)(1) include
maximizing reclamation and minimizing release of HFCs from equipment,
EPA interprets the intent of subsection (h)(1) to be that the
regulations promulgated under it may apply as broadly as needed to
serve those purposes, while also being mindful of the statutory text
indicating that the controls should apply ``where appropriate.'' EPA
finds it appropriate to apply the leak repair requirements to equipment
with a charge size below 50 pounds for several reasons. Technological
advancements have lowered the charge sizes of many refrigerant-
containing appliances, such that using a charge size threshold of 50
pounds today would leave many such appliances unregulated. Refrigerant-
containing appliances between 15 and 50 pounds still contain climate-
[[Page 82716]]
damaging HFCs or HFC substitutes that are appropriately addressed under
subsection (h)(1). Such appliances can still leak, and if they are not
repaired, could release refrigerant, which would not be available for
reclamation once it had leaked. Thus, applying the leak repair
requirements to this equipment is part of the regulatory design to
better serve the purposes identified in subsection (h)(1) of maximizing
reclamation and minimizing release of HFCs from equipment. With respect
to the commenter's reference to reductions in HFC stocks, EPA notes
that the HFC phasedown will greatly reduce the overall consumption and
production of HFCs but will not eliminate their use in the U.S. market.
Therefore, continued introduction of HFC-containing appliances may
still occur, and EPA concludes it is appropriate for theses appliances
to be subject to these requirements for the reasons described earlier
in this response. For these reasons, EPA finds the 15-pound threshold
as appropriate for serving the purposes described in subsection (h).
The Agency disagrees with the commenter's assertion that the 15-
pound threshold would deter the transition to newer, more efficient
refrigerant-containing appliances, as in the Agency's experience
several factors inform the decision of whether to replace equipment and
if so, what to replace it with (such as the age, functionality, and
costs of operating the existing equipment, and the price of new
equipment and costs of operating that equipment). EPA notes that the
commenter did not provide additional information to support their
assertion that such deterrence would actually occur. EPA is not clear
on what the commenter is referring to when it says that one of the goal
posts of the Act is the replacement of older equipment with newer and
more efficient equipment. To the extent the comment is referring to the
implementation of subsection (i) of the AIM Act, EPA clarifies that
those provisions are out of the scope of this rulemaking and thus any
comment addressing those requires no response. To the extent that the
comment pertains to appliances subject to the leak repair requirements
in this final rule the Agency notes the overall applicability of
appliances is subject to whether or not they contain an HFC or
substitute for an HFC with a GWP greater than 53. The final 2023
Technology Transitions Rule applies certain GWP-based restrictions on
use of HFCs in new equipment in certain sectors or subsectors in which
those HFCs are used. If an equipment owner were to decide to replace a
refrigerant-containing appliance above the 15-pound threshold with a
new refrigerant-containing appliance that is subject to under 2023
Technology Transitions Rule, they would need to consider compliance
with those requirements. If they also wish to avoid the applicability
of leak repair requirements established in this rule to the new
appliance, they may have options that would achieve that goal. For
example, an owner or operator may be able to select an appliance that
uses a refrigerant that does not contain an HFC or a substitute with a
GWP greater than 53. However, if they are selecting a refrigerant-
containing appliance that uses HFCs, it would not serve the purposes
identified in subsection (h)(1) of maximizing reclamation and
minimizing release of HFCs from equipment to allow that refrigerant-
containing appliance to avoid application of the leak repair
requirements simply because it is new, even it is more efficient. Thus,
their inclusion in the leak repair requirements at the 15-pound
threshold is warranted.
Comment: One commenter stated that many food industry leaders are
part of the GreenChill voluntary partnership that made charge size
reduction a priority and challenged equipment manufacturers to lower
the amount of refrigerant needed in the retail food industry. The
commenter asserted that the current charge size threshold of 50 pounds
has served as a motivation to select lower-charge appliances, which
leak less refrigerant in situations where catastrophic leaks occur and
stated that the proposed threshold penalizes food retailers for the
progress under the GreenChill partnership. The commenter asserts that
the lower threshold would decrease any motivation for food retailers to
purchase expensive appliances that operate at lower charge sizes below
50 pounds. The commenter also expressed concern that many smaller
appliances would need to be added to a company's recordkeeping, because
appliances not previously covered under section 608 would not have had
their full charge data captured.
Another commenter indicated that the provision poses a significant
challenge to a cost-conscious industry using centralized HFC systems
which are reliable and remain cost-effective for years if well
maintained. The commenter asserted that the leak repair requirements
would force owners or operators who have recently transitioned to HFO
systems to transition again or to cause smaller facilities to
transition to fan systems which may paradoxically increase emissions
from electricity generation. The commenter also stated that the rule
disproportionately impacts owners or operators in States with higher
heat indexes and limited alternative chilling methods.
Response: The Agency disagrees that the final rule's 15-pound
threshold for leak repair unduly burdens the retail food industry. EPA
acknowledges that these newer designs may use both less refrigerant
overall and refrigerants with lower-GWPs but disagrees that the leak
repair requirements penalize food retailers that have switched to such
equipment because these requirements apply equally to equipment subject
to the requirements. Furthermore, the Agency has previously stated that
the overall reduction in charge size the RACHP sector is part of EPA's
rationale for lowering the charge size threshold to 15 pounds.
Refrigerant-containing appliances between 15 and 50 pounds still
contain HFCs and covered substitutes which have a detrimental effect on
the environment. The extension of the leak repair requirements to
capture refrigerant-containing appliances between 15 and 50 pounds will
ensure that less HFCs are emitted. The Agency responds that the
GreenChill partnership is a voluntary partnership program and does not
require the supermarket industry as a whole or the partnership to meet
specific leak repair requirements. Advancements in refrigerant charge
sizes cannot solely be attributed to the GreenChill partnership as
appliance manufacturers and supermarket owners had incentives to lower
the charge size of supermarket systems to save on refrigerant costs and
improve energy efficiency. The Agency, however, does recognize that
supermarkets in the GreenChill voluntary partnership are uniquely
positioned to meet the leak repair requirements as partners have been
able to consistently achieve lower leak rates by adopting newer system
technologies, using newer refrigerants, applying best practices, and
maintaining leak-tight systems to decrease refrigerant emissions. The
Agency also disagrees with the commenters' framing that the 15-pound
threshold would disincentivize owners or operators from investing in
refrigerant-containing appliances at lower charge sizes. Owners and
operators may decide to transition to refrigerant-containing appliances
with smaller charge sizes to save money on refrigerant costs and
mitigate the potential of leakage characterized by refrigerant-
containing appliances at larger charge sizes. EPA does not find that
owners or operators
[[Page 82717]]
would solely transition to appliances with small charge sizes to avoid
leak repair requirements.
EPA also disagrees with one commenter's assertion that owners or
operators who have recently transitioned to HFO systems will need to
transition again. This final rule is not regulating the transition of
refrigerant-containing appliances, rather, the final rule is
establishing leak repair requirements for refrigerant-containing
appliances with a charge size 15 pounds or greater which use an HFC or
substitute for an HFC with a GWP greater than 53. EPA did not propose
and is not finalizing requirements for refrigerant-containing
appliances to transition or be replaced (unless a refrigerant-
containing appliance is not able to be repaired and is subject to the
retrofit or retirement requirements described in section IV.C.3.f of
this preamble). The Agency views the leak repair requirements of the
final rule to provide numerous benefits to owners or operators (e.g.,
reduced costs to replace lost refrigerants due to leaks). As the
commenter stated, HFC centralized systems if well maintained can be
reliable and cost-effective for owners and operators and the leak
repair requirements of the final rule ensure that these systems are
well maintained. Further, owners or operators who are using HFOs or HFO
blends are only subject to the leak repair requirements if the
refrigerant used contains an HFC or has a GWP greater than 53. For
these reasons, the Agency also disagrees that smaller facilities will
transition to fan refrigeration systems in order to avoid the leak
repair requirements of the final rule. EPA does not foresee fan systems
as being a replacement to refrigerant-containing appliances that use
HFCs and notes that there are non-HFC alternatives available for
certain refrigerant-containing appliances used by the retail food
industry.
EPA also disagrees that the leak repair requirements
disproportionately impact owners or operators in States with higher
heat indexes and limited alternatives. As stated previously, this rule
is not requiring the transition to different alternatives or
prohibiting the use of HFCs, rather, the rule is establishing
requirements to ensure leaks in refrigerant-containing appliances
containing HFCs or covered substitutes are repaired in a timely manner.
The Agency understands that differences in ambient temperature will
affect the need for RACHP appliances, however, the leak repair
requirements apply equally to refrigerant-containing appliances
regardless of geographic location. Furthermore, the prompt repair and
management of refrigerant-containing appliances in States with higher
heat indexes where RACHP is utilized more, will help save owners and
operators costs associated with leaky appliances.
EPA is finalizing as proposed, the exemption of the residential and
light commercial air conditioning and heat pump subsector \60\ from the
leak repair provisions in the final rule. This subsector is categorized
by refrigerant-containing appliances that are used to cool individual
rooms, single-family homes, and small commercial buildings. The Agency
notes that the description of the subsector is consistent with the
description used by the SNAP program since 2009,\61\ owners or
operators should be familiar with the terminology and implementation
under the SNAP program. EPA is not providing a regulatory definition of
residential and light commercial air conditioning and heat pumps and
clarifies that we are using the terminology developed by SNAP to denote
the types of refrigerant-containing appliances that would be considered
to fall under the subsector. The determination of whether or not a
refrigerant-containing appliance is exempt from the leak repair
provision is reliant on such appliances being considered to fall within
the parameters of the terminology. As described in the proposal, the
vast majority of refrigerant-containing appliances in the residential
and light air conditioning subsector typically have a charge size of
less than 15 pounds; however, EPA is providing an exemption in the case
that an appliance is used within this subsector with a charge size of
15 pounds or more. These refrigerant-containing appliances are used in
residences (but this subsector does not include larger centrally-cooled
apartment/condominium buildings--where a chiller is likely used), and
small retail and office buildings. The types of specific refrigerant-
containing appliances used in this subsector could include but are not
limited to:
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\60\ The residential and light commercial air conditioning
subsector includes equipment for cooling air in individual rooms,
single-family homes, and small commercial buildings, including both
self-contained and split systems. Self-contained systems include
some rooftop AC units (e.g., those ducted to supply conditioned air
to multiple spaces) and many types of room ACs, including packaged
terminal air conditioners (PTACs), some rooftop AC units, window AC
units, portable room AC units, and wall-mounted self-contained ACs,
designed for use in a single room. Split systems include ducted and
non-ducted mini-splits (which might also be designed for use in a
single room), multi-splits and variable refrigerant flow (VRF)
systems, and ducted unitary splits. For additional information on
the types of equipment, see EPA's website at https://www.epa.gov/snap/substitutes-residential-and-light-commercial-air-conditioning-and-heat-pumps.
\61\ This subsector was previously characterized as ``household
and light commercial air conditioning'' (61 FR 4736, February 8,
1996). EPA later revised this subsector's name because it was
recognized the ``house'' might be taken to exclude other types of
dwellings, such as apartments.
---------------------------------------------------------------------------
Packaged terminal air conditioners (PTACs);
Variable refrigerant flow (VRF) appliances;
Unitary air conditioning; and
Some rooftop air conditioning.
There are several reasons for this exemption. Since the majority of
appliances in this subsector have a refrigerant charge below the 15-
pound cutoff for leak repair requirements, enforcement of these
appliances may be challenging due to the number of appliances that
would be covered. Further, the number of refrigerant-containing
appliances in this subsector may cause additional strain on contractors
and technicians who are necessary to complete the repair of leaking
appliances. Therefore, EPA's exemption of appliances in this subsector
from the leak repair requirements is administratively more efficient
and will facilitate compliance of affected appliances under the
provision.
Comment: EPA received generally positive comments on the exemption
of residential and light commercial air conditioning with the majority
of comments requesting clarity of what appliances are covered by the
exemption. One commenter stated that codifying a definition for
residential and light commercial air conditioning and heat pumps would
avoid confusion in the regulated community. Two commenters requested
EPA consider codifying the industry definition of light commercial
defined as having a cooling capacity below 65,000 BTU/h. One commenter
urged EPA to clarify what it considers a ``small commercial building.''
One commenter stated that EPA should define residential and light
commercial refrigeration to be consistent with how SNAP defines the
residential and light commercial air conditioning and heat pump
subsector. The commenter stated that a definition of light commercial
air conditioning consistent with SNAP would exclude chillers but
include most other forms of household and commercial cooling. Another
commenter requested clarification on whether air conditioning systems
for supermarkets would be classified as light commercial and therefore
exempt from leak repair requirements. The commenter added that if EPA
were to clarify that supermarket air conditioning appliances do not
fall under light commercial air
[[Page 82718]]
conditioning, the Agency would need to evaluate the significant cost
burdens associated with the decision.
Response: EPA is finalizing the leak repair exemption of
residential and light commercial air conditioning and heat pumps. The
Agency acknowledges comments in support of the provision. In response
to commenters' request that EPA better define residential and light
commercial air conditioning and heat pumps the Agency has provided
additional description and discussion in the preamble of this rule. EPA
clarifies that it is not codifying a definition of the subsector nor is
it adopting a 65,000 BTU/h industry standard as one commenter
suggested, because we find the additional clarification of the
subsector included in the preamble to be sufficient in alleviating
potential confusion with what refrigerant-containing appliances are
included in the residential and light commercial air conditioning and
heat pumps subsector. The Agency reiterates that the majority of
appliances subject to this narrow exemption are below the final rule's
15-pound charge size threshold for the leak repair provision. EPA notes
that the terminology used for the residential and light commercial air
conditioning and heat pumps sector mirrors the terminology created and
implemented under the SNAP program under the CAA, which has been used
in that context since 2009. As used in the context of SNAP, this
residential and light commercial air conditioning and heat pumps end-
use includes equipment that cools enclosed spaces in households and
commercial premises (excluding chillers) which include room air
conditioning such as window units, PTACs and heat pumps, and portable
air conditioners; central air conditioners (i.e., ducted); non-ducted
systems (both mini and multi splits); packaged rooftop units; water-
source and ground-source heat pumps; and other products. Residential
and light commercial air conditioning and heat pumps are often
distinguished from chillers by the fact that they condition the air
directly, rather than cool (or heat) water that is then used to
condition air.\62\ The Agency intends for the term as used in the
context of this rulemaking under subsection (h) to have the same
meaning as it has under the SNAP program, given the Agency's experience
in regulating this end-use under SNAP and its expectation that the
regulated community is familiar with this term and its use under SNAP.
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\62\ SNAP Notice 23 (January 2, 2009; 74 FR 21).
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The SNAP terminology is based, in part, on ASHRAE's standard 15-
2022 which provides more clarity of what types of occupant spaces that
fall into the category of what EPA refers to as residential and light
commercial. For ``residential occupancy'' some premises include but are
not limited to dormitories, hotels, multiunit apartments, and private
residences. For ``commercial occupancy'' some premises include office
and professional buildings, markets, and other work or storage areas.
EPA notes that ASHRAE standards are primarily addressing issues with
safety in relation to ``residential occupancy'' or ``commercial
occupancy'' whereas SNAP is addressing the safety and applicability of
specific refrigerants which are determined as acceptable for use in
specific end-uses. Further, while these descriptions of ``residential
occupancy'' and ``commercial occupancy'' are helpful in the
determination of the types of premises which may fall within the
purview of residential and light commercial, the Agency clarifies that
the exemption applies to the categories of refrigerant-containing
appliances used at these premises. In this final rule, EPA is using the
types of refrigerant-containing appliances described under SNAP's
terminology for residential and light commercial air conditioning and
heat pumps to determine what refrigerant-containing appliances fall
under the exemption. For example, a central air conditioner being used
to provide cooling for occupants in a commercial setting that has the
same shape, size, and cooling load as a refrigerant-containing
appliance used in a residential setting would fall under this
exemption. An air conditioning appliance at a light commercial building
would most likely be a rooftop AC unit, which is one type of light
commercial air conditioning.\63\ In addition to rooftop AC units, other
types of air conditioners and heat pumps are part of the residential
and light commercial AC and HP subsector and hence are exempt from the
leak repair requirements, such as single packaged units, split system
central air conditioners and heat pumps, window-mounted air
conditioners, through-the-wall units, and portable air conditioners.
EPA clarifies that the exemption does not apply to a chiller, a type of
air conditioning system that is often used to provide comfort cooling
to office buildings, malls, stadiums, arenas, hotels, convention
centers, airport terminals, etc.
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\63\ The Technology Transitions Rule describes rooftop AC units
as products that combine the compressor, condenser, evaporator, and
a fan for ventilation in a single package and may contain additional
components for filtration and dehumidification. Most units also
include dampers to control air intake. Rooftop AC units cool or heat
outside air that is then delivered to the space directly through the
ceiling or through a duct network. Rooftop AC units are common in
small commercial buildings such as a single store in a mall with no
indoor passageways between stores. They can also be set up in an
array to provide cooling or heating throughout a larger commercial
establishment such as a department store or supermarket. https://www.federalregister.gov/d/2023-22529/p-903.
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In response to the question regarding supermarket air conditioning,
the Agency clarifies that some but not all supermarket air conditioning
systems would fall under the definition of residential and light
commercial air conditioning based on the refrigerant-containing
appliance being used to cool occupants. However, if a supermarket
refrigeration rack is providing comfort cooling as well as
refrigeration for perishable foods, it would not be exempt from the
leak repair requirements (unless it contained less than 15 pounds of a
regulated HFC or HFC substitute with a GWP greater than 53) because
this type of refrigerant-containing appliance does not fall under the
terminology of residential and light commercial AC and HP. With regards
to the assertion that there are significant costs if not all
supermarket air conditioning systems were exempt from the leak repair
requirements, EPA refers the reader to the Economic Impact and Benefits
TSD.
Comment: A few commenters suggested that residential and light
commercial air conditioning and heat pump systems should not receive an
exemption from leak repair requirements. Several commenters
specifically called out the need to include VRF systems under the leak
repair provision. One commenter highlighted that multi-split RACHP and
VRF systems can contain large refrigerant charges, have many points of
potential leakage, and may be more limited in regard to low-GWP
alternatives. Another commenter requested that commercial rooftop
systems with a charge size above five pounds be covered under the leak
repair provision. The commenter agreed with the Agency's decision to
exclude residential systems but encouraged EPA to establish leak repair
requirements for light commercial air conditioning and heat pumps. A
separate commenter in support of the exemption suggested that the
Agency could revisit the leak repair exemption for residential air
conditioning and heat pump systems at a future date as leak detection
solutions become available and cost-effective for these systems.
Response: EPA disagrees with comments requesting that the exemption
for residential and light
[[Page 82719]]
commercial air conditioning not be finalized. In the context of the 608
ODS regulations, residential and light commercial air conditioning were
not anticipated to be affected by the leak repair provisions because of
the regulation's 50-pound charge size threshold. Under the authority of
the AIM Act, EPA sought to align with the 608 regulations where
appropriate and to lower the charge size threshold to 15 pounds for
reasons as further discussed in section IV.C.1 of the preamble. In the
proposed rule, EPA recognized that a lower leak repair charge size
threshold might implicate appliances that are used in the residential
and light commercial air conditioning subsector that were not
previously subject to leak repair requirements. The Agency notes that
the inclusion of refrigerant-containing appliances would greatly expand
the number of refrigerant-containing appliances subject to the leak
repair requirements and may make the enforcement of the leak repair
provisions inefficient. While a portion of the refrigerant-containing
appliances used in the residential air conditioning subsector may have
charge sizes above 15 pounds, the Agency found it prudent to not
require wide breadth of leak repair for this category of appliances in
the final rule. The Agency also notes that the specific exclusion of
residential air conditioning may ease implementation for this first
rule under subsection (h). With a similar reasoning, the Agency notes
similar concerns would arise from making appliances commonly used in
light commercial air conditioning (e.g., central air conditioners,
rooftop AC units, etc.) adhere to the leak repair requirements. For
these reasons the Agency disagrees with one commenter's recommendation
to apply the leak repair requirements to light commercial rooftop
systems with a charge size greater than five pounds. As one commenter
indicated, leak detection could be less costly in the future. The
Agency agrees it could, in a future notice-and-comment rulemaking,
reconsider the leak repair exemption for residential and light
commercial air conditioning and heat pumps.
While EPA agrees that VRF appliances could have higher refrigerant
charge sizes, the Agency disagrees that VRF appliances should be
excluded from the exemption for leak repair as VRF is a general term
describing a type of appliance which is included in the description of
the residential and light commercial air conditioning and heat pumps
subsector. VRF appliances are refrigerant-containing appliances that
can handle differentiated loads. EPA is using the SNAP terminology to
determine the categories of refrigerant-containing appliances that are
exempt from the leak repair provision; VRF appliances have been
considered to be part of that SNAP terminology. In the 2023 Technology
Transitions Rule, VRF appliances above 65,000 BTU/h were split off from
the residential and light commercial AC and HP subsector, and defined
as its own subsector, in part because of the complexity of the design
and installation of larger VRF systems. The additional year was given
to ensure the effective transition to lower-GWP alternatives in the
subsector. Further, annual industry estimates by AHRI \64\ show that
refrigerant-containing appliances with capacities of 65,000 BTU/h or
more constitute roughly three percent of all residential and light
commercial refrigerant-containing appliances sold. VRF appliances of
this size are a subset of this three percent. Additionally, EPA did not
propose and is not finalizing to separate VRF appliances from the leak
repair exemption for the residential and light commercial AC and HP
subsector. EPA in a future notice-and-comment rulemaking may reconsider
the inclusion of certain VRF appliances which currently are exempt from
the leak repair requirements of this final rule.
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\64\ AHRI 2024; available at: https://www.ahrinet.org/analytics/statistics/historical-data/central-air-conditioners-and-air-source-heat-pumps.
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The Agency is requiring leak repair provisions for new and existing
passenger buses,\65\ including school, coach, transit, and trolley
buses with charge sizes at or above 15 pounds. The heavy-duty vehicle
category \66\ incorporates all motor vehicles with a gross vehicle
weight rating of 8,500 pounds or greater. Air conditioning systems used
to cool passenger compartments in these buses mainly use HFC-134a or R-
407C,\67\ and are typically manufactured as a separate unit that is
pre-charged with refrigerant and installed onto the vehicle in a
separate enclosure (e.g., roof mounted). The refrigerant charge for
these systems is larger than those for other MVAC systems (e.g., light-
duty motor vehicles), typically ranging from 15 to 30 pounds. MVAC
systems used to cool passenger compartments in light-duty, medium-duty,
heavy-duty on-road and nonroad (off-road) vehicles are typically
charged during vehicle manufacture and the main components are
connected by flexible refrigerant lines. MVAC systems in these vehicles
typically have charge sizes ranging from one to eight pounds depending
on the manufacturer and cab size.68 69
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\65\ ``Bus'' is defined at 40 CFR 1037.801 and means ``a heavy-
duty vehicle designed to carry more than 15 passengers. Buses may
include coach buses, school buses, and urban transit buses.''
\66\ Defined at 40 CFR 86.1803-01.
\67\ Chemours, Freon\TM\ Refrigerant for Bus and Rail Air
Conditioning; available at: https://www.freon.com/en/industries/stationary-ac-heat-pumps/public-transport-ac.
\68\ ICF, 2016. Technical Support Document for Acceptability
Listing of HFO-1234yf for Motor Vehicle Air Conditioning in Limited
Heavy-Duty Applications. Available at: https://www.regulations.gov/document/EPA-HQ-OAR-2015-0663-0007.
\69\ EPA, 2021. Basic Information about the Emission Standards
Reference Guide for On-road and Nonroad Vehicles and Engines.
Available at https://www.epa.gov/emission-standards-reference-guide/basic-information-about-emission-standards-reference-guide-road.
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Comment: One commenter expressed support for EPA's inclusion of
MVAC systems with charge sizes over 15 pounds in the leak repair
provisions. The commenter asserted that these MVAC systems, such as
those on buses and trains, may lose large amounts of refrigerant over
time.
Response: EPA acknowledges the commenter's support for this
provision and is finalizing the requirement for MVAC and MVAC-like
appliances.
Comment: A commenter questioned the authority of EPA to regulate
the commercial aviation sector, including refrigerant-containing
appliances aboard aircraft and at airports and hangars. The commenter
stated that the Federal Aviation Administration (FAA) has the authority
and responsibility to ensure such requirements do not adversely affect
efficient operation and aircraft safety. The commenter asserted that
EPA has not coordinated with the FAA regarding the potential
application of the rule's requirements. Additionally, the commenter
stated that the proposed rule lacked clarity regarding how the rule
would apply to the commercial aircraft sector and questioned why the
rule did not exempt the commercial aviation sector from the leak repair
and ALD requirements. Lastly, the commenter stated the proposed rule
did not provide sufficient time for the sector to safely comply with
the rule's leak repair requirements and specified that EPA must extend
the applicable leak repair compliance deadlines for commercial
aircraft.
Response: EPA disagrees with the commenter's broad assertion that
EPA does not have the authority to issue regulations pertaining to
aircraft and aircraft operations. While EPA agrees that the FAA has
jurisdiction over matters related to aircraft safety and operations
consistent with its Congressionally mandated authorities,
[[Page 82720]]
under CAA Title VI and the AIM Act, EPA has issued numerous regulations
that concern the use of ODS and HFCs in many applications including
onboard aviation and flight operations. With respect to this action,
the AIM Act does not exclude aircraft or aircraft operations from the
scope of implementing regulations. Notably, the inclusion in subsection
(e)(4)(B)(iv) of the statute of ``on board aerospace fire suppression''
which includes aircraft,\70\ indicates that Congress did not intend to
exempt aircraft and aircraft operations from the AIM Act. In addition,
the commenter does not address the provisions of subsection (h) itself.
None of the text of subsection (h) indicates that Congress contemplated
that these provisions would not apply to equipment used in commercial
aviation. Congress expressly addressed inapplicability of regulations
under (h) in subsection (h)(4), in which it provided that regulations
under subsection (h) shall not apply to HFCs or their substitutes
contained in foams. If Congress had intended to exclude equipment used
in commercial aviation from regulations promulgated under subsection
(h), it would be reasonable to expect that the statute would include
similar language creating that exclusion. Although the comments do not
appear to base their objections on the text of subsection (h), to the
extent they intend to claim that this rulemaking exceeds EPA's
authority under that provision, EPA notes that it is establishing the
subsection (h) requirements in this final action to control practices,
processes, or activities regarding the service, repair, disposal, or
installation of equipment that involves a regulated substance or a
substitute for a regulated substance and to serve the statutory
purposes identified in subsection (h). Thus, this final action is
within the scope of EPA's authority under subsection (h)(1), including
as it pertains to equipment used in commercial aviation.
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\70\ EPA's regulations at 40 CFR 84.3 define on board aerospace
fire suppression to mean ``use of a regulated substance in fire
suppression equipment used on board commercial and general aviation
aircraft, including commercial-derivative aircraft for military use;
rotorcraft; and space vehicles. On board commercial aviation fire
suppression systems are installed throughout mainline and regional
passenger and freighter aircraft, including engine nacelles,
auxiliary power units (APUs), lavatory trash receptacles, baggage/
crew compartments, and handheld extinguishers.''
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With respect to the commenters' assertions that finalizing the
proposed rule would conflict with the Federal Aviation Act's statutory
purpose and scheme and that this statute reserves to the FAA
jurisdiction over matters related to aircraft safety and operations and
broadly preempts the field of regulation with respect to commercial
aviation, aircraft operations, and aircraft safety, EPA responds that
the information presented in the comment letter does not indicate that
EPA is generally precluded from including requirements related to the
commercial aviation sector in this rulemaking. The comment cites and
quotes cases that speak to the pervasive nature of Federal regulation
in this area and address the preemption of State and local regulations.
However, preemption of State and local laws is not relevant to EPA's
authority to establish regulations under the AIM Act.
In response to the commenter's assertions that EPA did not consult
with the FAA on these regulations, particularly for any leak repair
requirements that may apply to the commercial aviation sector, the
Agency notes that it reached out to FAA on certain topics in developing
the draft final rule prior to interagency review.\71\ Further, FAA and
other Federal agencies had an opportunity to review a draft of the
final rule during interagency review. The Agency also notes that these
leak repair provisions mostly align with the regulations under CAA
section 608. For decades these rules have applied to the refrigeration
and air conditioning appliances at airports and within aircraft
hangers, and the Agency has considered commercial aircraft to be non-
MVAC appliances covered under CAA section 608. The Agency also
disagrees with the commenter's argument that owners and operators in
the commercial aviation sector do not have enough time to safely comply
with the provision. EPA notes that the 30-day timeframe timeline for
repairs is the same as in the CAA section 608 rules, which does not
exempt the commercial aviation sector. The leak repair provisions also
provide owners or operators the ability to submit extension requests if
some unforeseen circumstances (e.g., necessary components to complete
leak repair are unavailable during the 30-day leak repair timeframe)
prohibit an owner or operator from completing leak repair within the
normal 30-day timeframe. Moreover, the comment also did not provide
substantive evidence as to why aircraft owners and operators would not
be able to safely comply with the leak repair provisions, nor did the
commenter identify any information that suggests that these
requirements would adversely affect the proper functioning of aircraft
air conditioning.
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\71\ See memo titled EPA Questions to FAA, which is available in
the docket for this rulemaking, EPA-HQ-OAR-2022-0606.
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Finally, EPA notes that the 2023 Technology Transitions Rule
provided a temporary exclusion to onboard galley refrigeration on
aircraft due to their unique operating environment and the fact that
these units are subject to FAA's design and installation requirements
under 40 CFR 25.1365. The Agency clarified the intention to revisit
this application through a notice-and-comment rulemaking no later than
five years after the compliance date for retail food refrigeration-
stand-alone units--i.e., no later than January 1, 2030. The temporary
exclusion for this specific application was given in the context of
subsection (i) and the transition of sectors and subsectors to lower-
GWP alternatives. However as previously discussed elsewhere, the
criteria and purposes of subsection (i) and (h) are different. This
rulemaking is finalizing leak repair requirements for the purposes of
minimizing the release of regulated substances from equipment and
maximizing the reclamation of regulated substances. The repair of leaks
does not have the same implications for the design and installation of
refrigerant-containing appliances as restrictions on the use of higher-
GWP HFC refrigerants. The Agency also notes that the exemption for
onboard galley refrigeration does not extend to ground-based appliances
used by the commercial aviation industry because maintenance and ground
operations are not subject to the same FAA requirements as onboard
galley refrigeration. Likewise, the repair of leaks in appliances used
in ground and maintenance operations (e.g., aircraft hangers) are not
exempt from the leak repair requirements in this final rule, nor are
they out of the scope of EPA's authority to regulate appliances at
airports or aboard aircraft. With these considerations EPA finds it
appropriate to apply the leak repair requirements to the commercial
aviation sector.
The Agency is finalizing a compliance date of January 1, 2026, for
all appliances with charge sizes of 15 pounds or more of a refrigerant
containing an HFC or a substitute for an HFC with a GWP greater than
53, including for such appliances with a charge size of 50 pounds or
more, which is a modification from the proposal. In the proposal, the
Agency proposed a compliance date of 60 days from publication in the
Federal Register for appliances with a charge size above 50 pounds and
a compliance date of one year from the final rule's publication in the
Federal Register for appliances with a charge size between 15 and 50
[[Page 82721]]
pounds. EPA reasoned that the compliance date for appliances above 50
pounds could be sooner because the leak repair provisions in the final
rule are similar to those that have been in place, for some time, for
ODS-containing appliances at or above a full charge size of 50 pounds.
Further, prior to the rescission in 2020 (85 FR 14150, March 11, 2020),
the final rulemaking under CAA section 608 in 2016 (81 FR 82272,
November 18, 2016) applied leak repair provisions for HFC-containing
appliances with a charge size of 50 pounds or greater. The 2016 CAA
Section 608 Rule became effective on January 1, 2017, and the relevant
leak repair requirements for HFCs and other ODS substitutes (now
rescinded) applied as of January 1, 2019 (81 FR 82272, 82356, November
18, 2016). Thus, the Agency reasoned that industry was, at a minimum,
familiar with the leak repair provisions under CAA section 608, which
are similar to the leak repair requirements established under
subsection (h) in this action. In regard to refrigerant-containing
appliances with a full charge that is at least 15 pounds but less than
50 pounds, the proposal included a slightly longer compliance timeline,
as EPA had not previously required leak repair for these appliances.
The additional time was intended to allow the regulated community time
to familiarize themselves with the requirements and make preparations
to comply with them.
Based on further consideration and information provided by
commenters, EPA is finalizing a single compliance date, January 1,
2026, to provide owners and operators additional time to comply with
the leak repair provisions in the final rule. EPA concludes that this
additional time will allow parts of the regulated community that may
not have previously had to comply with the leak repair requirements
under CAA section 608 time to familiarize themselves with the
provisions. While EPA still finds, as at proposal, that parts of the
regulated community are already familiar with the requirements based on
their experience with similar requirements under CAA section 608, EPA
concludes that they would also benefit from additional time to prepare
for compliance. During the interim period before the leak repair
requirements go into effect, owners or operators can begin determining
which refrigerant-containing appliances within a facility will be
subject to the leak repair requirements, including conducting
inventories, determining the refrigerants used within said appliances,
and determining the full charge of refrigerant-containing appliances in
their ownership. EPA does not expect this process to take an
exceptional amount of time; however, the extension to the compliance
date is being provided to ensure owners and operators can complete the
necessary steps to prepare for the leak repair requirements, consistent
with this final rule.
Comment: The Agency received mixed comments on the proposed
compliance date for the leak repair provisions with the majority of
comments asking EPA to re-evaluate the proposed timeline and provide
additional time to comply with the leak repair requirements. Commenters
suggested a longer period to allow manufacturers, facility owners and
operators, and other stakeholders sufficient time to prepare for the
regulations. Suggested compliance timelines ranged from an additional
one to three years, with some commenters suggesting staggered
compliance timelines based on charge size. One commenter stated that a
compliance date after three years from the rule's finalization would be
needed for stakeholders to plan, procure, and implement the leak
detection and repair requirements. Another commenter suggested a
compliance date two years after finalization so that owners and
operators of smaller equipment who may have not previously experienced
leak repair requirements could design, procure, set up, and implement a
refrigerant management program.
One commenter in support of the proposed compliance date noted that
California has had similar requirements for appliances using more than
50 pounds of HFC refrigerants since 2011, highlighting that nationwide
appliances using more than 50 pounds of ODS refrigerants have had
similar rules for several years. Another commenter suggested both
appliance categories (i.e., 50 pounds and greater, and 15 to 50 pounds)
should have the same compliance date of one year after the date of the
final rule. The commenter also asserted that appliances with a charge
size of above 50 pounds that are using 100 percent substitute
refrigerants will need additional time to conduct inventory, determine
the applicability of appliances using substitute refrigerants, and
determine the full charge of appliances. The commenter suggested that
this strategy would avoid market confusion by having multiple
compliance dates. One commenter, in general support of the leak repair
provision, stated the proposal's compliance timeline presumes that the
regulated community is familiar with the leak repair provision
promulgated under the CAA. The commenter stated that a number of new
facility owners or operators have little to no experience with the CAA
section 608 regulations and requirements.
Response: Based on further consideration and informed by the
comments, the Agency is finalizing a single compliance date, rather
than two dates for the leak repair requirements for appliances with a
charge size of 15 pounds or more. The Agency is providing additional
time from what was proposed in both instances for owners and operators
to prepare to comply with the leak repair requirements. EPA disagrees
that a staggered compliance date would cause market confusion, as the
Agency has previously implemented staggered compliance dates for a
number of reasons. For example, the ALD provision in this final rule
has a staggered compliance date for new and existing IPR and commercial
refrigeration systems with a full charge of 1,500 pounds or greater to
ensure, among other considerations, that adequate supply is available
for owners and operators to comply with this provision.
The Agency agrees additional time may be necessary for the owners
and operators to prepare to comply with the leak repair provisions in
this final rule, specifically for owners or operators that may not have
been subject to the CAA section 608 requirements during the three-year
period described in this section. The Agency disagrees with one
commenter's claim that new facility owners would not be aware of the
leak repair provisions under the CAA. Before the rescission of the CAA
section 608 requirements in 2020, facility owners using appliances
containing ODS substitutes (e.g., HFCs) would have been subject to the
leak repair requirements under the CAA for three years. The Agency also
notes that not all portions of the 2016 CAA Section 608 Rule were
rescinded in the 2020 rule. For example, owners and operators utilizing
ODS substitutes, including HFCs, are subject to the venting prohibition
(40 CFR 82.154). Thus, owners or operators now subject to the leak
repair provisions in this rule should be well acquainted with similar
requirements under CAA part 82, subpart F or at a minimum, generally
aware of the leak repair requirements under CAA part 82, subpart F.
While EPA generally disagrees that newer facility owners are not aware
of previous requirements for HFCs or requirements for ODS, to the
extent this is true, the Agency provided notice in the proposal with
regards to the potential to finalize leak repair
[[Page 82722]]
requirements for refrigerant-containing appliances containing HFCs and
HFC substitutes with a GWP above 53 and is finalizing a later
compliance date allowing more time for owners and operators to
familiarize themselves with the requirements.
The Agency disagrees that compliance dates beyond January 1, 2026
(e.g., 18 months, two years, three years), are needed in order for
owners or operators to comply with the leak repair provision. EPA
determined that one year should be sufficient to prepare for the leak
repair provision. As discussed previously, the leak repair
requirements, aside from the charge size threshold and the limited ALD
installation and use requirements, are mostly aligned with the leak
repair requirements for ODS under the CAA. Further, the Agency finds
the timing of the compliance date to be appropriate, considering the
phasedown of HFCs, and does not find it appropriate to delay leak
repair of refrigerant-containing appliances that serve the purposes
described in subsection (h)(1). Commenters stated that owners and
operators need time to plan, procure, and implement the leak repair and
detection requirements; however, the commenters did not provide
analysis to show that owners and operators would not be able to comply
with the leak repair provisions by January 1, 2026, or why any of the
longer time frames suggested by commenters would be necessary for
compliance. For similar reasons, EPA disagrees with commenters
requesting additional time and staggered compliance dates based on
charge size. The Agency understands that to some extent, owners and
operators may need to conduct inventories of refrigerant-containing
appliances under their ownership and determine which appliances are
subject to the leak repair provision (i.e., applicability of
refrigerant-containing appliances in regard to charge size and
refrigerant being used). The Agency does not view this process to take
an exceptional amount of time, as owners or operators should be aware
of the full charge and type of refrigerant contained in an appliance
from previous service records or manufacturer specifications for the
refrigerant-containing appliance. The Agency refers owners or operators
to section IV.A.1 of this preamble, if they require guidance, for
determining the full charge of refrigerant-containing appliances. The
Agency also refers owners or operators to section IV.C.1 of this
preamble, for further information, regarding the applicability of HFC
substitutes to the leak repair requirements in this final rule. Owners
or operators have over a year to determine which refrigerant-containing
appliances are subject to the leak repair requirements and resolve any
uncertainty concerning the applicability of the refrigerant-containing
appliances in their ownership.
3. What leak repair provisions is EPA establishing?
EPA is finalizing the leak repair requirements under subsection (h)
largely as proposed. The EPA has made some modifications to the
proposed requirements to provide greater clarity or consistency among
the provisions. These requirements are part of implementing subsection
(h)(1) of the AIM Act, as these provisions control practices,
processes, or activities regarding servicing or repair of refrigerant-
containing appliances, which are a type of equipment, and involve a
regulated substance or a substitute for a regulated substance with a
GWP greater than 53. As described in section IV.C.2 of this preamble,
these leak repair requirements apply to refrigerant-containing
appliances with a charge size of 15 pounds or more where the
refrigerant contains an HFC or a substitute for an HFC with a GWP
greater than 53. The leak repair provisions finalized in this rule will
require action if such a refrigerant-containing appliance has been
determined to be leaking above the applicable leak rate threshold,
pursuant to the regulations. While most of the actions required under
the leak repair provisions are triggered by the determination that the
refrigerant-containing appliance has leaked above the applicable leak
rate threshold, the leak rate calculations and certain recordkeeping
requirements apply to refrigerant-containing appliances that are not
leaking above the threshold. While EPA is adopting the same applicable
leak rates for the leak repair requirements under subsection (h) as
applies under 40 CFR 82.157, as described in section IV.C.3.b of this
preamble, EPA is also establishing certain provisions that are
different from those included in 40 CFR 82.157, that support
identifying and potentially repairing leaks sooner (see section IV.D.1
of this preamble for requirements for ALD systems).
In the proposal, EPA reviewed the regulations promulgated under CAA
section 608, as codified in 40 CFR part 82, subpart F, addressing the
same or similar practices, processes, or activities as addressed in
this rulemaking to consider the extent appropriate to coordinate
requirements in those regulations with those in this action.
Specifically, EPA reviewed the leak repair requirements at 40 CFR
82.157, which do not apply to appliances containing HFCs or their
substitutes. The leak repair provisions under CAA section 608 contain
requirements for practices, processes, and activities related to
identifying and repairing leaks in appliances that contain ODS. As
discussed further in this section, EPA concludes that it is appropriate
to apply these practices, processes, and activities to appliances
containing HFCs and certain substitutes for HFCs under subsection (h).
EPA notes that in many cases, the same types of appliances (e.g.,
chillers, rooftop air conditioning units, supermarket systems) are
used, since HFCs are substitutes for ODS. EPA did not propose and is
not finalizing new requirements in this action where the provisions in
40 CFR part 82, subpart F already apply to appliances containing HFCs
and certain substitutes.
The following subsections provide additional information on the
leak repair requirements established by this final rule. Section
IV.C.3.a of this preamble provides information on leak rate
calculations, which are required whenever refrigerant is added to a
refrigerant-containing appliance. The Agency allows owners or operators
to use one of two leak rate calculation methodologies to determine the
leak rate of a refrigerant-containing appliance and whether repair is
required. Section IV.C.3.b of this preamble describes the timeline for
leak repair, requests for leak repair extensions, and applicable leak
rate thresholds for refrigerant-containing appliances. The exceedance
of a refrigerant-containing appliance's leak rate threshold triggers
the leak repair requirements of this final rule. Section IV.C.3.c of
this preamble provides information on verification testing, which is
necessary to determine that the repair of a leaking refrigerant-
containing appliance has not failed. Section IV.C.3.d of this preamble
describes the timeline for quarterly and annual leak inspections for
appliances that have passed the follow-up verification tests described
in section IV.C.3. Leak inspections of recently repaired refrigerant-
containing appliances ensure that repairs hold and assist in
determining if further repair action is required in the event a repair
fails. Section IV.C.3.e of this preamble provides information on
chronically leaking appliances, which are subject to specific reporting
requirements if a refrigerant-containing appliance expends more than
125 percent of its
[[Page 82723]]
full charge within a year. Section IV.C.3.f of this preamble describes
the process of submitting retrofit or retirement plans to the Agency in
the event a refrigerant-containing appliance cannot be repaired within
the leak repair timeframe discussed in section IV.C.3. Finally, section
IV.C.3.g of this preamble describes recordkeeping and reporting
requirements for owners or operators subject to the leak repair
requirements of this final rule.
Comment: Several commenters in support of the leak repair and
detection requirements supported the Agency's efforts to regulate HFCs,
as these requirements broadly enhance activities and practices that
further lifecycle refrigerant management (LRM). One of the commenters
stated that leak prevention is a cornerstone of LRM and stated that the
Agency has clear authority under the AIM Act to promulgate robust leak
prevention regulations that support LRM.
Response: EPA acknowledges commenters' support for the leak repair
and detection requirements in the final rule. While the Agency did not
base this rule or its provisions on lifecycle management, EPA agrees
that the leak repair and ALD requirements will reduce the severity of
leak events, minimizing refrigerant lost. These requirements and other
refrigeration management best practices as a part of larger refrigerant
management frameworks are important to EPA's implementation of this
final rule to serve the purposes described in subsection (h)(1) of
minimizing the release of regulated substances. The Agency also agrees
that it has the authority under the AIM Act to regulate HFCs and limit
their release through the leak repair and ALD requirements in this
final rule.
a. Leak Rate Calculations
EPA is adopting the requirements for leak rate calculations under
subsection (h) largely as proposed, with some modifications as
discussed in this section. Thus, refrigerant-containing appliances with
a charge size of 15 pounds or more of a refrigerant that contains an
HFC or a substitute for an HFC with a GWP greater than 53 are required
to conduct a leak rate calculation if the appliance is found to be
leaking. EPA is also requiring that the leak rate of covered appliances
be calculated every time refrigerant is added to an appliance, unless
the addition is made immediately following a retrofit, installation of
a new appliance, or qualifies as a seasonal variance, as described in
this and subsequent sections. EPA is not requiring the repair of all
leaks; rather, EPA is requiring repair of leaks such that the appliance
is below the applicable leak rate threshold consistent with the
requirements at 40 CFR 82.157. The calculation of the leak rate is used
to determine whether the appliance is leaking above the applicable
threshold, which in turn determines whether further action (i.e.,
repair) is required. For example, if an appliance owner adds
refrigerant to the appliance but does not calculate the leak rate, the
owner would have no means of determining if the appliance's leak rate
was below the applicable leak rate threshold. Hence, the owner would
not know if further action was warranted. Thus, the leak rate
calculations are also used to determine compliance with the leak repair
requirements. As stated in the proposal, this rulemaking's approach can
contribute to minimizing the releases of HFCs or their substitutes by
requiring more thorough leak inspections and verified repairs sooner.
In this final rule, the Agency is establishing two leak rate
calculation methodologies: the annualizing method and the rolling
average method. The utilization of leak rate calculation methodologies
is analogous to their use under subpart F. The strength of the
annualizing method is that it is future oriented and allows the owner
or operator to ``close out'' each leak event so long as the
requirements are followed and does not lump past leak events with the
current leak event. It considers the amount of time since the last
addition of refrigerant and then scales that up to provide a leak rate
that projects the amount of refrigerant lost over a whole year if the
leak is not fixed. As a result, this formula will yield a higher leak
rate for smaller leaks if the amount of time since the last repair was
shorter. The rolling average method also has its strengths. It accounts
for all refrigerant additions over the past 365 days or since the last
successful follow-up verification test showing that all identified
leaks were successfully repaired (if less than 365 days). If an owner
or operator verifies all identified leaks are repaired, this method
allows an owner or operator to ``close out'' a leak event. If there is
no follow-up verification test showing that all identified leaks were
successfully repaired within the last year, the leak rate would be
based completely on actual leaks in the past year. Owners and operators
are provided the flexibility to choose which methodology is most
advantageous to their operations. However, under this final rule once a
methodology is chosen, the owner or operator must continue using the
same methodology, so leak rate calculations remain consistent. Further,
under this final rule, owners or operators are to use the same leak
rate calculation methodologies for all affected appliances at a
facility. The two methods use two different paradigms to determine leak
rate--one is forward-looking/predictive, while the other is backward-
looking/retrospective. If an owner or operator were to switch between
methods, they would not get an accurate calculation because the time
frame being evaluated would be different for each method. In either
methodology, EPA is establishing that when calculating the leak rate,
any purged refrigerant that is destroyed is not counted towards the
leak rate. To qualify for this exemption, the purged refrigerant must
be destroyed at a verifiable destruction efficiency of 98 percent or
greater and the owner or operator must meet certain recordkeeping
requirements for the amount of refrigerant sent for destruction.
EPA is allowing a narrow exception for owners or operators to
change their leak rate calculation method in the final rule. There may
be some cases, such as change of ownership, where an owner or operator
may need to change the leak rate calculation method so that all
facilities under their ownership are using the same method. EPA views
this alignment of the leak rate calculation methodologies across
facilities as valuable to consistent management of refrigerant-
containing appliances across multiple facilities. In order for an owner
or operator to make this change in leak rate calculation, the owner or
operator must meet certain conditions. First, the owner or operator
must have recently purchased or otherwise acquired a new facility with
a refrigerant-containing appliance that was using a different leak rate
calculation method than the current leak rate calculation method used
by the owner or operator. Second, the owner or operator must ensure the
refrigerant-containing appliances at the purchased facility are leaking
below the applicable leak rate when the leak rate is calculated using
both methodologies. Third, if the leak rate calculation is changed, the
owner or operator is required to document why the change was made, the
date the change was made, and that the new leak rate calculation
methodology is used consistent with the record keeping requirements in
40 CFR 84.106(l)(3). EPA clarifies that an owner or operator cannot
change their leak rate calculation if it results in the avoidance of
leak repair (e.g., if an appliance
[[Page 82724]]
would be over the leak rate threshold using one method and below the
threshold using the other method).
Lastly, EPA acknowledges that the leak rate calculation requires
prior records in order to calculate the leak rate. Since owners or
operators are not required to keep records of additions of refrigerants
to an appliance prior to January 1, 2026, owners or operators may
calculate leak rates for appliances containing an HFC or HFC substitute
with a GWP greater than 53 as though there were no additions prior to
that date. For example, if an owner or operator is using the
annualizing method for the first addition of refrigerant in calendar
year 2026, the second term would be 365/365 (or ``1''). For subsequent
additions the second term would be 365 divided by the shorter of the
number of days since refrigerant was last added or 365. Alternatively,
if an owner or operator is using the rolling average method, for the
first addition of refrigerant in calendar year 2026, the numerator
would be the pounds of refrigerant added since the shorter of January
1, 2026, or the last successful follow-up verification test, if one was
conducted in 2026. For subsequent additions the numerator would be the
pounds of refrigerant added since the shorter of 365 days or the last
successful follow-up verification test. The Agency clarifies that this
method of calculating the leak rate is only allowed when previous
records are absent. After the effective date of this provision and the
first calculation of an appliance's leak rate, the owner or operator
must use the shorter number of days since refrigerant is added or 365
days for subsequent leak rate calculations.
Comment: The Agency received comments in support of the proposed
requirements and its alignment with the leak rate calculations under 40
CFR part 82, subpart F. One of the commenters requested that the Agency
allow a facility to move from the annualizing method to the rolling
average method for appliances regulated under 40 CFR part 82, subpart
F, and 40 CFR part 84, subpart C, which is what EPA assumes the
commenter intended to cite. The commenter claims that facility owners
that had been using the annualizing method prior to the 2016 CAA
Section 608 Rule continued to use that method due to the lack of
compliance assistance and unknowns regarding technicians' ability to
consistently document leak inspections. The commenter suggests that EPA
could allow an appliance that has not experienced a leak event in over
a year to move to a different leak calculation method.
Response: The Agency acknowledges comments in support of the
provision. In response to one commenter's request to allow facility
owners to change their leak rate calculation methodology for appliances
regulated under 40 CFR part 82, subpart F, and 40 CFR part 84, subpart
C, EPA notes that comments related to requirements under 40 CFR part
82, subpart F are outside the scope of this rulemaking and thus require
no response. To the extent that the comment pertains to appliances
subject to requirements to calculate leak rates under this action, the
Agency requires that once a leak rate calculation has been chosen, a
facility owner cannot switch to the other method. The leak rate
calculation methods use different paradigms to calculate a leak rate,
and switching between the two methods would not provide the facility
owner with an accurate leak rate calculation. Furthermore, allowing an
owner or operator to freely switch between leak calculation methods
incentivizes non-compliance with the leak repair requirements in this
final rule. As discussed in this section, the two leak rate calculation
methodologies are using different time frames (i.e., the annualizing
method is prospective, and the rolling average method is retrospective)
so switching between the two methods would create inconsistencies.
The Agency is providing a narrow exception for owners or operators
to switch their leak rate calculation method in the event of a change
in ownership if three conditions are met. First, an owner or operator
must have recently purchased or otherwise acquire a separate facility
that was using a different leak rate calculation method than the method
currently used by the purchaser. Second, the owner or operator must
ensure that all refrigerant-containing appliances at their facilities
are leaking below the applicable leak rate thresholds for said
appliances when the leak rate is calculated using both methods. For
example, if one supermarket were to purchase another supermarket that
was using a different leak rate calculation than the purchaser, the
owner or operator may change the leak rate calculation method to ensure
that all appliances at their facilities are using the same leak rate
calculation. The owner or operator must ensure that refrigerant-
containing appliances at both facilities are leaking below the
applicable leak rate threshold when calculating the leak rate using
both methods (i.e., that there is no exceedance of the leak rate
threshold under either method) and must document and keep a record of
this change. Third, records of this change must be kept in accordance
with 40 CFR 84.106(l)(3). EPA clarifies that an owner or operator may
not change their leak rate calculation if it results in the avoidance
of leak repair (e.g., if an appliance would be over the leak rate
threshold using one method and below it using the other method).
Comment: One commenter did not support the leak rate methodologies
in the proposed rule. One commenter stated the methodologies were
unduly complicated and resource-intensive and pose significant
challenges for companies that have multiple sites with appliances
subject to these requirements. The commenter's perspective on the rule
led them to believe that each leak must be documented separately, with
its own verification test. The commenter further asserted that it would
be impossible to know how much refrigerant was lost for each leak and
that finalizing the proposed methods would thus be arbitrary and
capricious. This commenter suggested that EPA could greatly simplify
compliance by allowing owners and operators to calculate leak rates
(and by setting compliance obligation triggers) based upon the
percentage of total full charge that an appliance has leaked,
cumulatively, during a calendar year. The commenter incorrectly stated
that this calculation would mirror the process that owners or operators
use to calculate whether an appliance is above the 125 percent
threshold for chronically leaking appliances. The commenter also
requested clarification on the leak calculation if there are two
simultaneous leaks.
Response: EPA is finalizing use of the methodologies for leak rate
calculations as proposed. The Agency notes that the later compliance
date as compared with the proposal should provide time for owners and
operators that were not subject to the ODS requirements to familiarize
themselves with the leak calculation methods. The Agency disagrees with
the commenter's assertion that the methodologies are overly burdensome
or complicated. The leak rate calculation methodologies are identical
to the requirements in the CAA section 608 regulations that have been
successfully used for nearly 30 years (see 1995 CAA Section 608 Rule;
60 FR 40420, August 9, 1995). EPA is providing owners and operators
flexibility by allowing them to use either methodology for a facility,
and therefore, the owner and operator can select whichever they judge
optimal for their specific appliances.
[[Page 82725]]
EPA disagrees with the commenter's recommended leak calculation
method because the annual calculation of a leak rate would allow for
refrigerant to be added throughout the year without the determination
of a leak rate. The final rule's basis for leak repair is the
determination of whether a leaking appliance has exceeded its
applicable leak rate when refrigerant has been added to the appliance,
as described in section IV.C.3.b of this preamble. The commenter's
proposed method would allow for the unmitigated release of refrigerant
in between leak rate calculations and would not achieve the final
rule's purpose of minimizing the release of refrigerants from
appliances. Further, EPA clarifies that the separate provision for
chronically leaking appliances does not mirror the leak calculation
provision and does not serve the purpose of ensuring appliances leaking
above the applicable leak rate threshold are repaired. As further
explained in section IV.C.3.e of this preamble, owners and operators of
a chronically leaking appliance (an appliance that leaks more than 125
percent of its full charge in one year) are required to submit an
annual report describing the efforts to identify leaks and repair the
chronically leaking appliance. This provision is intended to provide
information to EPA and further support efforts to minimize releases
from chronically leaking appliances, not to determine when appliance
repair is required.
EPA also disagrees with the commenter's assertion that the final
rule's leak rate calculation methodologies are arbitrary and
capricious. This comment appears to be based on a misunderstanding of
how the leak rate calculation applies, as the commenter states that it
would be impossible to know how much refrigerant was leaked from each
individual leak. The Agency clarifies that the leak rate calculation is
required when refrigerant is added to an appliance. The leak repair
requirements of the final rule are triggered when an appliance reaches
a leak rate above the applicable leak rate thresholds described in
section IV.C.2.b of this preamble. EPA is not requiring the mandatory
repair of all leaks discovered by an appliance owner. The Agency is
requiring leak repair for appliances above the applicable leak rate and
requiring the appliance owner to conduct leak repairs so that the
appliance is leaking below that threshold. While certain documentation
is required for individual leaks, that does not mean that the leak rate
calculation needs to be applied to each leak individually. The
commenter also asked for clarity of the leak rate calculation in the
event of multiple simultaneous leaks. EPA responds that simultaneous
leaks on the same appliance identified at the same time (e.g., during
the same inspection or servicing event) would require just one leak
rate calculation. The addition of refrigerant to an appliance triggers
the leak rate calculation for the appliance. If the appliance is
leaking above the applicable leak rate threshold, the owner or operator
must comply with the leak repair requirement and as part of that
process may uncover several leaks within an appliance that may require
repair in order to bring the appliance under the applicable leak rate
threshold.
Comment: One commenter recommended that EPA consider allowing leak
rate calculations from indirect ALD systems if acceptable accuracy can
be demonstrated at least 85 percent of the time. The commenter claims
their manufactured indirect ALD, with reliable data, has the ability to
calculate leak rates (in pounds per day) with a margin of error of +/-
25 percent.
Response: EPA acknowledges the suggestion on how indirect ALD could
be further used to manage leaks but disagrees that it is an acceptable
or viable alternative to the leak rate calculations required by this
final rule. Performing a leak rate calculation using one of the methods
in the final rule will provide a facility owner with an accurate leak
rate to determine if further leak repair action is necessary every
time. An approach that need only be demonstrated to be accurate 85
percent of the time, as commenter requested, could result in the
failure to identify and address leaks that exceed the leak rate
threshold and that this rule intends to address. Additionally, while an
indirect ALD system can calculate daily leak rates, the margin of error
would cause the leak rate calculation to be inaccurate. The leak rate
methodologies provide an accurate snapshot of an appliance's leak rate
when refrigerant is added and provides an owner or operator with an
immediate determination of whether an appliance needs to be repaired.
Comment: One commenter requested clarification on whether the
addition of certain components to existing appliances where refrigerant
is added would require a leak rate calculation, using the example of an
installation of a new refrigerated case in an existing supermarket
system. The commenter indicated the addition would necessitate a charge
size adjustment and the addition of new refrigerant to meet the
appliances' new BTU/h load. The commenter further stated that in this
scenario the refrigerant added to an existing appliance was not to
replace leaked refrigerant and that EPA should provide an exception to
the leak rate calculation provision in these specific cases.
Response: EPA clarifies that the immediate addition of refrigerant
following a retrofit, installation of a new appliance, or seasonal
variance does not require a leak rate calculation. The Agency agrees
that the addition of refrigerant immediately after additional
components are added to an existing appliance does not reflect a leak
within the appliances, and thus does not necessitate a leak rate
calculation. However, EPA clarifies that a full charge calculation, as
outlined in section IV.A.1 of this preamble, must be conducted to
determine the change in charge size when additional appliances are
added to an existing system. The determination of an appliance's full
charge is necessary for subsequent leak rate calculations.
b. Requirement To Repair Leaks, Timing, and Applicable Leak Rates
EPA is finalizing several leak repair requirements related to
determining when a leak needs to be repaired, the extent of the repair
required, and the timing of such repairs as proposed. EPA is requiring
the repair of leaks in refrigerant-containing appliances with a charge
size of 15 pounds or more with a refrigerant that contains an HFC or a
substitute for an HFC with a GWP greater than 53. Under this
rulemaking, owners or operators are required to repair an appliance
within 30 days (or 120 days if an industrial process shutdown is
required) of refrigerant being added to an appliance, if the appliance
is leaking above the applicable leak rate. Leaks must be repaired such
that the leak rate of the refrigerant-containing appliance is brought
below the applicable leak rate. Depending on the nature of the leaks,
it may be necessary to repair or replace multiple components or parts
of the refrigerant-containing appliance to comply with this
requirement. These requirements are consistent with the requirements
found at 40 CFR 82.157(d) to repair leaks for ODS-containing equipment.
Repairing leaks in a timely manner helps serve the purposes identified
in subsection (h)(1). For example, timely repair is critical to
reducing the emissions of refrigerants from leaking appliances, and
thus to minimizing releases of HFCs from equipment. In addition, by
repairing leaks in a timely manner, additional
[[Page 82726]]
HFC refrigerant will be subsequently available for reclamation, which
supports maximizing reclaiming of HFCs.
In some unforeseen circumstances, repair of leaks may require
additional time beyond that of the 30-day timeframe. EPA is finalizing
specific extensions that may be available for owners or operators to
repair leaks if certain conditions are met. Among these conditions, EPA
is requiring that one or more must be met to qualify for additional
time. Extensions for the leak repair requirements are available if the
appliance is located in an area subject to radiological contamination
or if shutting down the appliance will directly lead to radiological
contamination. Additional time is permitted to the extent necessary to
allow the completion of the repairs in a safe working environment.
Extensions are also available to owners or operators if the
requirements of any other Federal, State, local, or tribal regulations
make a repair within 30 days (or 120 days if an industrial process
shutdown is required) impossible. Additional time is permitted to the
extent needed to comply with the applicable regulations. EPA is also
finalizing extensions for when needed components that must be replaced
as a part of the leak repair are not available within the leak repair
timeframe of 30 days (or 120 days if an industrial process shutdown is
required). In this case, additional time is permitted of up to 30 days
after receiving the needed component, with the total extension not to
exceed 180 days (or 270 days if an industrial process shutdown is
required) from the date that the appliance exceeded the applicable leak
rate. In all cases of potential extensions to the leak repair
timeframe, an owner or operator is still required to repair leaks that
the technician has identified as significantly contributing to the
exceedance of the applicable leak rate and that do not require
additional time and to verify those repairs within the initial 30 days
(or 120 days if an industrial process shutdown is required). Owners or
operators availing themselves of this flexibility are also required to
document all repair efforts and provide a reason for the inability to
repair the leak within the initial 30-day (or 120-day if an industrial
process shutdown is required) time period. All extension requests must
be submitted electronically using the Agency's applicable reporting
platform and include pertinent information as described in the
regulatory text at 40 CFR 84.106.
In the final rule, a leak is presumed to be repaired if there is no
further addition of refrigerant to the equipment for 12 months after
the date of repair as demonstrated by a successful follow-up
verification test or if there are no leaks identified by either the
required periodic leak inspection(s) or an ALD system, where
applicable. Further information on the requirements for ALD systems are
described in section IV.D.1 of this preamble. While EPA is requiring
ALD systems for certain refrigerant-containing appliances, there may be
some cases where an owner or operator chooses to use ALD systems for
equipment where it is not required. Whether use of the ALD system is
due to requirements in section IV.D.1 of this preamble or used as a
compliance option in lieu of leak inspections (see section IV.C.3.d of
this preamble) for a specific appliance, if the ALD system detects a
leak in the 12-month period after the date of repair as demonstrated by
a successful follow-up verification test, the leak repair would be
presumed to have subsequently failed, unless the owner or operator can
document that the ALD system leak detection was due to a new leak that
is unrelated to the previously repaired leak. Such documentation
includes, but is not limited to, the records required to be kept under
40 CFR 84.108(i). Additional information on leak inspections is
described in section IV.C.3.d of this preamble. If an appliance is
mothballed, the timeframes for repair, inspections, and verification
tests are temporarily suspended and will resume when additional
refrigerant is added to the appliance (or component of an appliance if
the leaking component was isolated).
Comment: EPA received several comments related to the leak repair
timeline in the proposed rule. One comment, in support of the leak
repair provision, appreciated the clear timeline for leak repair and
ability to extend the timeline for repairing leaks to account for
delays in component shipments and arrivals. Some commenters requested
EPA lower the number of days to repair after initial detection. One
commenter suggested the Agency align its leak repair timeline with
CARB, requiring leaks to be repaired within 14 days after initial
detection to provide additional emissions reductions and reduce
refrigerant costs to appliance owners and operators. The commenter
shared that between 2020 and 2022, 99 percent of leak repairs under
CARB's refrigerant management program were completed within the 14-day
window. The commenter preferred EPA set the time extension to 45 days
from the date of leak detection for situations where certified
technicians or necessary components are not available and when an
industrial process shutdown is required. The commenter did not support
any extension more than 180 days. Another commenter did not support
leak repair extensions for appliances with smaller refrigerant charge
sizes.
Response: The Agency acknowledges the comments in support of the
provision. The Agency is finalizing the requirements for the timely
repair of leaks as proposed, recognizing that these timelines and the
potential extensions are consistent with the longstanding requirements
under 40 CFR part 82, subpart F. EPA is not finalizing a shorter leak
repair timeline in the final rule, as one commenter suggested. The
Agency recognizes that leaks often can be adequately repaired in under
30 days, including, as the commenter stated, in as little as 14 days.
However, EPA finds it prudent to keep the existing leak repair timeline
and extensions in part because EPA anticipates that applying a time
frame that is consistent with the leak repair timeline under part 82,
subpart F, will facilitate compliance with both regimes and reduce the
potential for confusion. The Agency encourages owners or operators to
strive to repair leaks as soon as practicable and in less than the
required timeframes when possible, so as to, for example, reduce
emissions, improve system efficiencies, and avoid spoilage of
perishable goods. However, in other circumstances the full 30 days may
be needed to adequately complete the repairs, so the final rule's leak
repair timeline provides owners or operators with sufficient time and
flexibility to repair leaks correctly. The final rule also provides
owners or operators an opportunity to extend the leak repair time up to
180 days (270 in the event of an industrial process shutdown) if
sufficient reasoning is provided. Additionally, EPA notes that the
final rule's leak repair extension provisions encourage the proper
repair of an appliance where additional time is needed. In EPA's view,
such repairs may include the replacement of major components, if
necessary, rather than simply patching those components, an approach
that may not be successful in the longer term. Furthermore, some owners
or operators may prefer to replace a faulty component before they are
required to retrofit or retire an entire appliance and believe this
could, in many instances, be an equally effective means to address
needed repairs. This extension should also reduce the potentially large
burden upon owners or
[[Page 82727]]
operators of requiring a large-scale retrofit or retirement when
replacing the leaking component might satisfactorily repair the
appliance. For these reasons, EPA disagrees with one commenter's
recommendation that the Agency adopt a shorter leak repair timeline
(i.e., 14 days) or not allow timeline extensions beyond 180 days.
EPA is also not differentiating the leak repair timeline based on
charge sizes as one commenter recommended. This final rule lowered the
applicable charge size threshold for leak repair to 15 pounds,
extending leak repair requirements to refrigerant-containing appliances
not previously subject to the leak repair provisions under part 82,
subpart F. In this action, the leak repair timeline for all appliances
is the same regardless of charge sizes. Although appliances at lower
charge sizes may be less complex and easier to repair in a timeframe
lower than 30 days, the Agency reiterates the final rule's repair
timeline is intended to provide sufficient time to correctly repair
appliances below their applicable leak rate thresholds. EPA also notes
that smaller refrigerant-containing appliances are not precluded from
submitting extension requests as long as the owner/operator has
provided sufficient reasoning. The only narrow differentiation in the
timing of leak repair in the final rule is for IPR systems in the event
of an industrial process shutdown due to the complexity of adequately
repairing these refrigerant-containing appliances. Additionally, the
Agency views this change as unnecessary because the addition of
variable leak repair timelines based on charge size may introduce
additional complexity and reduce compliance with the provision. As
discussed previously, the leak repair timeline under this final rule is
consistent with the leak repair timeline under part 82, subpart F, as a
means of facilitating compliance with both regimes and reducing
confusion for owners or operators.
Comment: A few commenters requested the compliance timelines for
leak repair be extended. Two of the commenters emphasized that the
complexity and size of supermarket and IPR systems, the current
shortage of technicians, the long lead time for obtaining replacement
equipment, and potential operational disruptions will make the leak
repair timeline unfeasible. One commenter requested that the timeline
extension should not be limited to a maximum of 180 or 270 days because
the process to identify and repair a leak in IPR appliances is likely
to exceed the applicable timeframes. Another commenter suggested that
all but de minimis leaks be identified and repaired ``promptly''
without a specified deadline. The commenter stated that EPA could
require an owner/operator to report the progress of leak repair without
an arbitrary mandatory deadline. Alternatively, the commenter suggested
EPA should not start the leak repair ``clock'' when a leak is detected
but rather when the exact location of a leak is determined, further
claiming this would allow technicians time to implement mitigation
measures and therefore reduce any incentive for owners and operators to
delay repairs. Another commenter suggested EPA could consider an
exception process to grant additional time and temporarily or
permanently extend the leak repair timeline for situations with
technician and component shortages, supply chain disruptions, and other
reasonable circumstances.
Response: EPA disagrees with the commenter's recommendation that
leak repairs should not have a set timeline for completion or that EPA
should consider an exception process. Timely repair of leaks
contributes to reducing emissions. As stated in responses to other
similar comments, the Agency understands that repairs often happen
faster than the designated timelines. Regarding IPR appliances, the
Agency is aware, as the commenter stated, that IPR appliances are large
and complex and may require additional time or operational shutdowns to
determine the leak location. The regulation includes a longer timeline
for repairs to IPR, which EPA considers appropriate in light of the
differences between IPR and other appliances. Similarly, although
supermarket systems and commercial refrigeration systems may be
complex, owners or operators should typically be able to repair
appliance leaks under the applicable threshold within the final rule's
allotted timeframe. For example, the final rule allots up to 180 days
for commercial refrigeration appliances (e.g., supermarket systems) to
complete repairs in the event necessary components or replacement
equipment are not readily available (noting that the owner/operator
would need to complete the repair within 30 days of receiving the
missing component or replacement equipment).
EPA disagrees that owners or operators would be unable to determine
the location of a leak and repair the leak within 30 days (120 days for
an industrial process shutdown). As experience with the CAA section 608
programs shows these have been reasonable timelines, including for IPR
and commercial refrigeration appliances with charge sizes of 50 pounds
or higher. The Agency also notes that extension requests function
similarly as they did under the CAA, providing a process for an owner/
operator to extend the timeline in the event of technician shortages,
component supply issues, and industrial process shutdowns. If an
extension is not available and the leak repair requirements cannot be
met in the final rule's timeframe (e.g., due to the severity of the
leak or condition of the appliance), the owner or operator would need
to create a retrofit or retirement plan as described in section
IV.C.3.f of this preamble. Allowing for an unlimited time to repair
leaks would not provide any incentive for an owner or operator to
repair the leak, which would release more refrigerant from the
equipment and thus make less HFCs available for recovery from the
appliance and reclamation.
EPA also disagrees with one commenter's assertion that the 30-day
leak repair timeline is arbitrary. The authority granted to EPA under
subsection (h) of the AIM Act directs the Agency to establish certain
regulations for purposes including minimizing the release of regulated
substances from equipment and maximizing the reclamation of regulated
substances. The Agency concludes that the final rule's leak repair
timeline is an important component of the leak repair requirements
serving these statutory purposes while also providing owners and
operators with the flexibility to repair leaks in a timely and
efficient manner. The Agency reiterates that the same leak repair
timeline has been in effect under the CAA section 608 regulations for
decades. For similar reasons, the Agency disagrees with one commenter's
suggestion to not start the leak repair ``clock'' until the exact
location of the leak is detected. EPA disagrees that this method of
leak repair timing would reduce incentive for owners or operators to
delay the repair of leaks. The Agency views the commenter's suggestion
as providing an indeterminate amount of time to repair leaks, which in
turn incentivizes owners or operators to delay finding and repairing
leaks, as the timeline for repair is subject to the discovery of a leak
location, not based on the appliance leaking above the applicable leak
rate threshold. The final rule provides ample time for owners or
operators to determine the source of an appliance's leak and provides
additional flexibility to extend the leak repair timeline if certain
conditions are met. Thus, the Agency finds the commenter's suggested
approach flawed with regard to repairing leaks in a timely manner. The
[[Page 82728]]
Agency also disagrees with the commenter's request that EPA require all
but de minimis leaks to be repaired. In the context of the prohibition
on venting or otherwise releasing into the environment any refrigerant
under CAA section 608 (40 CFR 82.154), the term ``de minimis'' refers
to releases associated with good faith attempts to recycle and recover
refrigerants, noting that such releases are not subject to the
prohibition. In other words, were EPA to require all but de minimis
leaks to be repaired, and to interpret the term consistently with how
it has been interpreted under CAA section 608, the Agency would be
finalizing repair of nearly all leaks, not repairs to below a
threshold. That would be a significant change that the Agency did not
propose and is not finalizing in this rulemaking.
Comment: One commenter suggested that EPA should also consider a
condition that the refrigerant must be removed to trigger the proposed
leak validation exclusion for mothballed equipment.
Response: EPA is unclear as to what the commenter refers to as a
``leak validation exclusion''; however, we clarify that mothballed
appliances must have their refrigerant evacuated before the leak repair
timeline is suspended. The definition of ``mothball'' is available at
40 CFR 84.104, which is being finalized in this action, and reads:
Mothball, as it relates to a refrigerant-containing appliance,
means to evacuate refrigerant from an appliance, or the affected
isolated section or component of an appliance, to at least atmospheric
pressure, and to temporarily shut down that appliance.
EPA is finalizing the applicable leak rate thresholds for
refrigerant-containing appliances with a charge size of 15 pounds or
more with a refrigerant that contains an HFC or a substitute for an HFC
with a GWP above 53 as follows: 20 percent leak rate for commercial
refrigeration equipment; 30 percent leak rate for IPR equipment; and 10
percent leak rate for comfort cooling appliances, refrigerated
transport appliances, or other refrigerant-containing appliances not
covered as commercial or industrial process refrigeration appliances.
The leak rate thresholds are used to determine whether repair is needed
for an appliance that is leaking, as the leak repair requirements are
triggered if the appliance exceeds the leak rate threshold. See 40 CFR
84.106(c)(2). EPA is applying applicable leak rates that mirror those
currently in effect for ODS-containing appliances under the 2016 CAA
Section 608 Rule. See 40 CFR 82.157(c) (d). These rates were in effect
for appliances containing 50 pounds or more of HFCs for a period of
time. After reviewing the information and analysis that supported
application of these leak rates to those HFC appliances and considering
the provisions of subsection (h) and the comments offered on the
proposal to extend these thresholds to the equipment subject to the
leak repair requirements under this rule, EPA has determined it is
appropriate to finalize them, as proposed, in this action.
As discussed in section IV.C.2 of this preamble, EPA is finalizing,
as proposed, the application of leak repair requirements to appliances
using an HFC and/or a substitute for HFCs with a GWP greater than 53,
as a refrigerant (neat or in blends) based on a charge size threshold
of 15 pounds or greater, with certain exceptions. EPA is requiring the
use of the same leak rate threshold across categories of equipment for
all covered appliances. In other words, a 20 percent leak trigger rate
applies for commercial refrigeration equipment with a full charge size
of 15 pounds or more, and a 10 percent trigger leak rate applies for
comfort cooling appliances with a full charge size of 15 pounds or
more. For refrigerant-containing appliances in certain subsectors and
applications that have not been previously covered under 40 CFR 82.157,
EPA is finalizing determinations for the applicable leak rates listed
in 40 CFR 84.106(c)(2)(iii). For example, for refrigerated transport--
rail, EPA is finalizing that this application is considered under the
comfort cooling and other appliances category and has an applicable
leak rate of 10 percent.
As noted in the proposal, EPA views these applicable leak rates per
the type of appliance as appropriate for the leak repair provisions in
this action under subsection (h) of the AIM Act. This rulemaking draws
on EPA's experience implementing similar requirements under CAA section
608, where these thresholds have provided a practical and effective
method for determining when leaks must be repaired. In the proposal,
the Agency considered whether a lower percent leak rate for some or all
of the categories of appliances would be more appropriate for
appliances that contain HFCs and/or substitutes for HFCs. EPA reviewed
the docket for the 2016 CAA Section 608 Rule, which lowered the
applicable leak rates for each of the appliance
categories.72 73 EPA also evaluated leak rate data of
appliances in each of the applicable categories to determine the
appropriate applicable leak rates and reviewed information from
stakeholders shared during public meetings held in the development of
this rulemaking.\74\ EPA did not propose and is not finalizing changes
to the applicable leak rates for categories of appliances containing
HFCs and covered substitutes. However, the Agency notes that we could
revisit the applicable leak rates as appropriate to support the overall
purposes of subsection (h) in the future.
---------------------------------------------------------------------------
\72\ Docket No. EPA-HQ-OAR-2015-0453
\73\ For further information, please see the discussion in the
2016 CAA Section 608 Rule at 81 FR 82272, 82317 and the technical
support document, Analysis of the Economic Impact and Benefits of
Final Revisions to the National Recycling and Emission Reduction
Program, available in the docket for the 2016 CAA Section 608 Rule
(EPA-HQ-OAR-2015-0453)
\74\ EPA held stakeholder meetings for public input on November
9, 2022, and March 16, 2023, and also solicited feedback through a
webinar for EPA's GreenChill Partnership program on April 12, 2023.
---------------------------------------------------------------------------
Comment: EPA received mixed support for the applicable leak rates
for commercial refrigeration, IPR, and comfort cooling. Some commenters
stated that EPA could go lower for some of the appliance sectors, and
others suggested that EPA increase the leak rate thresholds for certain
subsectors. One commenter, in support of the provision, stated that
leak rate thresholds aligned with the CAA section 608 regulations are
appropriate and should not be further adjusted. Another commenter
echoed that the leak rate thresholds did not need to be changed because
the final rule would already subject a large group of appliances to
mandatory time-limited repairs, reporting, and in some cases, retrofit
or retirement. The same commenter stated that lowering the leak rate
threshold would make appliances impossible to manage due to the number
of appliances affected by the leak repair provisions in the final rule.
Two commenters did not support the proposed leak rates, citing
difficulty to manage, the number of systems it would affect from the
outset, and impracticality and burden of the requirements. One
commenter stated that small chillers used in the semiconductor industry
are not applicable to the provision because leaking chillers are
normally removed from service. The commenter requested clarity on
whether equipment removed from service is exempt from the leak repair
requirement. One of the commenters stated that typical food retail
refrigeration appliances have an estimated 25 percent annual leak rate
and the rule would force the average supermarket system into immediate
repair, verification, and potential retrofit or retirement. The
commenter also
[[Page 82729]]
suggested EPA eliminate the leak rate thresholds altogether and allow
operators to perform a calendar year leak rate calculation each time
the operator adds refrigerant, as owners or operators are incentivized
to repair leaks to avoid high refrigerant costs and store operations.
Several commenters did not support EPA's proposed leak rate
threshold of 20 percent for commercial refrigeration appliances and
suggested lower targets to ensure climate and economic benefits.
Commenters recommended EPA lower the applicable leak rate to 15
percent. One commenter incorrectly stated that the GreenChill voluntary
program requires a maximum 15 percent leak rate for stores and 5
percent for the platinum standard, which over half of certified stores
in this program have achieved.
EPA received similar comments regarding the 30 percent leak rate
threshold for IPR. Several commenters recommended EPA lower the
applicable leak rate for IPR to 20 percent. The commenters also stated
that the 20 percent threshold would align with CARB's refrigerant
management program and push more facilities to require mandatory
repairs. One commenter stated that an IPR system can leak a quarter of
its full charge without triggering any leak repair requirements. The
commenter asserted that a facility leaking 25 percent of its
refrigerant annually will leak out five times as much refrigerant over
the course of its life as will be available to recover when it is
eventually retired. The commenter also stated that trigger leak rates
create a perverse incentive for underreporting and repairing leaks and
suggested the Agency revisit these thresholds in the future. Another
commenter suggested EPA instate a 10 percent leak rate for IPR chillers
specifically because they are compact, sealed appliances with a similar
design to comfort cooling appliances that have a 10 percent leak rate
threshold. Another commenter suggested the IPR and comfort cooling leak
rates should align with Washington State's requirements of 24 percent
and 8 percent, respectively. The commenter also urged EPA to consider
setting a time frame to revisit reducing these leak thresholds to
provide greater climate benefits and guarantee that leak detection
systems meet minimum standards.
Response: The Agency is finalizing the leak rate thresholds as
proposed. When developing the proposed rule, the Agency considered a
number of options for the appropriate leak rate thresholds for
commercial refrigeration, IPR, and comfort cooling and decided on
proposed requirements that were consistent with the trigger rates that
were finalized in the 2016 CAA Section 608 Rule. Under the 2016 CAA
Section 608 Rule, EPA determined that lowering the leak rate thresholds
was reasonable when considering the compliance costs, savings,
environmental benefits and fewer emissions of both ODS and, at the
time, non-exempt substitute refrigerants (e.g., HFCs). The Agency found
it prudent to align the leak rate thresholds in this final rule with
CAA section 608 based on similar factors. Further, the alignment of
this provision with leak rate thresholds under CAA section 608 should
assist in facilitating compliance with the provision, as owner/
operators should be familiar with the similar requirements under CAA
section 608. EPA also notes that this rulemaking extends the leak
repair requirements to a larger group of appliances that were
previously not subject to the leak repair requirements under CAA
section 608. The Agency wants to ensure that all appliances subject to
the leak repair requirements are able to meet the standards in the
provision, and lowering the leak rates at this time may further limit
compliance with the provisions of this final rule. Commenters' views
include those expressing support for consistency and those suggesting
more or less stringent trigger rates. None of these commenters provided
sufficient information to conclude that a more or less stringent
trigger rate is appropriate. Therefore, EPA is finalizing, as proposed,
trigger rates that generally align with 40 CFR part 82, subpart F, in
agreement with commenters indicating a preference for consistency. EPA
notes that we may revisit the leak rate thresholds in the future
through a separate notice-and-comment rulemaking if the Agency finds
that the alternate thresholds suggested by commenters are warranted.
Furthermore, the Agency disagrees with one commenter's argument that
leak rate thresholds create perverse incentives to underreport leaks
and avoid repair of appliances. Leak rate thresholds have been utilized
as a method of compliance for leak repair for nearly 30 years under the
rationale that fixing all leaks in an appliance may hamper compliance
and force appliances into early retrofit or retirement before the end
of their useful life. EPA acknowledges that, for example, small pin
hole leaks in a complex IPR system may be hard to find and repair and
ultimately have a low leak rate compared to larger leak events that
push a refrigerant-containing appliance above the applicable leak rate
threshold. As stated previously in the preamble, when the applicable
leak rate is exceeded, repairing those leaks is warranted to minimize
the release of refrigerants from equipment.
EPA disagrees with commenters' assertions that the leak rate
thresholds would be unduly burdensome. While there are more affected
appliances under this final rule given the lower charge size threshold
compared to ODS appliances, the Agency notes that on the whole,
commenters supported that 15-pound threshold. Moreover, there have been
changes to the appliance design since the Agency first established leak
repair requirements for ODS refrigerant-containing appliances. The
Agency does not view applying the leak repair provisions in this final
rule, specifically the applicable leak rate threshold, to appliances
with a charge size between 15 and 50 pounds as unduly burdensome. Many
of the appliances with a charge size under 50 pounds have an applicable
leak rate of 10 percent (e.g., appliances that are not IPR or
commercial refrigeration); however, refrigerant-containing appliances
at this charge size are at a relatively low risk of leaking compared to
larger appliances. Additionally, appliances closer to a charge size of
15 pounds are also more likely to be hermetically sealed and thus have
a low leak potential. Furthermore, as detailed in IV.C.2 of this
preamble, EPA has provided a narrow exemption from the leak repair
provision for residential and light commercial air conditioning and
heat pumps, which will further limit the number of refrigerant-
containing appliance subject to the leak repair requirements.
Further, given that HFCs are being phased down as compared to ODS,
which are being phased out, HFCs and HFC substitute refrigerants with a
GWP greater than 53 can be used indefinitely. Given that there is no
date by which HFCs can longer be charged into appliances, it is
paramount that EPA take steps to prevent leaks, reduce emissions, and
maximize reclamation. Additionally, because the HFC phasedown will
greatly limit the supply of virgin HFCs available to service
appliances, the timely repair of leaks is required to limit the
emissions of HFCs. The leak rate thresholds, in the final rule,
facilitate the timely repair of leaking appliances, which will mitigate
the amount of refrigerant lost and needed to service an appliance. Leak
rate thresholds ensure owners and operators will take appropriate
action to repair leaks so that their appliances are below the
applicable leak rate threshold.
[[Page 82730]]
In regard to chillers used in the semiconductor industry, the
commenter stated that small semiconductor chillers are typically
removed from service if they begin leaking. EPA understands that these
chillers are distinct, hermetically sealed devices that are removed
when in need of servicing, and that such servicing is performed at a
separate location, including at locations outside of the United States.
If the chiller contains less than 15 pounds of refrigerant, as would be
the case with many in this industry, the leak repair requirements do
not apply. For chillers with 15 pounds of refrigerant or more, the
Agency clarifies that appliances removed from service, that have their
full charge evacuated and recovered, are not subject to the full suite
of the leak repair requirements. An owner/operator may do this to
conduct further repairs, to mothball the appliance for future repairs,
or due to a retrofit or retirement plan (see section IV.C.3.f of this
preamble). In the specific case of these semiconductor chillers, once
the determination has been made that the appliance is leaking above the
threshold rate and needs to be taken out of service, the owner/operator
would need to evacuate and recover all refrigerant from the appliance
in a way similar to how an owner/operator would mothball an appliance.
Once repairs are made and the appliance is recharged for service, it is
required to meet all of the requirements in the final rule's leak
repair provision.
EPA also disagrees with one commenter's suggestion to forgo leak
rate thresholds in favor of allowing calendar year leak rate
calculations each time the owner or operator adds refrigerant because
owners and operators should already be using some methodology for
calculating their leak rate after adding refrigerant into an appliance.
The Agency clarifies that leak inspections and the calculation of a
leak rate does not equate to leak repair. Under the provisions
finalized in this action, if an appliance is leaking above the
applicable leak rate threshold, the owner or operator must repair any
leaks to ensure the appliance's leak rate is brought below said
threshold. Without a leak rate threshold there would not be a clear
metric for determining when the leak repair requirements were triggered
or when the appliance had been sufficiently repaired. The Agency also
disagrees that appliance owners would repair leaks in a timely manner
based on the incentive to save on refrigerant costs or to avoid
operational disruptions alone. While EPA agrees that the leak repair
provisions in this final rule are anticipated to have the effect of
avoiding additional refrigerant costs and operational disruptions in
many situations, financial motivations to conduct leak repair do not
always align with the rule's purpose of minimizing the release of HFCs
and their covered substitutes. For example, an owner/operator, in some
cases, may find it more financially optimal to continually add
refrigerant to an appliance instead of repairing it, or an owner/
operator may not have adequate information about the costs associated
with failure to repair leaks in making decisions about whether to
voluntarily repair leaks. In EPA's view, the leak rate thresholds are
an important part of the regulatory design of the leak repair
requirements and help ensure that they serve the statutory purposes
identified for regulations under subsection (h) to minimize the release
of regulated substances from equipment and maximize reclamation.
The commenter also stated that the average annual leak rates for
supermarkets is 25 percent and that the rule would require immediate
repair of supermarket systems. The Agency responds that the purpose of
the final rule is to minimize the release of regulated substances from
appliances. If a supermarket system is leaking at a rate higher than 20
percent, the owner/operator would be required to repair leaks to the
extent and within the timeframe specified in the final rule.
Furthermore, the Agency disagrees with the commenter's assertion that
the final rule would force supermarket owner/operators to repair and
potentially retrofit or retire systems immediately, once the leak
repair provisions go into effect, because the average supermarket has
an annual leak rate of 25 percent. EPA reiterates that the leak repair
provisions of this final rule are relatively consistent with the
requirements for ODS refrigerants that have been and continue to be in
use in supermarkets throughout the United States. EPA has also extended
the compliance date for the leak repair provision by more than one year
to further accommodate owner/operators' compliance with the provision.
Moreover, the Agency notes that the 25 percent leak rate average that
FMI cites for supermarkets is nearly double the less than 15 percent
average leak rate GreenChill partners voluntarily report to EPA on an
annual basis. Many GreenChill partners have been able to consistently
achieve lower leak rates by adopting newer system technologies, using
newer refrigerants, applying best practices, and maintaining leak-tight
systems to decrease refrigerant emissions. The GreenChill voluntary
partnership has also hosted webinars discussing these topics, which are
available to the public. The purpose of this rule is to minimize the
release of regulated substances from appliances. If any commercial
refrigeration system is leaking above the applicable leak rate of 20
percent, an owner or operator is required to take the necessary steps
to repair their appliance to the extent required within the timeframe
specified in this final rule.
In response to one commenter's characterization of leak rates
reported under the GreenChill voluntary partnership, the Agency
clarifies that GreenChill does not have any requirements for specific
leak rates in order to be a member. The leak rate thresholds cited by
the commenter are award thresholds used by the Agency to recognize
lower leak rates reported to EPA. The partnership represents over a
third of U.S. supermarkets; however, the Agency does not know if
supermarkets not in the GreenChill voluntary partnership are doing
better or worse than the voluntary members. As previously stated, the
Agency may reconsider the leak rate thresholds in a future notice-and-
comment rulemaking but cannot justify changes to those thresholds
solely on the basis of voluntary reporting under the GreenChill
voluntary partnership.
c. Verification Testing
EPA is finalizing its requirements for initial and follow-up
verification tests as proposed. The Agency is requiring initial and
follow-up verification for refrigerant-containing appliances with a
charge size of 15 pounds or more of a refrigerant that contains an HFC
or a substitute for an HFC with a GWP greater than 53 as a part of the
leak repair provisions under subsection (h). These requirements are
analogous to similar provisions for affected ODS-containing appliances
under CAA section 608 under 40 CFR 82.157(e). The final rule requires
owners or operators to conduct initial and follow-up verification tests
within specified timeframes for each leak that is repaired. The initial
verification test is required to be performed within 30 days (or 120
days if an industrial process shutdown is required) of an appliance
exceeding the applicable leak rate and must demonstrate that leaks are
repaired, where a repair attempt was made. The initial verification
test verifies that the leak has been repaired prior to adding
refrigerant back into the appliance, and the follow-up
[[Page 82731]]
verification test confirms that the repair held after refrigerant has
been added and the appliance has been brought back to normal operating
characteristics. The follow-up verification test is required to be
conducted within 10 days of a successful initial verification test or
10 days after the appliance has returned to normal operating conditions
(if the appliance or isolated component of the appliance was evacuated
to perform repairs). The follow-up verification test is necessary to
confirm that the leak repair has held after the refrigerant-containing
appliance has been recharged, pressurized, and returned to normal
operating conditions. If the initial or follow-up verification tests
indicates that a leak repair was not successful, the owner or operator
may conduct as many additional repairs and initial or follow-up
verification tests as needed to achieve a successful leak repair within
the applicable time period.
EPA notes that in some cases, a follow-up verification test may be
impossible; for example, when it would be unsafe to be present when the
system is at normal operating characteristics and conditions. Where it
is unsafe to be present or otherwise impossible to conduct a follow-up
verification test when the system is at normal operating
characteristics and conditions, the Agency is requiring that where
practicable, the follow-up verification test be conducted prior to the
system returning to normal operating characteristics and conditions. In
such situations, the owner or operator has the burden of showing that
it was unsafe to be present when the system is at normal operating
characteristics and conditions.
As discussed in the proposal, verification testing involves
important practices, processes, and activities regarding the repair and
servicing of equipment. The tests are performed shortly after an
appliance has been repaired to confirm that the leak has been
successfully repaired. Without the verification tests, it may take
additional time for the owner or operator to realize that the repair
has been unsuccessful and during that time refrigerant could continue
to leak from the appliance. The provision is designed to help ensure
that leaks are repaired successfully and that the repair holds, so that
repair has the intended effect of limiting refrigerant emissions from
the appliance. EPA is finalizing requirements that the verification
tests must be performed for all leak repairs to ensure that the leak
repair is done correctly the first time, holds, and has its intended
effect, which will help minimize releases of HFCs from the appliance,
and also help maximize HFCs available for eventual reclamation by
limiting such releases.
Comment: A commenter stated that a properly commissioned system
should not require an additional verification step in later weeks or
follow-up leak requirements. They asserted that properly commissioned
maintenance work, as required by UL 60335-2-40 and UL 60335-2-89, or
another appropriate standard should be sufficient. The commenter
recommended EPA restrict this requirement to systems with very large
charge sizes, perhaps above 500 pounds, to be consistent with other
thresholds set in the rule. The commenter also suggested EPA should
require reporting if a leak is repaired in a system that has to be
recharged again within six months.
Response: EPA is finalizing the verification test provision as
proposed. The Agency disagrees that properly commissioned maintenance
work does not need to go through the leak repair verification process.
The standards required by UL 60335-2-40 and UL 60335-2-89 are industry
standards, developed by consensus and concerned with appliance design
and manufacture. The standards do not speak to the operations of an
appliance over multiple years. Instead, UL standardizes leak prevention
requirements in the appliance's design, standardizes leak detection
through sensors or other mechanisms, and provides standards to mitigate
the release of refrigerants via releasable charge considerations.\75\
Moreover, the leak repair requirements and thus the need for
verification tests begin when an appliance exceeds its applicable leak
rate. If an appliance is well designed and follows practices consistent
with the requirements of the standard, perhaps there will not be an
occurrence of leaks that result in an exceedance of the applicable leak
rate and thus the owner/operator would not need to proceed with the
final rule's leak repair process.
---------------------------------------------------------------------------
\75\ ASHRAE Standard 15-2022 defines releasable charge as a
portion of the system refrigerant charge that can be released into a
space as a result of a single point failure.
---------------------------------------------------------------------------
The Agency also disagrees that the verification requirement be
restricted to appliances with very large charge sizes because the
purpose of the provision is to ensure that leaks are properly repaired
and that those repairs hold, such that the repair has its intended
effect and emissions are minimized. We also disagree with the
suggestion that EPA require reporting if an appliance is recharged
within six months of a leak repair, as this is not a reasonable
substitute for verification tests or leak inspections of repaired
appliances. EPA clarifies that a leak is considered repaired if
refrigerant is not added within 12 months of the previous leak repair
or if there are no leaks identified by either the required periodic
leak inspection(s) or an ALD system, where applicable. Verification
tests ensure repairs hold and leak inspections verify that the repaired
leak has not failed over a 12-month period; both are warranted portions
of the leak repair process and support meeting the purposes identified
in subsection (h)(1), including minimizing the release of regulated
substances from equipment.
d. Leak Inspections
The Agency is finalizing leak inspection requirements as proposed
for refrigerant-containing appliances with a charge size of 15 pounds
or more of a refrigerant that contains an HFC or substitute for an HFC
with a GWP greater than 53 that are found to be leaking above the
applicable leak rate threshold. As discussed in the proposal, the leak
inspection requirements involve processes, practices, and activities
regarding the repair of refrigerant-containing appliances that are
designed to ensure the long-term effectiveness of a successful leak
repair. Thus, the requirements will help minimize any releases of HFCs
from equipment over time and also help maximize HFCs available for
eventual reclamation by limiting such releases. The owner or operator
is responsible for ensuring that the leak inspections are conducted
consistent with the applicable requirements in 84.106.
Leak inspection frequency is dependent on the type of appliance and
the size of the appliance (by refrigerant charge size). For commercial
refrigeration and IPR appliances that have a charge size of 500 pounds
or more of a refrigerant that contains an HFC or a substitute for an
HFC with a GWP greater than 53, EPA is requiring leak inspections to be
performed every three months after the date of repair as demonstrated
by a successful follow-up verification test until the owner or operator
can demonstrate that the appliance has not exceeded the applicable leak
rate for four consecutive quarters. For commercial refrigeration and
IPR appliances that have a charge size between 15 and 500 pounds of a
refrigerant that contains an HFC or a substitute for an HFC with a GWP
greater than 53, EPA is requiring that leak inspections be performed
once per year after the date of repair demonstrated by a successful
follow-up verification test until the owner or
[[Page 82732]]
operator can demonstrate that the refrigerant-containing appliance has
not exceeded the applicable leak rate for one year (i.e., 12 months).
For comfort cooling and other appliances that have a charge size of 15
pounds or above of a refrigerant that contains an HFC or a substitute
for an HFC with a GWP above 53, EPA is requiring that leak inspections
be performed once per year after the date of repair demonstrated by a
successful follow-up verification test until the owner or operator can
demonstrate that the equipment has not exceeded the applicable leak
rate for one year (i.e., 12 months). In each case, to demonstrate an
appliance has not exceeded the applicable leak rate, the leak rate is
calculated during a leak inspection as described in section IV.C.3.a of
this preamble. EPA is establishing that it is appropriate to require
more frequent leak inspections for larger commercial refrigeration and
IPR appliances (i.e., charge sizes at or above 500 pounds), as the
larger charge size means that potential emissions from the appliance
are greater if a leak is not properly repaired.
EPA is also finalizing the use of ALD systems as a compliance
option in lieu of quarterly or annual leak inspections. Owners or
operators voluntarily using an ALD system to monitor leaks in a
refrigerant-containing appliance that are not subject to the ALD
requirements in the final rule (see section IV.D.1 of this preamble)
are not required to conduct periodic leak inspections unless an
applicable leak rate threshold has been exceeded. Once the applicable
threshold has been exceeded the owner or operator is required to
perform leak inspections on any portions of the appliance where the ALD
system is not monitoring for leaks. Owners or operators choosing to
install an ALD system, in lieu of the required leak inspections, must
meet the requirements for ALD systems (including annual ALD system
audit and calibration requirements). The Agency is also finalizing
separate requirements for the use of ALD systems for commercial
refrigeration and IPR appliances that have a charge size of 1,500
pounds or more of refrigerant that contains an HFC or a substitute for
an HFC with a GWP greater than 53. That is, the leak inspections that
are being codified at 40 CFR 84.106(g) and the requirements related to
ALD systems that are being codified at 40 CFR 84.108 are separate
provisions that apply in different circumstances. For further
information and requirements related to ALD systems in this action,
refer to section IV.D.1 of this preamble.
Comment: EPA received mostly supportive comments on the proposed
rule's leak inspection provisions. One commenter supported the option
to use ALD in lieu of quarterly or annual leak inspections Another
commenter supported the provision to require periodic manual leak
inspections for portions of the appliance that are not being monitored
by an ALD system. The commenter suggested that EPA require quarterly
inspections for portions of an appliance with a charge size of 1,500
pounds or more that are not covered by an ALD system regardless of
whether the appliance is leaking above its applicable leak rate.
Another commenter in support of the varying leak inspection
requirements in the final rule encouraged EPA to adopt routine leak
inspections regardless of whether the refrigerant-containing appliances
are found to be leaking or not. The commenter stated that routine leak
inspections are a good way to catch leaks early and prevent high-volume
leakage. One commenter requested clarification on whether EPA intended
for leak inspections to be performed ``once per year'' or ``within 365
days of the repair.'' The commenter suggested the ``within 365 days of
the repair'' interpretation would align with 40 CFR part 82, subpart F.
Response: EPA is finalizing the leak inspection requirements as
proposed. We acknowledge the comments in support of the provision. EPA
acknowledges one commenter's support for the use of ALD as a compliance
option. This decision was based on considerations of previous
utilization of ALD systems under CAA section 608 where the Agency
provided additional flexibility to facility owners to opt into ALD. The
Agency agrees that routine leak inspections are helpful in preventing
high-volume leakage from appliances and generally recommends periodic
leak inspections as a best practice, even for well-maintained
appliances. EPA did not propose and is not finalizing the repair of all
leaks or more frequent leak inspections; however, the Agency encourages
owners or operators to adopt strategies to ensure their refrigerated-
containing appliances are operating with minimal leaks. EPA clarifies
that leak inspections are not tied to the discovery of a leak, but
rather to the determination that an appliance is leaking above the
applicable threshold and occur on a set timeline based on charge size
(except for appliances where all portions of the appliance are
monitored by ALD). EPA also clarifies that quarterly or annual leak
inspections are required for portions of an appliance that are not
being monitored by an ALD system when an appliance has exceeded its
leak rate threshold. The Agency reiterates that the final rule is
requiring the repair of leaks so that the appliance is under the
applicable leak rate threshold, not the repair of all leaks. The
addition of periodic inspections not related to the final rule's leak
repair timeline would add additional burden to owner/operators and
dampen the flexibilities in the leak repair provision. The Agency may
reevaluate the frequency of leak inspections in a future notice-and-
comment rulemaking but is not finalizing additional periodic leak
inspections in this rulemaking.
The Agency disagrees with one commenter's suggestion to require
periodic inspections of portions of an appliance not covered by an ALD
system. EPA views the continuous monitoring of an appliance as serving
the function of monitoring for leaks. Thus, a requirement for
performing periodic leak inspections on those portions of the appliance
is unneeded. The final rule does require leak inspections for portions
of the appliance not monitored by ALD when the appliance is leaking
above the applicable leak rate; however, this requirement is needed to
ensure the repairs of leaks have not failed. Leak inspections serve as
a method of determining whether repairs of refrigerant-containing
appliances are adequate and if further action is needed.
The Agency clarifies that quarterly and annual leak inspections are
to be conducted within 365 days from the date of repair, demonstrated
by a successful follow-up verification test. For example, an owner or
operator of a 500-pound IPR appliance that was found to be leaking
above the applicable threshold would need to repair the leaks in the
appliance (and conduct verification tests) so that the appliance is
below the applicable threshold. The owner or operator, starting from
the completion of repair, as demonstrated by a of a successful follow-
up verification test, must then conduct quarterly leak inspections for
a year and demonstrate that any leaks from the appliance are under the
applicable threshold. Leak inspections would then cease until the next
leak event above the applicable threshold occurs. The Agency also
clarifies that the use of the term ``calendar year'' in the proposal's
preamble was intended to mean ``365 days'' in the context of the timing
of leak inspections.
Comment: One commenter objected to EPA implementing more frequent
inspections than currently existing
[[Page 82733]]
requirements under 40 CFR part 82, subpart F. Specifically, the
commenter stated EPA should not require more frequent inspections than
annually for systems between 15 and 500 pounds, and asserted that
owners and operators would experience significant burden from more
frequent inspections given the increase in appliances covered by the
15-pound threshold, the process for sniffing, and the additional work
required if a leak is found. While the comment was less clear on this
point, it also stated the view that it is not necessary to increase the
frequency of leak inspections to be more than annual for equipment with
a charge of 500 pounds or more.
Response: The Agency clarifies that the final rule's leak
inspection requirements mirror the frequency of similar requirements
under 40 CFR part 82.157(g). The Agency disagrees with the commenter's
recommendation to only require annual leak inspections for all charge
sizes. EPA is requiring quarterly inspections of appliances with charge
sizes above 500 pounds given the risk of additional leaking (e.g., that
the leak could recur) once an appliance has exceeded the leak rate
threshold and given that such large systems could release more
refrigerant than smaller systems if additional leaking occurs. With
these considerations, it is critical to ensure larger appliances are
more frequently monitored for leaks. Quarterly leak inspections for
large refrigerant-containing appliances ensure that the leak repair
requirements operate as intended to minimize releases of HFCs from
equipment, consistent with the purposes identified in subsection (h).
e. Chronically Leaking Appliances
As part of the leak repair provisions under subsection (h), EPA is
finalizing specific requirements for refrigerant-containing appliances
with a charge size of 15 pounds or more of a refrigerant that contains
an HFC or a substitute for an HFC with a GWP greater than 53 that meet
the criteria for a chronically leaking appliance. The requirements are
designed to gather information and support efforts to address such
chronic leaks, which have the effect of further minimizing emissions
from equipment. A refrigerant-containing appliance is considered a
chronically leaking appliance if it leaks 125 percent or more of its
full charge within a calendar year. The requirements for chronically
leaking appliances are similar, but not identical to, analogous
requirements under 40 CFR 82.157(j). In the final rule, EPA is
requiring reporting for covered refrigerant-containing appliances that
meet the criteria to be considered chronically leaking. Submitted
reports must describe the efforts taken to identify leaks and repair
the appliance.
To better serve the purposes of minimizing releases of regulated
substances and allow EPA to verify the information being reported more
easily, EPA is standardizing the reporting format for chronically
leaking appliances. EPA is requiring that the reports must be submitted
no later than March 1 of the following calendar year of the >=125
percent leak. EPA is requiring that these reports cover basic
identification information (i.e., owner name, facility name, facility
address where appliance is located, and appliance ID or description),
appliance type (comfort cooling, IPR, or commercial refrigeration),
refrigerant type, full charge of appliance (pounds), annual percent
refrigerant loss, dates of refrigerant addition, amounts of refrigerant
added, date of last successful follow-up verification test, explanation
of cause of refrigerant losses, repair actions taken, a signature from
an authorized company official, and whether a retrofit or retirement
plan has been developed for the appliance, and, if so, the anticipated
date of retrofit or retirement. EPA proposed and is finalizing that
these reports be submitted electronically using the Agency's applicable
reporting platform. The information in these reports would either be
contained in the records EPA is establishing that owner or operators
are required to maintain or is the type of information that is on hand
during the ordinary course of business. Because of the amount of
refrigerant emitted, chronically leaking appliances warrant special
attention. These reporting requirements for chronically leaking
equipment are designed to help ensure that owners or operators are
complying with the leak repair provisions and that they have taken
appropriate steps to identify the leaks and correct the root cause of
those leaks. These reports will allow EPA to evaluate compliance with
the regulatory requirements and to identify entities that may benefit
from compliance assistance and other outreach efforts. These reports
will also allow EPA to assess common root causes for appliances that
chronically leak, which would facilitate consideration of approaches to
mitigate these leaks and minimize the releases of HFCs from such
equipment. EPA discusses whether this information is entitled to
confidential treatment in section V.A.1 of this preamble.
Comment: Some commenters suggested that EPA should require
reporting when system leak rates exceed 110 percent per year rather
than the proposed 125 percent value. One commenter indicated that this
lower threshold would support close monitoring of systems that
experience a loss of full charge so that unrepaired faults are
repaired. One commenter suggested that EPA should set a quicker
timeline for required leak repairs for chronically leaking appliances.
Response: The Agency is finalizing the chronically leaking
appliances provision as proposed. EPA acknowledges the comments
suggesting that it should lower the chronic leak rate but finds the 125
percent threshold more appropriate, as the Agency intends to focus on
gathering information from chronically leaking appliances and to avoid
capture of refrigerant-containing appliances affected by unavoidable
losses that do not reflect a chronic issue. The 125 percent threshold
allows the Agency to focus on chronic leakers, as systems would have to
lose their full charge and then a significant quantity more to trigger
the requirements. The Agency also notes that the 125 percent threshold
aligns with the chronic leak rate established in the CAA section 608
regulations which may allow the Agency to compare or combine
information obtained under this program with that obtained under CAA
section 608 and develop a better understanding of the issues that lead
to chronic leaking across a broader group of appliances. In response to
the commenter's view that a chronic leak rate of 110 percent would
support closer monitoring of appliances, especially appliances with
large charge sizes, the Agency notes that a chronic leak rate of 110
percent may still capture appliances affected by unavoidable losses and
thus dilute focus on the target group of appliances. One commenter
requested that chronically leaking appliances be required to repair
leaks on a quicker timeline. EPA responds that the timeline for repair
of a chronically leaking appliance is the same as for any other
appliance that triggers the leak repair requirements. The Agency
further notes that some chronically leaking appliances would be subject
to the retrofit or retirement provisions in the final rule, for
example, if they continue to leak above the applicable leak rate after
having conducted the required repairs and verification tests.
Comment: Another commenter suggested an alternative to EPA's
proposal to require reporting when system leak rates exceed 125 percent
in one year. The commenter suggested the annual leak rate percentage to
require reporting should be 100 percent plus the allowed annual leak
rate percentage for
[[Page 82734]]
an equipment category plus five percent. Alternatively, the commenter
suggested that EPA could choose a lower percentage and allow an
exception for a single catastrophic leak.
Response: EPA disagrees with the commenter's suggested approach.
The commenter's suggestion would allow certain appliances (i.e., IPR)
to leak 135 percent in one year before becoming subject to the chronic
leaker provision. Thus, for some appliances, the commenter's suggested
approach would prevent EPA from obtaining information about certain
appliances that may chronically leak but not at such a high rate, and
thus might limit the Agency's understanding of the issues that may lead
to chronic leaking at the 125 percent threshold. This approach would
also differ from the approach under the CAA section 608 regulations,
which may limit the Agency's ability to compare or combine the
information obtained under this program with that obtained under CAA
section 608. For the same reason, EPA is not adopting a lower
percentage together with an exception for a single catastrophic leak
event because EPA is not persuaded that this approach would allow us to
obtain information focused on the appliances of most interest under
this requirement.
Comment: One commenter stated that if EPA lowers the leak repair
threshold to appliances with a charge size of 15 pounds, there will be
a large number of reportable, chronically leaking appliances with full
charge sizes between 15 and 49 pounds. The commenter stated that
appliances with small charge sizes tend to lose their entire charge
size before anyone realizes there is a leak, and therefore any
appliance with more than one leak in a calendar year will be reportable
to EPA. The commenter further claimed that the amount of refrigerant
added to these small appliances does not necessarily reflect the amount
of refrigerant leaked out of them, and that technicians tend to put
whole cylinders worth of refrigerant into appliances whether the
appliance requires it or not, because technicians do not like carrying
partially empty cylinders on their trucks. The commenter asserted that
this would lead to a larger number of chronically leaking appliances,
not because these appliances are in fact leaking chronically, but
rather because of the nature and size of the appliances that would be
regulated under the proposed rule.
Response: EPA views the chronic leak reports as necessary to
supporting the Agency's efforts to reduce emissions of refrigerants
from appliances. EPA does not view an increase in chronic leak
reporting for appliances below 50 pounds negatively because the Agency
wants to ascertain issues with refrigerant-containing appliances and
better understand why such appliances at all charge sizes are
chronically leaking. For example, as the commenter stated some
appliances with small charge sizes lose their full charge very quickly,
and the Agency wants to know why these appliances are leaking at such a
high rate and what owners or operators are doing to repair the leaks to
ensure that the appliances are no longer chronically leaking. The
Agency disagrees that these appliances would not be considered
chronically leaking because of their size or the way they are serviced.
EPA also notes that the commenter's description of servicing a small
appliance is concerning because the overcharging of an appliance may
lead to additional issues with leaks. It is unclear from the
commenter's description why a technician would potentially overcharge a
system simply to avoid having to carry partial cylinders. Regardless of
the commenter's example, any appliance leaking more than 125 percent of
its full charge in one year is subject to the final rule's chronic leak
reporting.
f. Retrofit and Retirement Plans
EPA is finalizing aspects of the proposed retrofit and retirement
plan provision, with modifications after consideration of the comments
and information received on the proposed rule. EPA is requiring the
development of retrofit and retirement plans for refrigerant-containing
appliances that contain HFCs and certain substitutes for HFCs, where
leaks cannot be repaired, or when an owner or operator chooses to
retrofit or retire an appliance rather than repair a leak. As further
discussed in section IV.A.2 of this preamble, EPA is not finalizing the
aspect of the proposed definition of retrofit that would require that a
retrofit be to a lower-GWP alternative than the original refrigerant;
thus, the final rule allows the retrofit of refrigerant-containing
appliances to a refrigerant that does not have a lower-GWP than the
original refrigerant. This determination is based on consideration of
the potential compliance burden of requiring retrofits to lower-GWP
refrigerants for certain appliances subject to the leak repair
provision. However, the Agency encourages owner/operators to choose
lower-GWP options when considering retrofits.
The final rule provides the details on the timing for creating a
retrofit or retirement plan for covered refrigerant-containing
appliances, and what must be contained in a retrofit or retirement
plan. EPA is requiring that a retrofit or retirement plan be created
within 30 days of certain scenarios. The Agency understands this timing
is sufficient for an owner or operator to either attempt to repair the
leak with all the necessary requirements as described in section
IV.C.3.b of this preamble or make a business decision to directly begin
the retrofit or retirement process. It is necessary to cap this timing
requirement to minimize emissions from leaks in the case where an owner
or operator fails to take any action after finding that their
applicable refrigerant-containing appliance is leaking above the
applicable leak threshold. After 30 days, the owner or operator must
begin developing a retrofit or retirement plan. The following scenarios
describe when a retrofit or retirement plan must be developed:
A refrigerant-containing appliance is leaking above the
applicable leak rate, and the owner or operator intends to retrofit or
retire the appliance rather than repair the leak;
A refrigerant-containing appliance is leaking above the
applicable leak rate, and the owner or operator fails to take action to
identify or repair the leak; or
A refrigerant-containing appliance is continuing to leak
above the applicable leak rate after an attempted leak repair and
verification testing.
EPA is requiring that the retrofit or retirement plan include
information regarding the location of the appliance, characteristics of
the appliance, a procedure for how the appliance will be converted to
accommodate a different refrigerant (if the appliance is being
retrofitted), plans for the disposition of any recovered refrigerant
and the appliance (if the appliance is being retired), and a schedule
for the completion of the appliance retrofit or retirement.
Characteristics of the appliance that will be retrofitted or retired
include the type and full charge of the refrigerant used in the
appliance, and for retrofitting, the type and full charge of the
refrigerant to which the appliance will be retrofitted. In describing
how the appliance will be retrofitted, the owner or operator must
include an itemized procedure for converting the appliance to a
different refrigerant, including changes required for compatibility.
This also includes any changes for compatibility that relate to safety
considerations to ensure the safety of technicians and consumers when
converting an appliance to a different refrigerant, which further
serves one of the purposes identified in subsection (h)(1). EPA is also
requiring that the retrofit or retirement plan must
[[Page 82735]]
include information on how any recovered refrigerant is being
dispositioned. In the case of retiring an appliance, the retirement
plan needs to include how the appliance is being disposed of. EPA is
establishing that the retrofit or retirement plan must include a
schedule for completion of the retrofit or retirement and, unless
additional time is granted, that the schedule may not exceed one year
of the plan's date (not to exceed 12 months from when the plan was
finalized). Owners or operators may request relief from the provisions
of a retrofit or retirement plan if they are able to prove that an
appliance is no longer leaking above the applicable leak rate within
180 days of creating the plan and they agree to repair all identified
leaks within one year of the plan's date. The owner or operator is
required to submit specified information to EPA, including information
regarding leaks in the appliance, descriptions of the work completed/to
be completed, and more, per 40 CFR 84.106(h)(5)(ii).
For IPR equipment, extension requests are allowed in cases where
requirements or other applicable Federal, State, local, or tribal
regulations make it impossible to complete the retrofit or retirement
within one year. In this case, owners or operators could be permitted
additional time to the extent needed to comply with the applicable
regulations. EPA is also establishing a provision that allows for
extensions to be requested for IPR equipment if the equipment is
custom-built and the supplier of the appliance or one of its components
has quoted a delivery time of more than 30 weeks. In such cases, the
appliance or component must be installed within 120 days of receipt. If
additional time is needed, the owner or operator would need to submit a
request for the additional time to EPA. Further, extensions can be
requested to complete a retrofit or retirement if the IPR equipment is
located in an area subject to radiological contamination or if shutting
down the appliance will directly lead to radiological contamination. In
this case, EPA is allowing additional time to the extent necessary to
complete the retrofit in a safe working environment. EPA did not
propose and is not finalizing extensions specifically applicable to
federally owned equipment (see, e.g., the provisions at 40 CFR
82.157(i)(3)). EPA discussed in the proposal that these circumstances
can be addressed under the other extension provisions.
As noted in the proposal, these requirements reduce emissions by
capping the amount of time an appliance can remain in operation when it
is known to be leaking above the leak rate threshold. Developing the
retrofit or retirement plan is a key process in ensuring that each step
of the plan is successfully performed such that releases of HFCs are
minimized and the reclaiming of the HFCs can be maximized. Owners or
operators may choose to retrofit or retire a leaking appliance rather
than repair a leak, or, in some situations, may be required to retrofit
or retire the appliance if successful leak repair cannot be achieved
and verified. The requirements also further serve the purposes of
minimizing releases and maximizing the reclaiming of HFCs, as proper
retrofit or retirement of a leaking appliance helps ensure that further
HFC emissions from such equipment are mitigated. Additionally, in the
process of retrofitting or retiring an appliance, the refrigerant that
was remaining in the leaking appliance must be recovered and could then
subsequently be reclaimed.
Comment: Several commenters provided recommendations for EPA's
proposal regarding retrofit and retirement plans. Two commenters
requested that retrofit and retirement plans include a provision to
retrofit an appliance with a lower-GWP refrigerant. Another commenter
suggested EPA allow for a repair plan for IPR appliances to ensure
continued operation of industrial manufacturing processes that rely on
IPR systems to continue to operate while the owner or operator pursues
repair of the appliance. Specifically, the commenter stated that it is
unfeasible to retrofit IPR appliances with evaporator temperatures
below -50 [deg]C (-58 [deg]F) because low-temperature appliances are
typically not retrofitted and have limited lower-GWP options, as
demonstrated by the 2023 Technology Transitions Rule exclusion of these
systems. The commenter stated that the design and replacement of these
systems may take several years, and a repair plan should allow the
facility to continue operations while taking the necessary steps to
address the leaks.
Response: EPA is finalizing aspects of the proposed retrofit and
retirement plan provision, with modifications after consideration of
the comments and information received on the proposed rule. In the
final rule, the Agency is not requiring that retrofit plans must
transition to lower-GWP refrigerants (see section IV.A.2 of this
preamble). The decision of what type of retrofit is appropriate when a
refrigerant-containing appliance cannot be repaired is the decision of
the owner/operator; however, EPA encourages owners or operators to
retrofit appliances to lower-GWP refrigerants. It is also up to the
discretion of the owner or operator to decide if an appliance can be
retrofitted or retired and replaced when an owner or operator cannot
repair a leak below the applicable threshold within the final rule's
provided leak repair timeframe. While some commenters suggest the
Agency should require retrofitted appliances to use lower-GWP
refrigerants, EPA has determined that requiring the use of lower-GWP
refrigerants may pose a compliance issue with the provision. For
certain appliances with limited lower-GWP alternatives, the proposal's
definition of retrofit would have limited said appliances from having
the option to retrofit. As previously discussed in this section, the
retrofit and retirement provision reduces emissions of HFCs and covered
substitutes by capping the amount of time an appliance can remain in
operation when it is known to be leaking above the applicable leak rate
threshold. Limiting certain appliance owners to one method of
compliance (i.e., retirement) would not further the purpose of this
rule to reduce emissions from equipment and may increase non-compliance
with the provision in certain instances (e.g., an owner or operator is
unable to retrofit an appliance with a lower-GWP refrigerant). EPA
notes that not all appliances are fit to be retrofitted; however, the
proposal's definition of retrofit may have been too restrictive in how
appliances could be retrofitted to comply with the leak repair
provisions in the final rule.
EPA disagrees with one commenter's request to allow for a repair
plan for appliances incapable of repairing leaks in the final rule's
specified timeframe. The continuous operation of an appliance that is
leaking above its applicable leak rate threshold is directly opposed to
reducing emissions and further serving the purposes outlined in
subsection (h)(1). The commenter's suggested repair plan would not
adequately address leaks in a timely manner in order to minimize the
release of refrigerants. and continued operation of the appliance would
necessitate the addition of more refrigerant that would also be at risk
of being emitted. The final rule provides 12 months from the approval
of a retrofit or retirement plan to retrofit or replace a system. There
is also the ability to extend the implementation of an owner or
operator's retrofit or retirement plan by one year if certain
conditions are met. The Agency finds this timing to be sufficient and
notes that the commenter did not provide sufficient evidence to prove
that these specific IPR systems
[[Page 82736]]
take an exceptionally long time to replace. In regard to the
commenter's concerns on retrofitting not typically being an option for
certain low-temperature IPR systems due to limited lower-GWP options,
EPA reiterates that changes to the definition of retrofit should permit
the retrofit of these appliances. This change should provide owners and
operators with the option to retrofit or retire an appliance, even
under the circumstances described by the commenter.
Comment: One commenter stated that 30 days is inadequate to develop
a retrofit and retirement plan for complex appliances like supermarket
systems. The commenter claimed that multiple repair attempts may be
necessary to effectuate a repair and stated that owners or operators
would not have the opportunity to conduct multiple repair attempts and
would therefore be pushed into developing a retrofit and retirement
plan. Further, the commenter asserted that there is uncertainty on the
timeframe to complete retrofit or retirement plans because the approval
of extension requests is at EPA's discretion. For these reasons, the
commenter suggested EPA extend the time to create a retrofit and
retirement plan to 90 days to allow for sufficient development of the
plan. Additionally, the commenter suggested EPA could adopt retrofit or
retirement planning if an appliance has two or more leaks during which
a certain percentage of the full charge is lost in a calendar year. The
commenter also proposed an alternative relief provision if the owner or
operator has a zero percent leak rate for the first 180 days of the
following calendar year.
The commenter also asserted that the rule exceeds EPA's authority
under the AIM Act because it would undermine key flexibilities intended
by Congress in phasing down HFCs. The commenter asserted that the AIM
Act does not confer limitless authority to EPA to impose the expansive
and unnecessarily burdensome leak detection and repair requirements set
forth in the proposed rule. The commenter also claimed that subsection
(h) does not authorize the Agency to compel retrofit of existing
refrigeration appliances with lower-GWP refrigerants or to require
system retrofit or retirement in situations where leaks cannot be
addressed under the narrow leak repair timeline in the final rule. The
commenter further stated that finalizing these requirements would
contravene the congressional intent that EPA establish a market-based
mechanism to phase down HFCs in an economically efficient way and that
existing systems be exempt from technology-forcing regulations, which
are only authorized under subsection (i).
Response: The Agency disagrees that 30 days is not enough time to
prepare a retrofit or retirement plan. Owners or operators will
typically know during the leak repair process whether they will
retrofit or retire an appliance. Some owners or operators might also
prefer to opt into a retrofit or retirement plan in lieu of attempting
a leak repair or if the appliance is continuing to leak above the
applicable leak rate after an attempted leak repair(s) and verification
testing. The Agency clarifies that the leak repair provision does not
bar owners or operators from conducting multiple repair attempts and
verification tests within the leak repair timeline described in section
IV.C.3.b of this preamble, contrary to the commenter's claim. If the
owner or operation intends to repair the leaks and a repair is
attempted, the retrofit or retirement requirement in this final rule
does not begin until the required repairs and verification tests have
been completed but the appliance has not been brought below the
applicable leak rate threshold in the allotted leak repair timeframe
(see 40 CFR 84.106(h)(1)(iii)). If the initial verification test
indicates that the repairs have not been successful, the owner or
operator may conduct as many additional repairs and initial
verification tests as needed within the applicable time period (see 40
CFR 84.106(e)(1)(iii)) and may also request an extension if the
applicable requirements under 40 CFR 84.106(f) are met; such requests
are considered approved unless EPA notifies the owners or operators
otherwise. Additionally, the required information (40 CFR 84.106(h)(2))
for retrofit or retirement plans should be readily available to the
owner or operator. EPA clarifies that retrofit or retirement plans are
not required to be submitted to the Agency; the plans must be retained
as record on the site of the refrigerant-containing appliance that can
be made readily available for inspection by EPA. Therefore, there is no
uncertainty with whether the Agency would accept a retrofit or
retirement plan, because it is not required to be reported to the
Agency unless the owner or operator is requesting relief from a
retrofit or retirement plan or the owner or operator is requesting an
extension in time to complete the retrofit or retirement of an
appliance. Further, the Agency is providing clarity in the final rule
that a retrofit or retirement plan is necessary when:
A refrigerant-containing appliance is leaking above the
applicable leak rate, and the owner or operator intends to retrofit or
retire the appliance rather than repair the leak;
A refrigerant-containing appliance is leaking above the
applicable leak rate, and the owner or operator fails to take action to
identify or repair the leak; or
A refrigerant-containing appliance is continuing to leak
above the applicable leak rate, even after attempted leak repair(s) and
verification testing.
EPA also disagrees with the commenter's suggested alternative
approaches to a retrofit or retirement plan because they would
inadequately address emissions from appliances that are leaking above
the applicable leak rate threshold compared to the requirements EPA
proposed and is finalizing in this rulemaking. Providing 90 days as the
default period to develop a retrofit or retirement plan would delay
planning for and implementation of certain measures to address such
appliances, including in situations where the owner or operator could
comply with the 30-day timeframe for the plan. Similarly, waiting for
an end-of-year calculation to determine whether an appliance requires
retrofit or retirement would lead to an indeterminant amount of
refrigerant being emitted during the year. Thus, the commenter's
proposals would not promptly address emissions from refrigerant-
containing appliances and would further delay the process for
retrofitting or retiring a refrigerant-containing appliance that
continues to leak above the applicable leak rate threshold, including
in situations where the leaks cannot be repaired; those appliances
would be expected to continue to leak above the applicable threshold
during that delay, thus leading to additional emissions from these
appliances. For these reasons, the commenter's proposals would not be a
well-suited approach compared to the provisions for retrofit and
retirement plans that EPA proposed and is finalizing to minimize
releases from equipment and maximize reclamation. Additionally, the
commenter's alternative to the relief provision is not reasonable, as
having a zero percent leak rate in the first 180 days of the following
calendar year could cause the relief provision to fall well outside the
timeframe for retrofit and retirement plans. The Agency clarifies that
retrofit and retirement plans are to be completed within 12 months of
submitting the retrofit and retirement plan, unless an extension as
outlined in 40 CFR 84.106(i) applies. The provision is not based on the
calendar year; rather, the timeframe is based on the owner or operator
not repairing leaks below the
[[Page 82737]]
applicable threshold within the allotted time for leak repair and thus
needing to develop a retrofit or retirement plan. Specifically, the
timeframe for completion of a retrofit or retirement plan begins when
an owner or operator submits their retrofit or retirement plan to the
Agency. Owners or operators can apply for relief from their retrofit or
retirement plan within 180 days of the plan's date if, among other
things, they can establish the appliance is repaired and no longer
leaking above the applicable leak rate. EPA also clarifies that the
Agency is not requiring appliances to have a zero percent leak rate,
because this may be unreasonable for certain appliances at certain
charge sizes. Owners or operators must simply ensure that an appliance
is leaking below an appliance's applicable leak rate threshold and meet
the other requirements listed in 40 CFR 84.106(h)(5)(ii) to apply for
relief from their retrofit or retirement plans.
With respect to the comments on EPA's legal authority, EPA notes
that it is not further addressing the comments on whether it has legal
authority to require that retrofits use a lower-GWP refrigerant because
it is not finalizing such a requirement in this action. EPA disagrees
with the comments that subsection (h) does not authorize the Agency to
require system retrofit or retirement in situations where leaks cannot
be addressed under the narrow leak repair timeline, and with those that
claim the requirement contravenes congressional intent. EPA interprets
its regulatory authority under subsection (h)(1) to include authority
to establish requirements related to the prevention and repair of leaks
for equipment containing HFCs or substitutes for HFCs, as such
requirements control practices, processes, and activities regarding the
servicing, repair, disposal, or installation of equipment. These
requirements also implement the purposes identified in subsection (h)
of minimizing releases of HFCs from equipment and maximizing
reclamation. The leak detection and repair requirements finalized in
this rule, including the retrofit or retirement requirements, fit
squarely within this grant of authority. The retrofit or retirement
requirements apply when the leak has not been repaired consistent with
the regulatory requirements and are designed to ensure that additional
action is taken to address such leaks and limit the ongoing release of
the refrigerant to the environment, thus serving the purposes
identified in subsection (h) of maximizing reclamation and minimizing
release of HFCs from equipment. The types of activities taken as part
of retrofit or retirement--such as modifications to the appliance
needed to convert it to a new refrigerant, switching the refrigerant
from the old to the new refrigerant, and repairing all identified leaks
for a retrofit, or actions to retire and dispose of the appliance in
the case of a retirement--are typical examples of the kinds activities
related to the servicing, repair, installation, or disposal of
equipment that Congress authorized EPA to control through regulations
under subsection (h).
EPA also disagrees with the commenter's characterization of
Congressional intent, as that characterization ignores the role of
subsection (h) in the overall statutory scheme. The AIM Act contains a
variety of provisions that are targeted at addressing different aspects
of regulated substances. This rule does not address the Act's phasedown
provisions, nor does it address the technology transition provisions;
thus, comments directed at those provisions are beyond the scope of
this rulemaking and require no further response. However, to the extent
that the comment suggests that these aspects of the AIM Act preclude
EPA from issuing regulations that subsection (h) directs it to issue,
EPA disagrees. Rather, EPA views the Act as providing separate and
distinct regulatory authorities, which can be implemented in ways that
reinforce and complement one another. EPA also disagrees with the
commenter's implication that technology-forcing regulations are only
authorized under subsection (i) of the Act. The plain text of the Act
includes no such limitation. Interpreting the Act to include one would
limit EPA's ability to fulfill the direction and achieve the purposes
stated in subsection (h). While EPA acknowledges that subsection
(i)(7)(B), entitled ``Applicability of Rules,'' includes the limitation
that a ``rule promulgated under this subsection shall not apply . . .
except for a retrofit application, equipment in existence in a sector
or subsector before December 27, 2020,'' that restriction expressly
applies only to rules issued under subsection (i); it does not apply to
rules promulgated under subsection (h), such as this rule. In fact,
subsection (h) includes its own provision addressing inapplicability
for regulations under (h) at (subsection (h)(4) entitled
``Inapplicability''). That provision does not mention any limitation on
application of the rules to existing equipment. If Congress had
intended for such a limitation to apply under subsection (h), it is
reasonable to expect that legislators would have explicitly included it
in this provision, as they did in subsection (i)(7)(B).
Regarding the commenter's assertion that the AIM Act does not
confer limitless authority to EPA to impose the proposed ``expansive''
and ``unnecessarily burdensome'' leak detection and repair
requirements, the Agency does not view the AIM Act as conferring
limitless authority. Instead, EPA concludes that in this rule the
requirements that are being finalized are well within the scope of
authority provided by the AIM Act and are consistent with subsection
(h), for the reasons described previously in this response and
elsewhere in this final rule. EPA disagrees with the characterization
of this rule as ``unnecessarily burdensome'' for the reasons described
in section IV.C.2 of this preamble. Further, the Agency has explained
why these requirements are appropriate for serving the purposes under
subsection (h) as described throughout this section of the preamble.
Comment: One commenter recommended that EPA align the requirements
for retrofit or retirement plans with the CAA section 608 regulations
to reduce uncertainty and compliance costs. The commenter also
suggested that EPA consider merging the entire leak detection and
repair programs under CAA section 608 and subsection (h) of the AIM Act
into one regulation to help streamline the respective requirements and
avoid confusion in compliance on the part of owners and operators.
Response: EPA clarifies that this specific provision and many other
leak repair provisions in the final rule largely aligned with
regulations under CAA section 608. When creating this final rule, EPA
looked to align the provisions with the CAA while also building on the
CAA regulations where appropriate (e.g., changing the charge size
threshold to 15 pounds for leak repair). Additionally, EPA notes that
the leak repair rules under the CAA and this final rule were
promulgated under two separate statutory authorities, and that the
Agency did not propose to reopen the requirements under the CAA as part
of this rulemaking. Thus, the Agency is not merging the requirements in
the way the commenter suggest in this action. However, as previously
stated we have evaluated how to make the leak repair provisions under
the CAA and AIM Act streamlined and understandable. EPA disagrees that
this final rule will cause confusion for owners and operators. As
stated previously, this final rule is largely aligned with the leak
repair requirements under CAA section 608.
[[Page 82738]]
g. Recordkeeping and Reporting
EPA is requiring recordkeeping requirements for refrigerant-
containing appliances with a charge size of 15 pounds or more of a
refrigerant containing an HFC or a substitute for an HFC with a GWP
above 53 under subsection (h) that are similar to those at 40 CFR
82.157(l). Where EPA is establishing requirements for recordkeeping,
the record must be maintained for three years in either paper or
electronic format. An owner or operator may contract out the record
generation responsibilities but retains ultimate liability for
compliance and must be able to access these records electronically or
in hard copy from the facility where the appliance is located. All
recordkeeping requirements can be found in 40 CFR 84.106(l). These
records are the primary means for the facility to demonstrate
compliance with the leak repair requirements, and EPA will review them
when evaluating compliance. EPA will access these records in various
ways, including, but not limited to, on-site review of the records or
requesting them via an information request. In general, EPA is
establishing the following recordkeeping requirements for owners and
operators under subsection (h):
Maintain records documenting the full charge of
appliances;
Maintain records, such as invoices or other documentation
showing when refrigerant is added or removed from an appliance, when a
leak inspection is performed, when a verification test is conducted,
and when service or maintenance is performed;
Maintain retrofit and/or retirement plans;
Maintain retrofit and/or extension requests submitted to
EPA;
If a system is mothballed to suspend a deadline, maintain
records documenting when the system was mothballed and when it was
brought back on-line (i.e., when refrigerant was added back into the
appliance or isolated component of the appliance);
Maintain records of purged and destroyed refrigerant if
excluding such refrigerant from the leak rate;
Maintain records to demonstrate a seasonal variance; and
Maintain copies of any reports submitted to EPA under the
reporting requirements in this action.
EPA is also requiring reporting and recordkeeping for refrigerant-
containing appliances with a charge size of 15 pounds or more of a
refrigerant containing an HFC or a substitute for an HFC with a GWP
above 53 under subsection (h) that are similar to those at 40 CFR
82.157(m). The reporting requirements include notifications to EPA that
include specified information when:
The owner or operator is seeking an extension to complete
repairs;
The owner or operator is seeking an extension to complete
a retrofit or retirement plan;
The owner or operator is seeking relief from the
obligation to retrofit or retire an appliance;
An appliance leaks 125 percent or more of the full charge
in a calendar year;
The owner or operator is excluding purged refrigerants
that are destroyed from annual leak rate calculations for the first
time.
Additional detail on these recordkeeping requirements is available
at 40 CFR 84.106(l). The recordkeeping and reporting requirements in
this action for ALD systems are described in section IV.D.2 of this
preamble.
As discussed in the proposal, the recordkeeping and reporting
requirements support compliance with the leak repair provisions under
the final rule for applicable refrigerant-containing appliances that
contain HFCs or certain substitutes for HFCs as a refrigerant. For
example, the requirements will control recordkeeping and reporting
practices, processes, or activities for servicing and repair that
involves HFCs or a substitute for an HFC. As discussed in section II.B
of this preamble, EPA's authority to require recordkeeping and
reporting under the AIM Act is also supported by section 114 of the
CAA, which applies to the AIM Act and rules promulgated under it as
provided in subsection (k)(1)(C) of the AIM Act. The recordkeeping and
requirements related to the leak repair requirements under this
rulemaking are applicable to the full range of appliances that are
subject to the leak repair provisions, including those containing at
least 15 pounds of refrigerant with limited exemptions, as described in
section IV.C.2.b of this preamble for certain appliances. The
recordkeeping and reporting requirements provide critical information
about whether required actions were taken and are part of the suite of
compliance tools included in this rule. Compliance with the overall
leak repair requirements is intended to minimize the release of
refrigerants, and the Agency considers these recordkeeping and
reporting requirements necessary to readily assess compliance. Records
that demonstrate noncompliance or are incomplete may be used for
enforcement purposes. The requirements are informed in part by EPA's
consideration of its experience implementing similar regulations under
CAA section 608 at 40 CFR 82.157 and the recordkeeping and reporting
requirements that have been used to ensure compliance with those
provisions.
Furthermore, EPA notes that there are existing recordkeeping
requirements at 40 CFR 82.156(a)(3) for technicians evacuating
refrigerant from appliances with a full charge of more than 5 and less
than 50 pounds of refrigerant for purposes of disposal of that
appliance. These records are used to assess technicians' compliance
with the disposal requirements for appliances between 5 to 50 pounds
under 40 CFR part 82, subpart F and are not related to the owner/
operator's compliance with the leak repair requirements. Additionally,
EPA notes that the bulk of the appliances covered by the recordkeeping
requirements at 40 CFR 82.156(a)(3) are residential air conditioning
appliances, which are exempt from the leak repair provisions in this
action. EPA did not reopen any of the provisions in 40 CFR part 82
through this notice-and-comment rulemaking, and thus the Agency did not
propose any changes to the referenced recordkeeping requirements. The
Agency does not view these recordkeeping requirements as being in
conflict with the leak repair requirements in this final rule, nor does
the Agency view them as redundant.
Comment: A commenter requested clarification on the effective date
of leak repair requirements as it relates to recordkeeping, considering
the leak rate calculation methodologies would require existing records
in order to determine the leak rate. The commenter stated that some
facilities with appliances with a charge size greater than 50 pounds
may not have records because of the lack of existing leak repair
requirements. The commenter requests clarity on what owners or
operators should do if records are unavailable to determine the leak
rate and determine if repairs are required.
Response: EPA acknowledges the commenter's concerns about
accurately calculating the leak rate of appliances without previously
available records. As discussed in section IV.C.3.a of this preamble,
because no records are required for addition of refrigerants to an
appliance prior to January 1, 2026, owners or operators may calculate
leak rates for appliances containing an HFC or HFC substitute with a
GWP greater than 53 as though there were no additions prior to that
date. For example, if an owner or operator is using the annualizing
method for the
[[Page 82739]]
first addition of refrigerant in calendar year 2026, the second term
would be 365/365 (or ``1''). For subsequent additions the second term
would be 365 divided by the shorter of the number of days since
refrigerant was last added or 365. Alternatively, if an owner or
operator is using the rolling average method for the first addition of
refrigerant in calendar year 2026, the numerator would be the pounds of
refrigerant added since the shorter of January 1, 2026, or the last
successful follow-up verification test, if one was conducted in 2026.
For subsequent additions the numerator is the pounds of refrigerant
added since the shorter of 365 days or the last successful follow-up
verification test.
Comment: One commenter requested the Agency clearly state in the
regulatory text how and where required information is submitted
electronically so the regulated community knows where and how to
transmit the required information.
Response: EPA is creating a web-based platform for owners or
operators to submit requests for extensions, chronic leak reports, and
other reportable materials to the Agency. The Agency intends to provide
additional information and guidance on reporting at https://www.epa.gov/climate-hfcs-reduction/managing-use-and-reuse-hfcs-and-substitutes.
Comment: One commenter suggested that recordkeeping and reporting
requirements should not apply to residences, families, and landlords
unless a threshold of several owned units is surpassed.
Response: As previously discussed in section IV.C.2 of this
preamble, EPA is exempting appliances in the residential and light
commercial air conditioning and heat pump subsector from the leak
repair provisions of the final rule and those appliances are not
subject to recordkeeping and reporting. EPA did not propose and is not
finalizing any recordkeeping and reporting requirements for homeowners
or landlords using air conditioning appliances in this subsector.
D. How is EPA establishing requirements for the installation of
automatic leak detection systems?
EPA is finalizing aspects of the proposed ALD requirements, with
modifications after consideration of the comments and information
received on the proposed rule. EPA is finalizing that ALD systems must
be installed and used for new and certain existing refrigerant-
containing appliances in the IPR and commercial refrigeration
subsectors with a charge size of 1,500 pounds or more. This provision
applies to those refrigerant-containing appliances in the IPR or
commercial refrigeration subsector that contain an HFC or a substitute
for an HFC with a GWP greater than 53. In the proposal, new
refrigerant-containing appliances installed after 60 days of the
publication of the final rule in the Federal Register were required to
install and use an ALD within 30 days of appliance installation. EPA
proposed that existing refrigerant-containing appliances installed
before 60 days after the date of publication of the final rule in the
Federal Register were required to install and use an ALD system by one
year after the date of publication of the final rule in the Federal
Register. EPA is finalizing that beginning January 1, 2026, new
refrigerant-containing appliances with a full charge of 1,500-pounds or
greater in the IPR and commercial refrigeration subsectors are required
to install an ALD system as a part of the overall appliance
installation, either during the installation of the new appliance or
within 30 days from when the new appliance is installed. Generally
depending on the type of ALD system, it may be more practicable to
install an ALD system during the appliance installation. The compliance
date for the installation and use of ALD systems is over one year later
than proposed to provide additional time for new appliance owners to
procure and install ALD systems because additional time may be needed
to secure a contractor or technician to install the ALD system, or
there may be unforeseen delays in acquiring an ALD system. For existing
IPR and commercial refrigeration appliances installed on or after
January 1, 2017, and before January 1, 2026, EPA is requiring that ALD
systems be installed and used by January 1, 2027. The change to the
compliance date and applicability for existing IPR and commercial
refrigeration appliances with a full charge of 1,500 pounds or greater
was informed by commenters and further considerations by EPA to ease
potential supply issues and facilitate compliance with this provision.
For these appliances, the compliance date has been extended by one year
(i.e., to January 1, 2027) to allow additional time for existing
appliances to comply with the provision, and the applicability of
appliances affected by this provision has been altered to ensure that a
proper supply of ALD systems is available to owners and operators.
Further discussion of this change can be found later in this section.
As discussed in the proposal, ALD systems serve the purposes
described in subsection (h)(1) to control any practice, process, or
activity regarding servicing, repair, or installation of such
appliances, that involves a regulated substance or a substitute for a
regulated substance. When an ALD system detects a leak in a
refrigerant-containing appliance covered by this rule, an owner or
operator of the appliance is required to either perform practices,
processes, and/or activities to determine whether service or repair of
the appliance is necessary (i.e., calculating a leak rate and assessing
it compared to the applicable leak rate for the type of appliance) or,
alternatively, preemptively repair the leak (i.e., before adding
refrigerant and calculating the leak rate). The Agency is explicitly
encouraging preemptive repair of a leak as a compliance option to avoid
the need to add refrigerant to an appliance with a known leak (which
would otherwise generally be necessary to calculate the leak rate and
determine if the applicable leak rate is exceeded). If the preemptive
repair is being used as a compliance option, it must occur within 30
days (or 120 days where an industrial process shutdown is necessary) of
the alert. Taken together, these requirements are expected to
facilitate prompt repair of leaks, which further helps minimize
releases of regulated substances from equipment and maximize the
amounts of regulated substances remaining in the equipment for eventual
recovery and reclamation.
In the case of preemptive repair, this compliance option provides
the opportunity to repair an appliance that is known to be leaking
prior to the addition of refrigerant. When refrigerant is added to an
appliance that underwent preemptive repair, a leak rate calculation is
still required after the addition of refrigerant. Owners or operators
choosing to preemptively repair identified leaks per 40 CFR
84.108(h)(2) are not required to conduct an initial or follow-up
verification test at the time of leak repair, unless the calculated
leak rate performed after refrigerant is added is above the applicable
leak rate. If the refrigerant-containing appliance is found to be
leaking above the applicable leak rate threshold after preemptive
repair the full suite of leak repair requirements (e.g., initial and
follow-up verification tests) will still apply. EPA clarifies that
owners or operators using the rolling average method must continue to
use the date of the last successful follow-up verification test or 365
days, whichever is shorter, to calculate the leak rate. If
[[Page 82740]]
multiple preemptive repairs (and associated refrigerant additions) are
conducted within a time frame since the shorter of the last successful
follow-up verification test or 365 days, the cumulative pounds of
refrigerant added since the last successful follow-up verification
test, or 365 days should be used to calculate the leak rate. For
example, over a period of six months an owner or operator's ALD alerts
them of a leak three times. The owner or operator, each time the ALD
alarm alerts them, preemptively repairs a refrigerant-containing
appliance and calculates the leak rate using the rolling average
method. For the first refrigerant addition, the owner or operator uses
the number of pounds added since the shorter of 365 days or the last
successful follow-up verification test. For subsequent leaks detected
by an ALD system, the owner or operator would use the cumulative amount
of refrigerant added since the shorter of 365 days or the last
successful follow-up verification test. If the cumulative amount of
refrigerant added causes the refrigerant-containing appliance to exceed
its applicable leak rate, then the owner or operator must follow
through with the full suite of leak repair requirements.
The preemptive repair actions can be considered in determining
whether the suite of leak repair requirements triggered by the
exceedance of the applicable leak threshold have been satisfied, but
the owner or operator of the appliance would still need to ensure that
the leaks had been repaired according to the definition of repair and
that the other requirements in 40 CFR 84.106 (e.g., initial and follow-
up verification tests, leak inspections (where applicable) and related
recordkeeping) had been met. The timing of the leak repair requirements
is the same as described in section IV.C.3.b of this preamble. If an
owner or operator finds that the leak rate for a refrigerant-containing
appliance is above the applicable leak rate threshold, the owner or
operator must conduct an initial verification test in the 30-day
timeframe for preemptive repair. A follow-up verification test must be
conducted within 10 days of the successful initial verification tests,
and leak inspections for portions of the refrigerant-containing
appliance not monitored by an ALD system would begin after the date of
a successful follow-up verification test.
As previously discussed in section IV.C.3.d of this preamble, EPA
considers the leak inspections that are being codified at 40 CFR
84.106(g) and the requirements related to ALD systems that are being
codified at 40 CFR 84.108 to be separate. However, in certain
circumstances the use of ALD systems that meet certain requirements
under the 40 CFR 84.108 is a compliance option that may be used in lieu
of quarterly or annual leak inspections. Further, the regulations under
CAA section 608 include provisions where an owner or operator of a
covered appliance with ODS refrigerants may choose to use an ALD system
in place of performing regular leak inspections as part of the leak
repair provisions at 40 CFR 82.157. Nothing in this final rule changes
the requirements related to ALD systems under CAA section 608 for
equipment containing only ODS refrigerants. In other words, an owner or
operator of an appliance that uses ODS-containing refrigerants will
continue to be required to meet any and all requirements under 40 CFR
82.157 for that appliance, including if they choose to use an ALD
system to comply with requirements under 40 CFR 82.157.
EPA understands that for reasons other than this rule, ALD systems
are already in use to a certain extent. For example, some owners or
operators may already use ALD systems to serve as an early warning
system for detecting and repairing leaks. Some owners or operators may
choose to install ALD systems from an economic perspective as early
detection and repair of leaks can avoid costs of replacing the released
refrigerant and operating equipment at suboptimal levels and/or the
loss of perishable products due to failure to maintain required
cooling. Further, the Agency is aware of safety standards that apply
when using certain HFCs and/or substitutes for HFCs that have been
classified as lower flammability. Lower flammability refrigerants in
this context are those that are classified by ASHRAE as A2L
refrigerants.\76\ UL Standard 60335-2-40 currently requires the use of
leak detectors for electrical heat pumps, air conditioners and
dehumidifiers containing A2L refrigerants.\77\ \78\ Under that
standard, leak detectors that detect pressure loss are required in
cases where the prescribed A2L charge limit is exceeded (which is
typically around four pounds for permanently installed applications).
That standard also prescribes that refrigerant leak detectors be
installed at the factory for applicable appliances and have factory-
established set points for detection to avoid potential buildup of
concentrations of flammable refrigerants.
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\76\ ASHRAE Standard 34-2022 assigns a safety group
classification for each refrigerant which consists of two
alphanumeric characters (e.g., A2 or B1). The capital letter
indicates the toxicity class (``A'' for lower toxicity) and the
numeral denotes the flammability. ASHRAE recognizes three
classifications and one subclass for refrigerant flammability. The
three main flammability classifications are Class 1, for
refrigerants that do not propagate a flame when tested as per the
ASHRAE 34 standard, ``Designation and Safety Classification of
Refrigerants;'' Class 2, for refrigerants of lower flammability; and
Class 3, for highly flammable refrigerants, such as the hydrocarbon
refrigerants. ASHRAE recently updated the safety classification
matrix to include a new flammability subclass 2L, for flammability
Class 2 refrigerants that burn very slowly.
\77\ UL. 2019. ``Understanding UL 60335-2-40 Refrigerant
Detector Requirements.'' https://www.ul.com/insights/updated-requirements-refrigerant-detection-systems.
\78\ UL 60335-2-40, 2019. Household And Similar Electrical
Appliances--Safety--Part 2-40: Particular Requirements for
Electrical Heat Pumps, Air-Conditioners and Dehumidifiers. Third
Edition. November 1, 2019.
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Comment: EPA received overall support for the proposed ALD
provision. One commenter stated that they strongly support any measures
that will strengthen leak management practices. The commenter indicated
that the greater stringency under the proposal, as compared to a
similar leak repair provision in CAA section 608 and the requirements
for ALD systems, will help detect leaks early and thereby mitigate
environmental and financials risks associated with high-volume
refrigerant leakage. The commenter also stated the ALD requirements
will strengthen the State refrigerant management program requirements
in California and Washington. Another commenter similarly expressed
support for the provision stating that ALD systems leverage technology
to mitigate leakage and strengthen refrigerant management programs. Two
commenters supported EPA's efforts to implement leak detection and
repair requirements through the AIM Act. One of the commenters shared
that their refrigerant managers have found ALD systems useful for
reducing fugitive refrigerant emissions and maximizing equipment
performance and energy efficiency. Another commenter in support
emphasized their shared goal to reduce leakage of HFCs and measurably
reduce GHG emissions in the United States. Two commenters expressed
support for the use of ALD systems for commercial refrigeration and IPR
appliances with a charge size of 1,500 pounds or more of HFC-containing
appliances. One of the commenters asked that EPA examine any comments
from manufacturers of equipment and ALD systems to ensure compliance
timelines can be met without delaying the installation of new equipment
or
[[Page 82741]]
implementation of ALD systems on existing equipment.
Several commenters in support of the ALD requirements discussed how
the provision would provide additional benefits and/or support existing
efforts for refrigerant management. One commenter stated that ALD
systems align with their commitment to environmental stewardship while
maintaining the highest standards of service quality. Another commenter
in support of the leak repair and ALD requirements stated the
provisions would minimize releases from equipment and significantly
reduce costs for businesses. The commenter provided information that
estimated each supermarket in the United States leaks roughly 875
pounds of HFCs per year at a rate of two parts per million (ppm) to 182
ppm, and all supermarkets in the United States leak emissions
equivalent to burning 49 billion pounds of coal. As discussed in
section IV.C.3, several commenters supported the ALD provisions as the
provisions further apply a LRM approach to HFC management.
Conversely, one commenter stated the proposed ALD requirements are
not consistent with part 82 ODS requirements, where ALD systems are a
compliance option, and should be amended to align with those
requirements. As further discussed in section IV.C.3.f of this
preamble, another commenter asserted that the AIM Act does not confer
limitless authority to EPA to impose the expansive and unnecessarily
burdensome leak detection and repair requirements set forth in the
proposed rule.
Response: EPA is finalizing required use of ALD systems for a
specific set of IPR and commercial refrigeration appliances with a
charge size of 1,500 pounds or more. The Agency acknowledges comments
in support of the ALD provision and agrees with commenters on the
environmental benefits, reduction of financial risks, and fugitive
emissions associated with ALD requirements. EPA also agrees with
commenters that the ALD provision will strengthen refrigerant
management programs in States that require ALD. EPA acknowledges the
analysis of the amount of emissions avoided by the ALD provision. The
Agency also agrees with one commenter's statement that this provision
expands on requirements that previously applied to HFCs under CAA
section 608 and will provide additional benefits from reconsidering the
requirements under the AIM Act.\79\ EPA acknowledges these comments and
other comments in support of the provision.
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\79\ The commenter also indicated that the requirements that
applied to certain substitute refrigerants under CAA section 608
were ``vacated.'' While actions under CAA section 608 are outside
the scope of this rulemaking, the Agency notes for purposes of
clarity and to avoid confusion that as discussed in greater detail
in section III.C.1., EPA issued a rule in 2020 under section 608
which rescinded the 2016 extension of the leak repair requirements
to appliances using HFCs and other non-exempt substitute
refrigerants (85 FR 14150, March 11, 2020). Thus, it was a
rulemaking by EPA that resulted in the leak repair requirements in
40 CFR 82.157 no longer applying to appliances that use substitute
refrigerants. While petitions for judicial review were filed on the
2020 rule, the case is currently in abeyance and the court has not
issued any final decision nor has it vacated those requirements.
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The Agency acknowledges comments in support of the use of ALD in
IPR and commercial refrigeration with a full charge of 1,500 pounds or
greater. The applicability and charge size threshold of the provisions
are discussed in further depth later in section IV.D.1. The Agency did
review comments from ALD system manufacturers, per the commenter's
suggestion, and has responded accordingly throughout section IV.D.
The Agency disagrees with one commenter's suggestion that the
Agency realign the ALD provision with 40 CFR part 82, subpart F and
leave the utilization of ALD systems solely as a compliance option. The
rules in 40 CFR part 82, subpart F are based on CAA section 608 which
is based on a different statutory provision. While EPA concluded that
it is appropriate to align many aspects of the leak repair requirements
in this rule with those under CAA section 608, for certain
requirements, such as this one, the conclusion to finalize a provision
that is different from the requirement under CAA section 608 is also
appropriate. In the time since EPA finalized that requirement in 2016,
ALD systems of many types, direct and indirect, are now more widely
available and the Agency has developed a better understanding of how
these various kinds of ALD systems could be used to achieve the
purposes of subsection (h). As discussed previously in this section,
the Agency is aware of widespread use of ALD systems used to comply
with safety standards. The same or similar ALD systems can be utilized
for the purposes of leak detection to support the ALD requirements.
Moreover, ALD systems have been used by those seeking to monitor their
systems for various reasons besides compliance with regulations ranging
from meeting environmental stewardship goals to reducing costs of
refrigerant by detecting and subsequently repairing leaks. EPA views
leaky refrigerant-containing appliances with high charges as appliances
where the utilization of ALD systems is particularly valuable, given
that it may take some time for an owner or operator to become aware of
a leak through other methods and given the amount of refrigerant that
could leak from the system while a leak is undetected. The requirements
in the final rule for commercial refrigeration and IPR appliances with
a charge size of 1,500 pounds or greater to install and use ALD systems
will help owners or operators identify leaks in such equipment earlier
so that they can take corrective action to limit the release of
refrigerant from the leak. Detection of leaks in equipment is a
critical step in minimizing the release of HFCs from that equipment.
Thus, requiring use of ALD in systems with charges of this magnitude is
one way that the regulations work to achieve the purpose identified in
subsection (h)(1) of minimizing releases of HFCs from equipment.
Because the HFCs that remain in the equipment can later be recovered
and reclaimed, this requirement also helps serve the purpose of
maximizing reclamation, also identified in subsection (h)(1).
EPA addresses the comments on legal authority in section IV.C.3.f
of this preamble.
Comment: Several commenters opposed the compliance dates for new
appliances. One commenter expressed concerns that the 30-day timeline
for installation would be unfeasible due to current inventories, supply
chain constraints, and labor shortages. The commenter suggested
allowing at least a one-year compliance period for systems installed
within one year of publication of the final rule. Another commenter
echoed the need for an additional year after publication of the final
rule and stated that installation projects are often planned months to
years in advance. Both commenters stated that additional time would
allow for the preparation of operating procedures and training of
personnel to operate and maintain equipment. One commenter stated the
proposal's compliance dates were unclear and inadequate given the
anticipated demand created by the rule's provisions.
Response: EPA is finalizing a compliance date of January 1, 2026,
for new IPR and commercial refrigeration systems with a full charge of
1,500 pounds or greater. In the proposal, the compliance date for new
appliances was tied to the final rule's publication in the
[[Page 82742]]
Federal Register and would have required the installation of an ALD
system within 30 days of appliance installation. In the final rule the
requirement for newly installed equipment will begin January 1, 2026,
though EPA is retaining the requirement to install and use ALD systems
within 30 days of appliance installation. The additional year should
address some commenters' concerns with procurement, planning, and
training of personnel. The new compliance date also allows owners or
operators who may be in the process of planning an appliance
installation project additional time to comply with the ALD
requirements. Furthermore, the compliance dates for both new and
existing systems are more clearly defined which provides owners or
operators additional clarity for when they will need to install and use
an ALD system.
The Agency is finalizing that an ALD system must be installed and
used by January 1, 2027, if the existing refrigerant-containing
appliance was installed on or after January 1, 2017, and before January
1, 2026. EPA narrowed the refrigerant-containing appliances subject to
this provision to those that were installed approximately 10 years ago
or less because appliances in the two categories covered in the final
rule (i.e., commercial refrigeration and IPR), have very long useful
lifetimes. The final rule's applicability cutoff date for existing
systems is set to January 1, 2017, because the Agency considers
existing appliances installed within that timeframe to still have a
majority of their useful life to operate. For example, IPR systems
generally have a useful life of 20-25 years. Thus, an IPR system
installed on January 1, 2017, might have an additional 10-15 years of
life before the appliance would need to be replaced. Commercial
refrigeration appliances at charge sizes at 1,500 pounds or greater
have a similar useful life of about 18 years. EPA recognizes that the
provision in the final rule does not have the same breadth of emissions
benefits as the provision in the proposed rule, but the Agency
estimates that a significant portion of existing appliances are covered
by the final rule's provisions. While the Agency proposed to include
all existing appliances in these categories, in this final rule, the
Agency has determined to include a subset of appliances (i.e., those
installed since January 1, 2017) rather than all appliances and to
include two of three categories of refrigerant-containing appliances
(i.e., IPR and commercial refrigeration) thus narrowing the number of
affected appliances. Limiting the number of affected refrigerant-
containing appliances should also ease concerns pertaining to the
supply of ALD systems as only approximately 44 percent of existing
appliances would be subject to the ALD installation and use
requirements compared to the proposal.
Comment: Various commenters shared concerns about the compliance
date for existing IPR and commercial refrigeration appliances and the
supply of ALD systems. One commenter claimed that the complexity of
integrating new ALD systems into an existing facility's processes
necessitates more than a year to develop and construct an ALD project.
The commenter stated that the compliance date would result in a single,
peak-demand year; thus, EPA should allow for a three-year compliance
window for existing appliances. The commenter also claimed that EPA has
no statutory obligation to require compliance within a shorter time
period. Another commenter echoed similar concerns on technician and
supply chain shortages regarding supermarket systems, stating that it
would be impractical for industry to comply on time under the proposal
and that compliance costs will likely be significantly higher than what
EPA projects due to demand for ALD systems. The commenter stated that
supermarket refrigeration systems can have 30 to 50 cases, each with an
evaporator, and a large number of components which would require
sensors adding to the amount of time to implement an ALD system. The
commenter also stated that ``off-the-shelf'' ALD systems may require
significant modification and thus require more time to implement. For
these reasons the commenter requested the compliance date for new
systems be no earlier than January 1, 2029. Another commenter suggested
the compliance date for existing systems be at least two years after
publication to ensure owners and operators have the needed lead time to
design, procure, install, and validate ALD systems for their
operations. The commenter stated that EPA may be underestimating demand
in its ALD analysis and that increased demand could drive up the costs
of ALD systems and slow down delivery and installation time if existing
ALD manufacturers do not have the capacity to meet demand. Another
commenter recommended EPA consider an exemption for commercial system
operators from the proposed ALD requirements if they can prove they
would transition to an ultra-low-GWP refrigerant before January 1,
2027.
Response: The Agency is finalizing a compliance timeline for
existing systems later than proposed with the caveat that not all
existing IPR and commercial refrigeration appliances are subject to the
final rule's ALD provisions. The final rule exempts any appliance
installed before January 1, 2017, from being required to install an ALD
system. EPA estimates that approximately 56 percent of total existing
appliances would be excluded from the ALD provision as proposed.
Additionally, EPA estimates that around 25,000 existing refrigerant-
containing appliances would be subject to the ALD requirements in the
final rule, which is significantly lower than the number of
refrigerant-containing appliances subject to the ALD provision in the
proposal. Owners or operators with existing refrigerant-containing
appliances subject to this provision will have over two years to
install an ALD system. This change will reduce the immediate demand of
ALD systems and provide additional lead time for owners or operators to
procure, design, and install ALD systems for their operations. The
Agency notes that commenters did not provide sufficient evidence on how
the state of the ALD or technician market would affect an owner or
operator's ability to install an ALD system. However, as stated
previously, the changes to the compliance date and applicability should
ease concerns related to market shortages. Furthermore, the additional
time for existing refrigerant-containing appliances subject to the ALD
requirements will reduce costs associated with the demand for ALD
systems, as one commenter stated. Further discussion on the costs and
benefits of the ALD provision can be found in section IV.B.2.
Regarding one commenter's statements on the implementation of ALD
systems in supermarkets, the Agency disagrees that additional time
beyond January 1, 2027, will be necessary. EPA understands that
supermarket systems may be custom built or have additional
complexities; however existing ALD systems can be applied to such
systems even if they are considered to be ``off-the-shelf'' as the
commenter describes. The commenter also did not provide specific
information on how existing ALD systems would be inadequate in
providing leak monitoring for their supermarket systems or why existing
ALD systems would require significant modifications in order to be
implemented. The Agency also disagrees that additional time would be
[[Page 82743]]
needed because multiple cases and components would need to have
sensors, as the Agency is not prescribing the type of ALD system used
by an owner or operator. To clarify, EPA is requiring an owner or
operator to use either a direct or indirect ALD system to comply with
the ALD requirements in this final rule. It is up to the owner or
operator's discretion to decide which type of ALD system, that meets
the standards described in 40 CFR 84.108, best suits their refrigerant-
containing appliance. Although the Agency disagrees that either type of
ALD system will be difficult to install, if the commenter finds direct
ALD systems as too onerous to implement, they have the option to
install an indirect ALD system to comply with the provision.
Additionally, CARB's refrigerant management program has required the
use of ALD for refrigeration systems above 2,000 pounds since 2011.
Certain supermarket systems are captured by this regulation and have
been required to use ALD for over a decade. As previously stated, EPA
views the implementation of ALD for certain appliances with large
charge sizes as important to serve the purposes described in subsection
(h) to minimize the release of regulated substances. For these reasons,
EPA disagrees with the commenter's suggested compliance date of January
1, 2029.
With respect to the comment requesting a three-year compliance
timeframe for existing operations and further stating that EPA has no
statutory obligation to require compliance within a shorter time frame,
EPA responds that it recognizes that the AIM Act does not expressly
establish a specific timeframe for when regulated entities need to
comply with regulations under subsection (h)(1) of the AIM Act, leaving
EPA discretion to determine what time period is appropriate in the
context of the specific regulations promulgated. Congress identified
three purposes for regulations under subsection (h)(1): maximizing
reclamation, minimizing releases of HFCs from equipment, and ensuring
the safety of technicians and consumers. Congress's use of the terms
such as ``maximize'' and ``minimize'' in this context indicate that it
intended for the regulations authorized under subsection (h)(1) to have
a substantive and meaningful effect, taking into account the other
statutory considerations such as whether the controls are appropriate.
Because the compliance date could affect the amount of HFC emissions
that occur from equipment or the amount of HFCs available for
reclamation, these terms inform EPA's consideration when it is
determining whether to establish a later compliance date for
regulations under subsection (h)(1), and if so, what compliance date is
appropriate. Thus, in establishing the compliance date for the
requirements to use and install ALD systems under the final rule, EPA's
objective is to allow sufficient time--but not more time than is
needed--to facilitate compliance and achieve the regulatory objectives.
For example, if EPA were to establish an unnecessarily long compliance
date for installation and operation of ALD systems, that could result
in emissions for HFCs from equipment that could have been prevented
through an earlier compliance date. By the same token, establishing a
compliance date that does not provide sufficient time for compliance
could also have a deleterious effect on the regulations' ability to
achieve these purposes if the result is that entities fail to properly
comply.
The Agency acknowledges one commenter's suggestion to provide a
narrow exemption for owners or operators who could prove they would
transition to a lower-GWP refrigerant-containing appliance. The Agency
responds that it is not finalizing the exemption that the commenter
describes because owners or operators who transition to a lower-GWP
refrigerant are not necessarily exempt from the ALD and broader leak
repair requirements in this final rule. The overarching applicability
for refrigerant-containing appliances subject to these requirements in
the final rule is whether or not the refrigerant-containing appliance
uses an HFC or substitute for an HFC with a GWP greater than 53. For
example, an owner or operator at the end of a refrigerant-containing
appliance's useful life may transition to a lower-GWP refrigerant that
contains an HFC or substitute with a GWP greater than 53 and would thus
still be required to install and use an ALD system. In some cases, an
owner or operator will transition to a refrigerant that does not
contain an HFC or does not have a GWP greater than 53 (e.g., R-477) and
is not required to install an ALD system.
Comment: The Agency also received general comments regarding the
compliance dates for the final rule's ALD provisions. One commenter,
acknowledging the need for proper leak detection, expressed concern
that the proposal's timelines were too aggressive and that many of the
requirements and leak detection methods needed further clarification.
Another commenter who generally supported the ALD provision opposed any
compliance date less than three years from publication of the final
rule, on grounds that it will take manufacturers and appliance owners
considerable time to plan, procure, and install ALD systems. One
commenter proposed that EPA could consider making the compliance date
earlier. Another commenter asserted that technicians would need to be
trained and re-certified to handle HFCs and work with ALD equipment.
They claim ALD systems were not broadly used for any of the ODS-
substitutes when the 40 CFR part 82 rules for HFC management under the
CAA were in effect. The commenter requested EPA finalize a compliance
date at least 180 days after publication of the final rule.
Another commenter claimed the proposed rule's compliance dates were
impractical for large aviation and defense manufacturers. The commenter
stated that manufacturing military, aerospace, and space end-use
products is often subject to significant oversight or control by other
Federal entities such as the U.S. Department of Defense and the FAA,
which can include scrutiny of manufacturing processes. Further, the
commenter claimed that some refrigerant-containing appliances used for
IPR are uniquely designed and may not be compatible with ``off-the-
shelf ALD'' systems; thus, engineering design modifications or re-
engineering could be necessary to ensure functionality of both the IPR
equipment and the ALD system. The commenter requested EPA extend the
compliance deadlines until 2027 for these reasons and also stated that
the extension would be consistent with EPA's extension of the IPR
transition date in the 2023 Technology Transitions final rule.
Response: The Agency is finalizing a new compliance date for new
and existing refrigerant-containing appliances subject to the ALD
provisions. New IPR and commercial refrigeration appliances that
contain an HFC or HFC substitute with a GWP greater than 53 are
required to install and use an ALD system starting January 1, 2026. EPA
expects that the installation of an ALD system will be a part of the
overall refrigerant-containing appliance installation; however, owners
or operators have 30 days after the installation of a refrigerant-
containing appliance to install and use an ALD system. For existing
refrigerant-containing appliances installed on or after January 1,
2017, owners or operators are required to install and use an ALD system
by January 1, 2027. The changes to the compliance date should address
commenter's concerns and requests for additional time (e.g., 180 days,
two years). The Agency has also
[[Page 82744]]
provided more information on the leak detection requirements in this
section and additional clarity on direct and indirect ALD systems in
section IV.D.1, as requested by one commenter. EPA disagrees that the
compliance timeline should be extended to at least three years after
the final rule's publication. Both new and existing IPR and commercial
refrigeration appliances have been given additional time to comply with
the ALD requirements which will allow owners or operators the necessary
time to plan, procure, and install an ALD system. Further, the
applicability for existing IPR and commercial refrigeration appliances
has been changed to ensure the supply of ALD systems is available and
further facilitate compliance with the requirements. Existing IPR and
commercial refrigeration appliances have over two years to install an
ALD system. Furthermore, the Agency is not merging the overall
compliance dates for the ALD requirements because new IPR and
commercial refrigeration appliances will be able to readily integrate
ALD systems. As previously stated, EPA views the ALD requirements for
certain appliances with large charge sizes as important to serve the
purposes described in subsection (h) to minimize the release of
regulated substances. For these reasons, EPA finds the compliance dates
in this final rule to be appropriate and disagree with the commenter's
request for three years to comply with these requirements.
EPA acknowledges one commenter's proposition that the Agency could
hasten the compliance date for existing equipment, However, EPA is not
finalizing an earlier compliance date. The Agency does not agree that
an earlier date can be met by all regulated entities for many of the
reasons stated throughout this section and offered by other commenters.
However, a regulated entity could choose to install an ALD system ahead
of the compliance date, and there may be a variety of benefits to the
regulated entity in doing so, including reduced refrigerant emissions
and associated costs.
The Agency responds to one commenter's points that ALD systems were
not broadly used for any of the ODS-substitutes when the part 82,
subpart F rules for HFC management were in effect. The State of
California has mandated the use of ALD for HFC-containing appliances
with a charge size above 2,000 pounds since 2011. The commenter's
insinuation that ALD use has historically been minimal is not accurate.
Moreover, ALD systems have been used for those seeking to monitor their
systems for various reasons besides compliance with regulations ranging
from meeting environmental stewardship goals to reducing costs of
refrigerant by detecting and subsequently repairing leaks. EPA also
disagrees with the commenter's assertion that technicians need training
and re-certification to handle ALD systems. To the extent that this
comment relates to technician certification requirements under CAA
section 608, the Agency did not reopen CAA section 608 regulations
through this action under subsection (h) of the AIM Act, including the
technician certification requirements. Accordingly, the Agency is not
addressing comments related to requirements under CAA section 608 in
this final rule, as they are beyond the scope of this rulemaking and
require no further response. For purposes of public information, the
Agency notes that it periodically updates its test bank of questions to
become a certified technician under CAA section 608 to reflect
regulatory and market changes. The Agency took advanced comments on
technician certification. The information the Agency received may be
used to inform a future rulemaking. The Agency notes that CAA section
608 technician certification is not intended to replace all technician
education and training and anticipates that the same would be true for
any future AIM Act certification program. The Agency understands that
employers may provide additional onsite training and that industry
organizations provide information on regulatory updates and market
changes.
EPA recognizes that other Federal agencies have various roles and
responsibilities defined by different statutes. The Agency disagrees,
however, that the ALD provisions being finalized in this action will
spur significant oversight and scrutiny, as one commenter asserted. The
final rule requires a specific portion of IPR and commercial
refrigeration appliances (i.e., with charge sizes of 1,500 pounds or
more) to install and use ALD systems. These appliances may be used by
the military (e.g., commissary) or at airports, for example, but these
uses are not functionally different from the uses of other appliances
in these same subsectors at other locations.\80\ The Agency's
longstanding CAA section 608 regulations already includes leak repair
requirements for the same equipment. The Agency acknowledges that
subsection (h)(3) of the AIM Act provides that EPA ``may coordinate''
with certain other EPA regulations that involve ``the same or a similar
practice, process, or activity regarding the servicing, repair,
disposal, or installation of equipment'' or reclaiming, and EPA has
coordinated many aspects of this final rule. The commenter also
asserted that moving the compliance date to 2027 would align the ALD
requirements in the final rule with the IPR transition in the 2023
Technology Transitions Rule. EPA has extended the compliance date to
January 1, 2027, for existing refrigerant-containing appliances but
clarifies that the decision was not based on an alignment with the 2023
Technology Transitions Rule. The Agency finds such an alignment in this
instance to be unfounded. The 2023 Technology Transitions Rule covers
new equipment and setting GWP limits. This provision under subsection
(h)(1) is focused on the management of HFCs and in this case in
refrigerant-containing appliances.
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\80\ The Agency has provided exceptions for military equipment
used in deployable and expeditionary applications, as well as space
vehicles.
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1. Automatic Leak Detection Requirements
In the final rule, refrigerant-containing appliances in the
commercial refrigeration and IPR subsectors with a charge size of 1,500
pounds or more with a refrigerant that contains an HFC or a substitute
for an HFC that has a GWP above 53 are required to use ALD systems. The
refrigerants covered are the same as for the leak repair provisions,
but the full charge size cutoff for using ALD systems (i.e., 1,500
pounds) is greater than that of the other leak repair provisions in
this rulemaking (i.e., 15 pounds). EPA acknowledges that using ALD
systems for refrigerant-containing appliances that have lower
refrigerant charge sizes (i.e., below 1,500 pounds) may be an option an
owner or operator could take so they are alerted to leaks sooner.
Additionally, owners or operators may choose to install and use ALD
systems in lieu of quarterly and annual leak inspections as previously
discussed in section IV.C.3.d. As discussed in the proposal, EPA
considered several potential options of the threshold for requiring ALD
systems (e.g., 15 pounds, 50 pounds, 500 pounds) and other thresholds
used internationally and by certain States (i.e., California and
Washington). However, EPA is not requiring use of ALD systems for
refrigerant-containing appliances with less than 1,500 pounds. As
discussed later in this section, EPA also considered the supply of ALD
systems when determining the applicability of appliances because
adequate supply of
[[Page 82745]]
ALD systems is required to facilitate compliance with this provision.
Larger refrigeration appliances have potential to leak greater amounts
of refrigerant, such that owners or operators use of an ALD system to
quickly detect leaks further supports the statutory purposes in
subsection (h) of minimizing releases of HFCs from equipment and
maximize the amount of HFC that is available for reclaiming. Moreover,
EPA understands that owners or operators of appliances with larger
charge sizes (i.e., at or above 1,500 pounds) may be more likely to
have in place refrigerant management plans, routine equipment
inspections, or other formal or even informal mechanisms aimed at
reducing refrigerant losses for which ALD will provide additional
support.
Comment: The Agency received many comments in support of the charge
size threshold. One commenter expressed support for the proposed
threshold given the cost burden associated with the installation of
some ALD systems. Another commenter expressed support for the charge
size threshold and stated that the requirements will help reduce
emissions from large appliances at greater risk of leaks. One commenter
in support of the provision stated that ALD systems are widely
available and quickly becoming best practice for leak reduction, even
for smaller systems.
Conversely, one commenter stated that EPA should change the charge
size threshold to 2,000 pounds or more and asserted that the proposed
ALD installation requirements would be unduly burdensome for retailers
with large refrigeration systems, particularly in the retail food
sector. The commenter stated that significant costs would be imposed
because of equipment costs and technician fees. One commenter suggested
the Agency lower the ALD charge size threshold to 100 pounds per
refrigerant circuit. Alternatively, the commenter suggested the ALD
provision may be better suited if it was based on annual leak rates
instead of charge size. For example, if an owner or operator had
equipment designed to contain more than 250 pounds of refrigerant that
had leaked more than 20 percent for two years, ALD would be required to
be installed within six months. This would target problematic systems
and avoid unnecessary added cost for non-leaky systems. Another
commenter felt the inclusion of ALD for systems at or above 1,500
pounds was superfluous because the flammability of certain refrigerants
below a GWP of 150 at high charge sizes would already necessitate ALD
to comply with building safety codes. The commenter suggested that EPA
defer to State and local building codes and make adjustments to
determine if the requirement is necessary.
Another commenter provided a case study of a leak survey on a
university campus analyzing appliances with a charge size at or below
50 pounds. The commenter maintained that small-to-medium-sized
appliances contributed an unexpectedly large portion of their
refrigerant emissions and that without a lower ALD charge size
threshold, facility mangers would likely not allocate sufficient
resources to reducing leaks from smaller equipment. The commenter
stated that ALD systems are commercially available for medium-sized
cooling appliances that have a charge size much lower than 1,500
pounds.
Response: The Agency is finalizing the ALD charge size threshold of
1,500 pounds for IPR and commercial refrigeration appliances that
contain an HFC or HFC substitute above a GWP of 53. The 1,500-pounds
threshold applies to a large group of commercial refrigeration and IPR
appliances that have a high potential to leak large amounts of
refrigerant. EPA considered various options in the proposal and
informed by the comments finds the 1,500-pound charge size threshold to
be appropriate. The Agency acknowledges numerous comments in support of
the provision.
The Agency disagrees with the comment that the ALD charge size
threshold will be overly burdensome for supermarket refrigeration
systems. Supermarket systems will uniquely benefit from the inclusion
of ALD as a large majority of supermarkets utilize commercial
refrigeration appliances with a charge size at or above 1,500 pounds
and that, as this commenter noted and is discussed in section IV.C.3.b,
have a high average leak rate of 25 percent.\81\ Early identification
and repair of leaks may save owners and operators money on the costs of
refrigerant, which would have otherwise been lost until an owner or
operator noticed a decline in performance and added refrigerant. Early
detection of refrigerant leaks may also lead to some other savings that
are not accounted for in the analysis presented in the Economic Impact
and Benefits TSD, such as prolonged life of equipment and reduced
spoilage of food or other temperature-sensitive items contained in or
processed by refrigerant-containing appliances. EPA notes that the
commenter did not provide adequate data to suggest that the retail food
industry would be significantly burdened by the provision. EPA
recognizes that there are compliance costs and benefits associated with
the ALD provision, including from detecting and repairing leaks early.
EPA also acknowledges that supermarkets are moving to smaller charge
sizes. By including only appliances installed on or after January 1,
2017, the Agency is finalizing an approach that excludes refrigerant-
containing appliances that are closer to said appliance's EOL,
providing owners or operators additional flexibility. EPA also
disagrees with one commenter's suggestion to require ALD based on high
annual leak rates. The commenter claims that this would accurately
target leak-prone appliances and reduce the burden on non-leaky
equipment. EPA disagrees that this approach would function better than
the final rule's inclusion of IPR and commercial refrigeration
appliances with a charge size at or above 1,500 pounds. The commenter's
approach is an interesting alternative that would use a triggering
event to denote which appliances are to be subject to the requirements.
However, as mentioned in the response to comments on the supermarket
sector, the referenced 25 percent average leak rate would mean on
average the supermarket sector typically would exceed the triggering
event suggested by this commenter. While a triggering event could be
considered in the future, in particular if EPA were to consider
subsectors with lower typical charge sizes, in this instance EPA did
not receive sufficient information to support this approach.
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\81\ See comment ID EPA-HQ-OAR-2022-0606-0138 in the docket for
this rulemaking, available at https://www.regulations.gov/comment/EPA-HQ-OAR-2022-0606-0138.
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The Agency also disagrees with one commenter's assertion that the
inclusion of ALD is unnecessary due to the State and local building
codes requiring ALD for flammable refrigerants. If there are State and
local requirements to install ALD systems that will detect refrigerant
emissions, these requirements are complementary to EPA's intent.
However, these State or local requirements do not supplant the Agency's
requirements or their intent. Many appliances not using a flammable
refrigerant will be affected by the final rule's ALD provisions, but
the requirements are applicable to all refrigerants, not just the
flammable refrigerants. Furthermore, the Agency has previously
acknowledged that UL Standards for A2L refrigerants requires the use of
leak detection elsewhere in this section. The standards related to A2L
refrigerants and State and local building codes do not nullify the
authority of EPA to regulate the use of
[[Page 82746]]
ALD systems to minimize the release of regulated substances.
With regard to the commenter that advocated for the use of ALD of
medium-sized appliances because of their findings of substantial leaks
from small and medium-sized appliances on a university campus, the
Agency recognizes that smaller systems under 1,500 pounds may still be
prone to leaks and thus the Agency is also finalizing the separate leak
repair requirements for refrigerant-containing appliances with 15
pounds or more of refrigerant. EPA agrees with the two commenters who
stated that ALD systems are commercially available for medium-sized
appliances and are becoming the best practice for refrigerant
management. While EPA is not finalizing a lower threshold at this time,
EPA may consider a lower charge size threshold in a future notice-and-
comment rulemaking. The Agency encourages consideration of using ALD
systems by the owners and operators of refrigerant-containing
appliances with charge sizes of less than 1,500 pounds of refrigerant.
Comment: EPA received several comments regarding the applicability
of the proposed ALD provision. Two commenters suggested adding comfort
cooling. One of the commenters specifically asked the Agency to
consider including all new and existing RACHP appliances, IPR,
commercial refrigeration, and comfort cooling systems with charge sizes
at or above 200 pounds. The commenter stated that 200 pounds was a
point of inflection for proposed GWP limits under the 2023 Technology
Transitions Rule and would promote an enhanced approach over European
Union standards, expediting emissions reductions in the heating,
ventilation, air conditioning, and refrigeration (HVACR) industry. The
commenter also expressed concerns that the 1,500-pound threshold may
incentivize design modifications aimed at installing appliances that
are exempt from the ALD requirements. They further asserted that owners
or operators may install multiple smaller appliances with lower charge
sizes. Another commenter similarly claimed that the rule's charge size
threshold and applicability of appliances would exempt a high
percentage of commercial facilities from the ALD requirements and
undermine the intent of the rule. The commenter suggested that EPA
could consider the total cumulative mass of refrigerant being used by
commercial refrigeration and IPR appliances at a facility location,
rather than the mass of refrigerant being used by individual
appliances. Alternatively, the commenter suggested EPA could lower the
charge size threshold to 1,000 pounds per facility and lower the
threshold to 500 pounds of refrigerant in an individual appliance.
Response: EPA is finalizing as proposed that the ALD requirements
only apply to IPR and commercial refrigeration appliances with a charge
size of 1,500 pounds or more. EPA considered and is not establishing
requiring ALD systems for all refrigerant-containing appliances above a
certain charge size. Instead, after considering the opportunities to
reduce leaks and thus minimize emissions, EPA decided to limit this
requirement to commercial refrigeration and IPR appliances. EPA is not
establishing requirements for using ALD systems for appliances used for
comfort cooling. The Agency understands that refrigerant-containing
appliances used for comfort cooling typically do not leak to the same
degree as appliances in the commercial refrigeration and IPR
subsectors. Medium (charge size of 200 to 2,000 pounds of refrigerant)
and large (charge size 2,000 pounds or greater of refrigerant) comfort
cooling appliances average annual leak rates of around 10 percent,
while medium and large commercial refrigeration and IPR appliances have
average leak rates that are around two to three times greater.\82\ This
is consistent with EPA's requirements for leak inspections, such that
appliances used for comfort cooling would not have more frequent
required leak inspections as a part of the leak repair provisions (see
section IV.C.3.d). EPA previously acknowledged in the 2016 CAA section
608 Rule (81 FR 82272, November 16, 2016) that larger commercial
refrigeration and IPR appliances tend to have larger annual average
leak rates than comfort cooling appliances. Further, larger commercial
refrigeration and IPR appliances would have a greater amount of
refrigerant lost compared to comfort cooling appliances even if the
leak rates were the same since these larger appliances typically have
significantly larger refrigerant charge sizes. Thus, the primary
benefit of early leak detection from an ALD system would not be as
useful for appliances solely used for comfort cooling. However, if an
appliance has a dual function (e.g., IPR and comfort cooling), an ALD
system would be required. For example, if the refrigerant coming off
the evaporator in an industrial process were cool enough, it could be
directed towards co-located offices or break rooms to provide air
conditioning, before being routed back to the compressor(s). Such a
system would provide both IPR and comfort cooling, and for purposes of
this rule, an ALD system would be required.
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\82\ Average annual leak rates by appliance type and charge size
are provided in the Economic Impact and Benefits TSD.
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Similarly, EPA disagrees with one commenter's suggestion to include
all RACHP refrigerant-containing appliances with a charge size above
200 pounds. As discussed previously in this section, the Agency has
changed the applicability of existing IPR and commercial refrigeration
appliances to ensure the supply of ALD systems can meet the demand
created by this final rule's requirements. Lowering the charge size
threshold to 200 pounds (or any other threshold below 1,500 pounds) may
create additional market disruptions and hamper the uptake of ALD
systems for larger IPR and commercial refrigeration appliances, which
this rule is specifically capturing, and thus diminish the potential
emissions reductions for larger refrigerant-containing appliances.
While the Agency encourages the use of ALD systems at any charge size,
EPA does not intend to require such installation in this rulemaking.
The Agency may reconsider the applicability of certain refrigerant-
containing appliances at a specific charge size in a future notice-and-
comment rulemaking.
EPA responds to the commenter's scenario that owners or operators
may circumvent the final rule's ALD provision by installing multiple
smaller appliances. The Agency acknowledges it is possible that
refrigerant-containing appliances that previously used 1,500 or more
pounds of refrigerant could be designed to use 1,450 or less pounds of
refrigerant. While EPA maintains its authority to take action if an
entity violates this final rule's provisions, redesigning refrigerant-
containing appliances to use less refrigerant does not violate the
rule's requirements; it is instead a means to avoid becoming subject to
the current requirements for the installation and use of ALD systems.
Furthermore, using less refrigerant will also result in minimizing
emissions, so if an owner or operator is able to install or redesign a
refrigerant-containing appliance to use less refrigerant that will
serve the purposes described in subsection (h)(1) to minimize the
release of refrigerants from equipment. The Agency disagrees with the
request to consider the total cumulative mass of refrigerants at a
facility location, as suggested by the commenter, as such an approach
may further complicate the ALD provision and implicate systems that are
below the 1,500-pound charge size threshold. As previously stated, the
[[Page 82747]]
Agency is concerned with ensuring that the supply of ALD systems can
meet the demand for ALD systems. The Agency did not propose and is not
finalizing the charge size threshold to operate in the manner suggested
by the commenter.
As a consideration in setting the threshold, EPA accounted for the
extent to which ALD systems may already be in use and the types of
equipment to which they are marketed. For example, many larger
refrigeration appliances (e.g., a charge size of 1,500 to 2,000 pounds
or more) may already use ALD systems per certain State requirements or
to reduce negative economic impacts associated with replacing leaking
refrigerant. EPA also considered the availability of ALD systems for
refrigeration appliances in the United States. In the TSD titled
American Innovation and Manufacturing Act of 2020--Subsection (h):
Automatic Leak Detection Systems in the docket for this rulemaking, EPA
assessed the market presence and number of manufacturers of ALD systems
that sell to the U.S. market. EPA notes that most manufacturers make
direct ALD systems, while indirect ALD systems are newer technologies
on the market.\83\ Since ALD systems have generally only been required
for larger refrigeration appliances per certain State requirements, or
are likely used in refrigeration appliances with larger charge sizes to
avoid potential economic burden associated with replacing refrigerant
that has leaked, EPA anticipates that the current market presence of
ALD system manufacturing is generally aligned to demand for ALD systems
for larger IPR and commercial refrigeration appliances. The threshold
and the change in compliance dates and applicability for this
provision, accounts for the potential increase in demand for ALD
systems, where manufacturers of such systems might not be prepared for
increased demand if EPA were to finalize a lower charge size, opening
the requirement for ALD systems to a larger inventory of refrigeration
appliances. Taking into account existing and pending State
requirements, the 2023 Technology Transitions Rule, and a likely degree
of voluntary adoption of ALD systems, EPA estimates that the
requirement will impact approximately 25,000 appliances between 2025
and 2027, and an average of 150 refrigerant-containing appliances per
year in subsequent years. The Agency has provided these updated
estimates, which differ from those in the proposal (i.e., 50,000
appliances over the year 2025 and 6,500 for subsequent years) because
EPA has adjusted the applicability of existing appliances as discussed
in section IV.D and in consideration that the 2023 Technology
Transitions Rule has been promulgated. The updated estimates also
account for new IPR and commercial refrigeration appliances
transitioning to refrigerants that do not contain an HFC or substitute
for an HFC with a GWP greater than 53. In response to the 2023
Technology Transitions Rule, EPA anticipates that many IPR and
commercial refrigeration appliances will transition to alternatives
with a GWP less than or equal to 53 and thus those refrigerant-
containing appliances will not be subject to the ALD requirements
described in this section. EPA has identified 17 manufacturers of ALD
systems in the United States. There are 14 manufacturers making direct
ALD systems and four manufacturers making indirect ALD systems (one
manufacturer was identified as making both types of ALD systems). The
majority of installed systems are likely direct ALD systems. EPA
estimates that one of the largest manufacturers of direct ALD in the
United States makes between 6,500 and 7,000 direct ALD systems per
year. For additional information and details on the estimated emissions
reductions and costs related to ALD systems, see the Economic Impact
and Benefits TSD available in the docket for this action.
---------------------------------------------------------------------------
\83\ EPA describes each type (i.e., direct and indirect) of ALD
system later in this section and in detail in the TSD titled
American Innovation and Manufacturing Act of 2020--Subsection (h):
Automatic Leak Detection Systems available in the docket for this
final rule.
---------------------------------------------------------------------------
Comment: The Agency received several comments concerned with the
supply of ALD systems. A few commenters stated there would be serious
challenges to obtaining enough ALD systems within the proposal's
compliance timeline. Commenters cited inadequate lead times to procure
ALD systems and supply chain issues. One commenter claimed that they
have been notified by manufacturers and suppliers of the need for
extended lead times when ordering new equipment as all parts of the
supply chain are facing challenges, such as manufacturing, delivery,
and installation. Another commenter stated there are existing methods
and technologies for leak detection in outdoor areas that would serve
as suitable alternatives to an ALD system, considering the challenges
of the proposal's timeline. One commenter claimed that the
manufacturing capacity for both direct and indirect ALD systems would
likely make industry unable to meet the demand during the one year
allotted for existing systems under the proposal. They requested that
EPA conduct a more thorough analysis of the capabilities and capacities
of ALD system manufacturers to meet the one-year peak demand caused by
the proposal. The commenter also requested that EPA consider the
feasibility and cost of its proposal based on that information before
finalizing.
One commenter, an ALD manufacturer requested that EPA extend the
compliance timeline for the installation of ALD to two years based on
their understanding of the ALD market and manufacturers' ability to
meet demand. The commenter stated that in point detection systems, each
point can be considered as an individual system, which is likely why
EPA projects a need for 50,000 systems within the first year. However,
the commenter claimed, in an aspirated low-level detection setup, a
facility may have 16 zones with multiple sampling points in each zone
all incorporated into one system. For this reason, the commenter
expected market demand for low-level aspirated systems (which the
commenter suggested will serve as primary direct detection technology
used to meet AIM Act requirements) to be approximately 3,100 units
annually. The commenter claims that they are the only ALD manufacturer
with existing production volume levels demonstrating the capability of
meeting demand of this magnitude.
Lastly, one commenter stated that indirect ALD systems, which they
manufacture, can be deployed across thousands of sites more quickly and
cost-effectively than solutions that require onsite hardware and site
visits, in addition to providing industry more flexibility. The
commenter also explained that the largest bottleneck for the
implementation of indirect ALD systems are corporate IT security
processes, which can take weeks to months. Once the IT approvals are
completed, the installation of indirect ALD is prompt. The commenter is
confident that they, and other ALD manufacturers identified by EPA,
have the ability to meet the large surge in ALD system deployments that
would be required under the proposed rule.
Response: In the final rule, EPA has extended the compliance date
of new applicable refrigerant-containing appliances to January 1, 2026,
has changed the applicability of existing IPR and commercial
refrigeration appliances to those installed on or after January 1,
2027, and has extended the compliance date to 2027. For new
refrigerant-containing appliances subject to this provision, the Agency
has provided an additional year to install an ALD system. Existing
refrigerant-containing
[[Page 82748]]
appliances subject to this provision have more than two years to
install an ALD system. With these changes the Agency estimates that
approximately 25,000 refrigerant-containing appliances will be required
to install and use an ALD system between 2025 and 2027, which will
greatly reduce the demand for such systems, limit potential supply
chain issues, and further limit demand-related costs increases. EPA has
provided owners or operators with additional time to plan, procure, and
install an ALD system that meets the requirements described in 40 CFR
84.108, even when considering lead times that may be associated with
ordering ALD systems. Additionally, as reflected in comments from ALD
manufacturers, the supply of ALD systems is adequate to meet the demand
for ALD systems caused by this final rule's provision. The Agency has
also provided additional time, as one of the manufacturers requested,
to ensure the ALD suppliers can manufacture and supply ALD systems to
owners and operators subject to the ALD installation and use
requirements. The additional time will also provide owners or operators
time to work through corporate IT processes so they can quickly
implement indirect ALD systems. For these reasons, the Agency disagrees
with one commenter's perspective that ALD manufacturers would not be
able to meet the demand for ALD systems. EPA with additional
consideration, informed by comments finds the supply of ALD systems to
be adequate to meet the compliance dates established in this final
rule.
The Agency disagrees with one commenter's claim that there are
existing methods and technologies for detecting leaks in outdoor areas
which are suitable alternatives to ALD. The commenter did not provide
any additional information on what these methods or technologies would
include, nor did they specify how such technologies would continuously
monitor refrigerant-containing appliances. The Agency is aware that
direct ALD systems cannot detect refrigerant outdoors; however, the
final rule specifically requires the use of direct ALD systems to
monitor leak-prone components within an enclosed space. Furthermore,
leak inspections following a successful follow-up verification test are
required for all portions of an appliance not monitored by a direct ALD
system. Additionally, indirect ALD systems are capable of monitoring
the entire refrigerant-containing appliance. For these reasons, EPA
disagrees with the commenter's views that there are available
techniques or technology that can supplant the need for ALD systems.
Direct refrigerant leak detection systems are fixed hardware that
continuously monitor the concentration of refrigerants in the air.
Continuous monitoring of a refrigerant-containing appliance can also
include direct ALD systems, which directly monitor said appliance
through cycling. For direct ALD systems, it is essential that gas
sensors be located at all leak-prone components of a refrigeration
system; otherwise, some leaks may go undetected. The benefits of direct
ALD systems include being able to pinpoint the location and severity of
a leak. Direct ALD systems are commissioned to send an ``alarm'' to
maintenance and/or operations staff if the programmed leak level
threshold is exceeded. EPA is not establishing a definition of direct
ALD systems in this rulemaking and clarifies that any direct ALD system
which meets the criteria described in 40 CFR 84.108(f)(1)(2)(3) (e.g.,
accurately detects a concentration of 10 ppm of vapor) is acceptable to
use. Some types of acceptable direct ALD systems include but are not
limited to:
Point gas detection systems;
Aspirated (or pumped) detection systems.
EPA is requiring owners or operators using direct ALD systems to
comply with the provisions to detect and repair refrigerant leaks in
appliances. Leak detection sensors must be capable of accurately
detecting a concentration level of 10 ppm of the vapor of the specified
refrigerant and must alert an owner/operator if refrigerant
concentrations exceed 100 ppm. As discussed in the proposal, the
technical feasibility of the 100 ppm threshold is well established.
This has been the threshold used by CARB and is also the standard in
provisions at 40 CFR 82.157(g)(4)(i) for ALD systems that are used as a
compliance option in lieu of quarterly or annual leak inspections, as
part of the leak repair requirements under CAA section 608. If a leak
is detected above the 100 ppm threshold, the owner or operator is
required to either perform a leak rate calculation to determine if the
leak rate threshold has been exceeded, or alternatively they may
preemptively repair the leak before adding refrigerant and calculating
the leak rate. In order to calculate the leak rate, EPA refers the
reader to section IV.C.3.a of this preamble. EPA is requiring that a
leak rate calculation must be performed within 30 days (or 120 days
where an industrial process shutdown is necessary) of the alarm where a
direct ALD system is used for required equipment. If the calculated
leak rate is above the applicable leak rate, as discussed in section
IV.C.3.a of this preamble, all of the leak repair requirements in this
action (including the repair requirements, inspections, verification
tests, and recordkeeping and reporting) will apply.
Alternatively, if the owner or operator chooses to preemptively
repair the detected leak, a leak rate calculation must be performed
after the preemptive repair; however, the leak rate calculation must
still be performed within 30 days (or 120 days where an industrial
process shutdown is necessary) of the alarm where a direct ALD system
is used for applicable appliances, and accordingly the preemptive
repair will also need to occur in that time frame. If the leak rate
calculation (performed after the addition of refrigerant pursuant to
the follow-up verification test) conducted after the preemptive repair
reveals that the appliance had leaked above the applicable leak
threshold, the suite of leak repair requirements would apply. The
preemptive repair actions can be considered in determining whether the
suite of leak repair requirements triggered by the exceedance of the
applicable leak threshold have been satisfied, but the owner or
operator of the appliance must still ensure that the leaks are repaired
according to the definition of repair and that the other requirements
in 40 CFR 84.106 (e.g., initial and follow-up verification tests, leak
inspections (where applicable), and related recordkeeping) had been
met. By allowing a leak detected by an ALD system to be preemptively
repaired before the addition of refrigerant and calculation of the leak
rate, EPA anticipates this will avoid requiring owners and operators to
add refrigerant to a system with a known leak, thereby saving the cost
of refrigerant that might subsequently leak prior to the repair, as
well as prevent unnecessary emissions of refrigerant. Additionally,
preemptive repair of leaks allows owners or operators to have a ``head
start'' on repairing leaks if it is later found that the applicable
leak rate threshold has been exceeded when the leak rate calculation is
performed.
Comment: EPA received several comments on direct ALD systems. One
commenter expressed concern with the proposed language, ``for direct
ALD systems, it is essential that gas sensors are located at all leak-
prone components of a refrigeration system.'' The commenter views this
framing as providing too much flexibility that could lead to unintended
outcomes (i.e., ineffective implementation of ALD that
[[Page 82749]]
does not lower refrigerant leak rates as desired). The commenter
claimed that in California, many facilities mount single-point (passive
diffusion) gas detectors on the wall of the mechanical room to comply
with CARB regulations. The commenter stated that this method is
technically compliant with ALD requirements but is only partially
effective at detecting leaks in the mechanical room (due to its
distance from most refrigeration components in the mechanical room),
and it is completely ineffective at detecting leaks in other parts of
the facility outside of the mechanical room. The commenter recommended
adding clarifying language to ensure that gas sensors are located
within six feet of all leak-prone components of a refrigeration system.
The commenter also recommended defining ``leak-prone components of a
refrigeration system'' as ``all components of a refrigeration system
that contain liquid or gas except for straight runs of piping,
inclusive of compressors, evaporators, valves, condensers, headers,
receivers, oil separators, oil traps, accumulators, other pressure
vessels, etc.''
Another commenter provided information on the applications of
different types of direct ALD systems in the HVACR industry. The
commenter stated that point detectors serve a primary purpose of
enabling compliance with operational safety guidelines for personnel.
The commenter asserted that the devices are typically wall-mounted
within an occupied space, and sometimes cannot detect a leak due to
dilution and air exchange in the greater space which can cause the room
to remain below the 500-900 ppm alarm level set for personnel safety.
For these reasons, the commenter stated that these detection systems
are used for occupant safety and not as a targeted solution for
emissions reduction. The commenter also claimed that the proposed rule
could be read to preclude aspirated detection systems (e.g., requiring
``continuous'' monitoring and placement of the ``sensor''). Therefore,
the commenter proposed modifying the language to replace ``continuously
monitor'' with ``actively monitoring.'' Alternatively, the commenter
proposed that ``continuously monitor'' could be defined to include
devices that actively or directly monitor via cycling. The commenter
stated that without one of these edits, the proposed rule would not
allow for low-level leak detection equipment that is designed to
identify leaks for environmental purposes and requires an established
cycle time to sample multiple points, rather than ``continuously
monitor'' one specific point. The commenter also suggested that EPA
remove ``condenser'' from its examples of what components a direct ALD
system should monitor.
Response: EPA acknowledges commenters' concerns with the
implementation of direct ALD systems. EPA disagrees that the
description of ALD in the preamble provides too much flexibility to
owners or operators which will result in ineffective leak detection.
The Agency clarifies that direct ALD sensors must be placed on or near
leak-prone components (e.g., compressor, evaporator, condenser) or
along points of the entire refrigerant circuit if it is entirely
enclosed within a building or structure. EPA is not specifying a set
distance for gas sensors as the commenter suggests but strongly
encourages owners or operators to install gas sensors as close to
components as possible. EPA agrees that a single, wall-mounted point
detection system in a mechanical room is ineffective at detecting
leaks. The Agency reiterates that direct ALD gas sensors will need to
be placed on or near leak-prone components so that an appliance is
adequately monitored for leaks. EPA is not prescribing a set number of
sensors because the refrigerant-containing appliances subject to these
requirements are varied in design; however, the Agency clarifies that
multiple gas sensors may be required to meet the standards for direct
ALD systems. The Agency is not finalizing the commenter's proposed
definition of ``leak-prone components of a refrigeration system''
because the Agency has already finalized a definition for component:
``as it relates to a refrigerant-containing appliance, means a part of
the refrigerant circuit within an appliance including, but not limited
to, compressors, condensers, evaporators, receivers, and all of its
connections and subassemblies.'' The leak-prone components where gas
sensors are to be placed for direct ALD systems fall under that
definition. The Agency agrees that direct ALD systems are not effective
for portions of an appliance that are outside of an enclosed space;
however, for portions that are located within an enclosed space that
have a high chance for leakage EPA finds it appropriate to use direct
ALD systems. When a leak is detected and a refrigerant-containing
appliance is found to be above the applicable leak rate, an owner or
operator is required to inspect all portions of a refrigerant-
containing appliance not monitored by an ALD system as discussed in
section IV.C.3.d.
In response to one commenter's request to modify the description of
direct ALD systems in the rule, EPA has provided additional detail on
what types of direct ALD systems are acceptable to use. As discussed in
this preamble, the Agency is not establishing a definition of direct
ALD systems in this rule; however, EPA clarifies that any direct ALD
systems that meet the criteria described in 40 CFR 84.108(f)(1)(2)(3)
are acceptable to use for the purposes of leak detection. This includes
the use of point detection systems, aspirated detection systems, or any
other existing or future direct ALD technologies that can accurately
detect a concentration level of 10 ppm of vapor of the specific
refrigerant(s) used in an appliance, alerts the owner or operator of
when a refrigerant concentration of 100 ppm is reached, and is able to
have sensors or intakes that continuously monitor the refrigerant
concentrations in air in proximity to leak-prone components. EPA is not
changing the term ``continuously monitoring'' however the Agency
further clarifies that the term does not preclude the use of direct ALD
systems that actively or directly monitor an appliance via zonal
cycling. EPA views direct ALD systems that actively monitor portions of
a refrigerant-containing appliance as falling under the term
``continuously monitor.'' EPA disagrees with the commenter's claims
that point detection systems cannot adequately provide leak detection
monitoring for the purposes of leak reduction. While it is true that
point detection systems are utilized to comply with occupational safety
standards, point detection systems that meet the standards of the final
rule are also able to provide adequate leak detection and monitoring
for a refrigerant-containing appliance. EPA reiterates that a single,
wall-mounted point detection sensor would not provide adequate coverage
for an appliance; thus, multiple sensors are needed to cover leak-prone
components on an appliance. EPA is also not preventing the use of any
direct ALD system that meets the rule's standards because the Agency
does not want to further limit the supply of direct ALD systems for
owners or operators. The Agency's standards for direct ALD serve the
purpose of minimizing the release of refrigerants from appliances while
also providing enough flexibility in direct ALD technologies so that
owners or operators are able to comply with the rule's ALD provision
within the provision's compliance timeframe.
Comment: The Agency received numerous comments on the alarm
[[Page 82750]]
threshold for direct ALD systems. The majority of commenters requested
EPA that reconsider the proposed 100 ppm threshold and finalize at a
lower threshold, either 50 ppm or 10 ppm. One commenter suggested using
a <10 ppm threshold to achieve full emissions reduction potential. The
commenter cited their report on refrigerant leaks at major supermarket
stores demonstrating that many commercial refrigeration leaks are under
10 ppm. Of all the leaks the commenter detected across dozens of
stores, less than 5 percent were at a concentration greater than 100
ppm, however, 29 percent ranged from 10-to-100 ppm on the sales floor.
The remaining 67 percent of leaks were found to have concentrations
less than 10 ppm. Thus, the commenter advocated that EPA use an alarm
threshold lower than 10 ppm because small concentrations of refrigerant
can be indicative of large leaks within an appliance. Another commenter
recommended the alarm threshold be lowered to 10 ppm because of
improvements in sensor technology. Finally, one commenter stated the
100 ppm threshold may need to be lowered if EPA is seeking ALD from
flanges in a central location. The commenter further suggested that EPA
consult with CARB or others to verify the efficacy of the 100 ppm
threshold.
One commenter recommended an alarm threshold of 50 ppm for direct
ALD systems while maintaining an accurate detection down to 10 ppm of
the vapor of the specified refrigerant because small leaks under 100
ppm can result in substantial or complete loss of a refrigeration
system over time. The commenter stated that aspirated ALD systems can
detect refrigerant vapor at a resolution of 1 ppm and are capable of
alerting an owner or operator at an alarm threshold of 10 or 25 ppm.
However, the commenter suggested that a 50 ppm alarm threshold would be
more appropriate because small leaks could be more readily detected and
reduce nuisance alarms that may happen more frequently at lower alarm
thresholds. The commenter clarified that nuisance alarms are not the
result of noise rather they occur because the aspirated ALD systems can
detect leaks that would have been otherwise unknown to an owner or
operator prior to installation of the ALD system. The commenter also
recommended that EPA not grandfather in any direct ALD systems with
alarm levels above 50 ppm as existing direct ALD systems set to 100 ppm
are solely meeting safety requirements and are not equipped to minimize
release of refrigerant.
Another commenter claimed that long-term ppm limits may not be the
best approach to regulate ALD systems because ppm metrics are specific
to the sensor and do not directly correlate with the ability to detect
a leak rate over a given time. The commenter also stated that they are
aware of only one sensor on the market that can detect to a 10 ppm
resolution. The commenter provided several examples of existing direct
ALD systems and provided suggested specific levels of detection that
are appropriate for the type of direct ALD system. For aspirated
systems, the commenter suggested a threshold of 10 ppm would be
appropriate. For single-zone diffusion (point detection) systems, the
commenter suggested a threshold of 200 ppm would be more appropriate.
Finally, for appliance-level sensors, primarily used to comply with UL
60335-2-89 for the use of flammable refrigerants, the commenter
suggested a minimum threshold of 500 ppm.
Response: EPA is finalizing the alarm threshold for direct ALD
systems as proposed. The Agency finds the alarm threshold appropriate
to detect leaks from refrigerant-containing appliances faster while
preventing false alarms that may occur at lower ppm thresholds. EPA
also finds it appropriate to remain consistent with existing alarm
criteria under the CAA and State refrigerant management programs. EPA
disagrees with one commenter requesting that the Agency not grandfather
in existing ALD systems with alarm thresholds above 50 ppm. While a
portion of ALD systems currently in use were installed to meet safety
standards many other ALD systems were installed by owners or operators
for the purposes of leak detection. The Agency is not requiring owners
or operators with existing ALD systems that meet the standards in 40
CFR 84.108(f)(1)(2)(3) to install new ALD systems. Owners or operators
with existing ALD systems will need to ensure their current ALD systems
meet the rule's standards and are providing adequate monitoring of
leak-prone components of a refrigerant-containing appliance.
Additionally, the Agency does not want to deny existing ALD systems
that meet the standards of this rule because doing so could exacerbate
potential ALD supply issues and reduce overall compliance with the
provision.
EPA acknowledges the information one commenter provided on leaks
detected at supermarkets and agrees that small amounts of refrigerant
detected can be indicative of larger leaks within a refrigerant-
containing appliance. However, EPA does not find the 100 ppm threshold
to be incongruous with the discovery of large leaks and the timely
repair of refrigerant-containing appliances that are leaking above the
applicable leak rate threshold. EPA reiterates that this rule is not
requiring the repair of all leaks, rather, this rule is requiring that
leaks be repaired to the extent that a refrigerant-containing appliance
is leaking below the applicable leak rate threshold. In the context of
the appliances subject to this provision the leak repair provisions
would begin once the leak rate has exceeded 30 percent for IPR and 20
percent for commercial refrigeration appliances. Setting the threshold
to <10 ppm, 25 ppm, 50 ppm, or any other threshold below 100 would in
fact alert an owner or operator to the presence of more leaks. However,
these discovered leaks would most likely not cause the refrigerant-
containing appliance to exceed its applicable leak rate threshold. For
example, if EPA were to set the alarm threshold at 10 ppm a pinhole
leak on a component near a sensor may alert an owner or operator to a
relatively small leak. The ALD provision of this final rule is intended
to find larger leaks faster in refrigerant-containing appliances that
can emit large amounts of refrigerant from one leak event. When a
larger leak is detected by an ALD system, the owner or operator has 30
days to conduct a leak rate calculation or attempt to preemptively
repair the leak. Since EPA is not requiring the repair of all leaks,
setting the alarm criteria below 100 ppm could create a situation where
an alarm is continually alerting an owner or operator of a leak that
has been found not to be causing the refrigerant-containing appliance
to leak above the applicable threshold. Nuisance or false alarms from
ALD systems may decrease compliance with the leak repair provisions of
the final rule because owners or operators may begin to ignore alerts
for the ALD system. Thus, the 100 ppm alarm threshold reduces the risk
of false alarms while ensuring that larger leaks from refrigerant-
containing appliances are detected and alert owners or operators to
take further action.
Regarding one comment asserting that ppm may not be the best
approach to regulate ALD systems because ppm does not correlate to the
ability to detect a leak rate, EPA clarifies that the purpose of the
ALD provision is to detect leaks sooner, not calculate the leak rate of
a refrigerant-containing appliance. As previously discussed in section
IV.C.3.a, the final rule's leak rate calculation methodologies are the
only appropriate way to calculate a refrigerant-containing
[[Page 82751]]
appliance's leak rate. The comment is correct that ppm values of a
refrigerant cannot denote how much refrigerant has leaked from a
refrigerant-containing appliance; however, it does alert an owner or
operator to the presence and potential severity of a leak that must be
addressed if the refrigerant-containing appliance is leaking above the
applicable leak rate. EPA also disagrees with the commenter's
suggestion to base ppm thresholds on the type of direct ALD system, as
this may add additional complexity and confusion to the ALD
requirements and may diminish compliance with the provision. The Agency
reiterates that direct ALD systems that meet the standards in 40 CFR
84.108(f)(1)(2)(3) are acceptable to use. If a direct ALD system cannot
meet those standards, then it is not appropriate to use for this rule's
ALD requirements.
Comment: The Agency also received comments in opposition to
lowering the alarm thresholds for ALD systems. One commenter did not
support lowering the alarm thresholds below what EPA proposed because
lower thresholds could result in more frequent alarms, potentially
leading to operational disruptions and false alarms. Another commenter
claimed the proposed conditions of use for ALD systems are arbitrary
and capricious because they will cause numerous false alarms. The
commenter stated the proposed 100 ppm alarm rate for direct ALD systems
and the 50 pound or 10 percent loss of charge for indirect ALD systems
are based on ALD system manufacturer recommendations, and not an actual
correlation with leak rates. The commenter asserted that it is
unreasonable for EPA to adopt regulatory trigger rates, unless EPA has
studied a correlation of the alarm levels with a statistical leak rate
or probability of leaks. In the commenter's members' experience with
ALD systems neither of the alarm thresholds are indicative of leaks.
They recommend the Agency not mandate any alarm threshold below 100 ppm
and not require mandatory inspection unless alarms recur over a
several-day period if the provision is finalized as proposed. One
commenter stated the Agency should allow for flexibility requests for
unforeseen circumstances. The commenter claimed that EPA would be
inundated with nuisance reporting every time an ALD triggers. The
commenter suggested that EPA should consider limiting alerts to above a
CO2eq limit if they proceed with the requirement.
Response: The Agency is finalizing the 100 ppm alarm threshold as
proposed. EPA disagrees with the comments asserting that the alarm
criteria are entirely based on manufacturer specifications, will lead
to numerous false alarms, and is unreasonable or arbitrary and
capricious. If EPA were to base the alarm criteria of this final rule
solely on manufacturer's specification, the final threshold would be
much lower. For example, one ALD manufacturer submitted public comments
on the proposed rule requesting that the Agency reduce the alarm
threshold based on their sensor specifications being capable of
detecting refrigerant vapor well below 100 ppm. EPA is finalizing the
100 ppm threshold based on several considerations. For instance, the
Agency considered the use of 100 ppm as one of the criteria for a
direct ALD system that is used in lieu of quarterly or annual leak
inspections under EPA's regulations under section 608 of the CAA, at 40
CFR 82.157(g)(4)(i). The alarm threshold of 100 ppm for ALD systems is
also consistent with some States' refrigerant management programs and
consideration of information from ANSI/ASHRAE Standard 15-2022 Safety
Standards for Refrigeration Systems, among other factors. Based on
consideration of this information, as well as comments on the proposed
rule, EPA concludes that this threshold is technically feasible and
should be familiar to some stakeholders from their experience under
other regulatory programs, thus facilitating implementation of these
requirements. Further, if the alarm threshold is set too high, the
system may miss some leaks that should be addressed and thus would fail
to serve its intended purpose. EPA understands that a 100 ppm threshold
will minimize the risk of false alarms. However, to the extent that
commenters are concerned about false alarms, under the final rule, they
may elect to perform a leak rate calculation in response to an alarm,
and if that calculation indicates that the equipment is not leaking
above the applicable leak rate threshold, no further action will be
required.
The Agency also disagrees with the commenter's position that
establishing a regulatory trigger rate for the ALD equipment would need
to be based on a statistical evaluation of leak rates or the
probability of leaks. The Agency clarifies that the ALD requirements
serve the purpose of detecting leaks within a refrigerant-containing
appliance earlier but are not intended to substitute for the
calculation or evaluation of a refrigerant-containing appliance's leak
rate. The alarm criteria for direct ALD systems are a specification for
such systems to alert owners or operators to a potential leak and are
not used to determine a refrigerant-containing appliance's leak rate or
the actual severity of a leak, only the presence of a leak. EPA finds
the 100 ppm alarm threshold appropriate to serve the purpose of
alerting the owner or operator of a leak that may potentially cause a
refrigerant-containing appliance to leak above the applicable leak rate
threshold. The Agency has provided information in section IV.C.3.a on
the leak rate calculation methodologies and when leak rate calculations
must be completed. As noted previously, requiring use of ALD systems is
consistent with the authority under in subsection (h)(1) to promulgate
regulations to control, where appropriate, any practice, process, or
activity regarding servicing, repair, or installation of such
appliances, which involves a regulated substance or substitute for a
regulated substance. When an ALD system provides an alarm in a
refrigerant-containing appliance covered by this provision, the owner/
operator must perform practices, processes, and/or activities to
determine whether the equipment is leaking above the applicable leak-
rate threshold and whether service or repair of the refrigerant-
containing appliance is needed. The ALD requirements help to minimize
releases of regulated substances from equipment and maximize the
amounts of refrigerants remaining in equipment for eventual recovery
and reclamation.
EPA disagrees with the commenter's experience that the final rule's
alarm thresholds are not indicative of leaks and disagrees that ALD
system alarms should not be addressed until alarms recur over a period
of several days. The final rule allots 30 days (120 in the event of an
industrial process shutdown) to calculate the leak rate or attempt to
preemptively repair a refrigerant-containing appliance. The leak repair
provisions of this final rule apply once the owner or operator has
determined the leak rate has exceeded the applicable leak rate
threshold. EPA clarifies that the 30-day timeframe for calculating the
leak rate begins once the owner or operator has received an alarm from
their ALD system. This should provide ample time for an owner or
operator to address an alert from an ALD system. The Agency is not
claiming that false alarms will never happen; however, as previously
mentioned the alarm threshold for ALD systems has been set to mitigate
the risk
[[Page 82752]]
of false alarms and operational disruptions. If an owner or operator is
continually having issues with false alarms from their ALD system, they
may consider performing additional calibration or audits to ensure the
ALD system is functioning properly.
For similar reasons, EPA disagrees with a separate commenter
asserting that more time or flexibility would be needed to address ALD
system alerts due to unforeseen circumstances. The commenter
incorrectly stated that the owners or operators would need to report
alarms from ALD systems to the Agency. EPA clarifies that owners or
operators are required to keep records of each date that an ALD alarm
is triggered (see 40 CFR 84.108(i)) and are not required to report each
ALD system alert to EPA. Additionally, the Agency disagrees with the
commenter's suggestion to base the alarm criteria on the exceedance of
a CO2eq thresholds. As previously stated, EPA is finalizing
the alarm criteria for ALD systems to help detect leaks early, so that
if there are leaks that exceed the leak rate threshold, they can be
addressed in a timely fashion. A CO2eq threshold would not
further this purpose. Further, EPA is unaware of any ALD system that
can provide accurate alarms based on a CO2eq threshold as
direct systems are detecting the presence of refrigerant vapor in the
air and indirect systems are detecting volumes of refrigerant lost via
data metrics. The final rule sets an appropriate threshold for owners
and operators to address detected leaks in a timely manner and reduce
the emissions of refrigerant from refrigerant-containing appliances.
Comment: The Agency received a few comments regarding the
preemptive repair provision in the final rule. One commenter stated
that setting a requirement for direct ALD systems to alarm at 100 ppm
but allowing no action to be taken if the leak rate thresholds are not
exceeded, does not further the objective of minimizing release of
refrigerant. The commenter also stated that the ALD system will
continue to alert an owner or operator of the leak if left unrepaired.
The commenter suggested de-coupling the requirement of a leak rate
calculation before fixing a leak identified by an ALD system and
asserted the rule may be confusing for industry and interpreted as
undermining the need for ALD. The commenter further claimed that the
best route for leak mitigation is to find and fix all leaks over the
applicable threshold and that preemptive repair should be the only
recommended solution for leak resolution because the addition of
refrigerant to a leaking appliance will result in the loss of the added
refrigerant. The commenter asserted that the leak rate calculation can
occur after the repair of the leaking appliance.
Another commenter requested clarification on whether an owner or
operator needs to calculate a leak rate after preemptive repair is
conducted. The commenter stated that the rule appears to offer two
compliance options when an ALD system detects a leak; calculate a leak
rate and assess whether the appliance is leaking above the applicable
leak rate threshold or preemptively repair the leak. The commenter
asserted that the requirement of a leak rate calculation seems to be in
conflict with EPA's rationale for preemptive repair discussed in the
preamble: ``to avoid the need to add refrigerant to an appliance with a
known leak (which would otherwise generally be necessary to calculate
the leak rate and determine if the applicable leak rate is exceeded).''
The commenter further claimed that the requirement to conduct a leak
rate calculation will cause owners or operators to incur additional
costs to add refrigerant to a fully functional system for the sole
purpose of a leak rate calculation. As currently written, the commenter
stated that the provision may be economically burdensome and could add
to system downtime. Thus, the commenter suggested the Agency clarify
the regulatory text to not require a leak rate calculation if an
appliance is preemptively repaired.
Response: EPA acknowledges one commenter's recommendation that the
leak rate calculation be decoupled from the final rule's preemptive
repair provision for leaks detected by an ALD system and clarifies that
these are separate requirements. EPA does not view the leak rate
calculation and ALD requirements as incongruous nor does the Agency
find that having both requirements will cause confusion as the
commenter suggested. Rather, where both apply, they are separate parts
of an overall approach to addressing leaks from refrigerant-containing
appliances. The required installation and use of ALD systems for IPR
and commercial refrigeration at or above 1,500 pounds and the option to
preemptively repair a leak in a refrigerant-containing appliance is not
intended to replace the need to calculate the leak rate and to repair
leaks so a refrigerant-containing appliance is below the applicable
leak rate threshold. As noted previously, EPA is not requiring the
repair of all leaks; however, the Agency encourages owners or operators
to preemptively repair leaks detected by an ALD system. The
determination of a leak rate for a leaking refrigerant-containing
appliance is vital to ascertain if a refrigerant-containing appliance
must be repaired. EPA is providing some flexibility to owners or
operators who have been alerted of a leak to either preemptively repair
the refrigerant-containing appliance or calculate the leak rate of said
appliance to determine if the owner or operator must proceed with the
leak repair process. The commenter asserted that preemptive repair
should be the only recommended solution for leak resolution; however,
if a refrigerant-containing appliance is found to have been leaking
above the applicable leak rate threshold after the completion of a
preemptive repair, the owner or operator of the refrigerant-containing
appliance would still be required to follow through with the rest of
the leak repair process (e.g., verification tests, leak inspections,
etc.). Furthermore, the Agency reiterates that the final rule is not
requiring the repair of all leaks; rather, this final rule requires
that leaks be repaired to the extent that they bring the refrigerant-
containing appliance below the applicable leak rate threshold. There
may be some scenarios where an owner or operator may decide to
calculate the leak rate as soon as possible to determine the severity
of a leak and determine if further action is needed. Additionally,
records of leak alerts from an ALD system that do not push the
refrigerant-containing appliance above the leak rate threshold at the
time of the alarm will inform an owner operator if their refrigerant-
containing appliance is having issues with smaller leaks (e.g., pinhole
leaks).
Regarding one commenter's questions on the requirement of a leak
rate calculation after the preemptive repair of a refrigerant-
containing appliance, the Agency notes that the option to preemptively
repair a refrigerant-containing appliance does not remove the necessity
to conduct a leak rate calculation. As previously discussed, the option
to preemptively repair a refrigerant-containing appliance and the
calculation of a refrigerant-containing appliance's leak rate are
separate parts of an overall approach to addressing leaks from
refrigerant-containing appliances. The commenter is correct that the
Agency is providing two compliance pathways when a leak is detected by
an ALD system; however, EPA clarifies that its rationale for the
preemptive repair provision is intended to reduce the emissions of
refrigerant from an appliance that is known to be leaking. EPA
encourages owners and operators to preemptively repair a
[[Page 82753]]
refrigerant-containing appliance for this reason but is not requiring
an owner or operator to do so. In both compliance scenarios the owner
or operator will need to conduct a leak rate calculation to determine
if the refrigerant-containing appliance was leaking above the
applicable leak rate which requires the owner or operator to conduct
the rest of the leak repair process, even if the leak(s) were
preemptively repaired. Preemptive repair gives owners or operators a
``head start'' to the leak repair process and is not a replacement for
the leak rate calculation of the refrigerant-containing appliance. The
Agency disagrees with the framing of the commenter's claims on
additional economic or operational burden to owners and operators
associated with the calculation of the leak rate after preemptive
repair. A refrigerant-containing appliance may be considered ``fully
functional'' after preemptive repair, but a leak rate calculation is
still required in order to determine if the appliance at the time of
the ALD system alarm was leaking above the applicable threshold. If the
refrigerant-containing appliance was leaking above the threshold, it is
required that the preemptive repair be verified and inspected per the
leak repair provisions of this final rule to ensure the repair holds.
EPA reiterates that the preemptive repair of an appliance is not a
substitute for the calculation of a leak rate. Additionally, similar
costs would be incurred if the owner or operator decided to not
preemptively repair a refrigerant-containing appliance and just
calculated the leak rate of said appliance. If that appliance was then
found to be leaking above the applicable leak rate the full suite of
the leak repair provision would apply. Thus, the Agency disagrees with
the commenter's suggestion to remove the leak rate calculation if a
refrigerant-containing appliance is preemptively repaired.
EPA is requiring owners or operators using an indirect ALD system
to comply with the provisions to detect and repair leaks in appliances.
The indirect ALD system must be calibrated to provide an alarm when the
system has provided measurements that indicate that 50 pounds of
refrigerant or 10 percent of the full charge of refrigerant, whichever
is less, has leaked. EPA acknowledges that commercial refrigeration and
IPR appliances would exceed the alarm threshold if 50 pounds of
refrigerant had leaked from an appliance. Therefore, owners and
operators subject to the ALD installation and use requirements in this
final rule that are using indirect ALD systems would be alerted when a
leak surpassed 50 pounds of refrigerant. EPA understands that owners
and operators not subject to the ALD installation and use requirements
that are utilizing an indirect ALD system would receive an alert at 10
percent of full charge lost depending on the charge size of their
refrigerant-containing appliance. For example, an appliance with a
charge size of 200 pounds would alarm when 20 pounds of refrigerant is
lost because the appliance has leaked 10 percent of its full charge.
Once that alarm threshold has been surpassed, EPA is requiring the
owner or operator to perform a leak rate calculation, or alternatively
they may preemptively repair the leak before adding refrigerant and
calculating the leak rate. The same requirements, as described
elsewhere in this section, where an owner or operator chooses to
perform preemptive leak repair when using a direct ALD system apply in
the scenario where preemptive leak repair is performed when using an
indirect ALD system. Similarly, EPA is requiring that a leak rate
calculation be performed within 30 days (or 120 days where an
industrial process shutdown is necessary) of the alarm where an
indirect ALD system is used for refrigerant-containing appliances
subject to this provision. If the calculated leak rate is above the
applicable leak trigger rate (as discussed in section IV.C.3.a of this
preamble), all of the leak repair requirements in this action
(including the repair requirements, inspections, verification tests and
recordkeeping and reporting) would then apply.
As described in the proposal, indirect ALD systems rely on data
analytics to detect leaks rather than the direct detection of
refrigerant gas. Indirect ALD systems monitor the operation of a
refrigerant-based system to infer whether a leak is present. This
method is typically conducted using existing sensors and hardware that
are already located on site, and it relies on algorithms to evaluate
existing conditions, such as liquid levels, temperatures, and ambient
conditions to indicate whether a leak is occurring. EPA understands
that indirect systems can be calibrated to provide an alarm when a
specified predicted refrigerant leak rate has occurred. The Agency is
not establishing a definition of indirect ALD systems in this
rulemaking and clarifies that any indirect ALD system that meets the
criteria described in 40 CFR 84.108(g) is acceptable to use.
Additionally, EPA is requiring that indirect ALD systems monitor at
least two ``measurements'' to determine whether a refrigerant-
containing appliance is leaking above the final rule's alarm criteria.
Some examples of appropriate measurements include but are not limited
to temperature, liquid levels, pressure, and flow rate. Multiple
measurements are required to ensure that an indirect ALD system is
operating as intended and providing owners or operators with accurate
data on the condition of their refrigerant-containing appliance.
The Agency clarifies that a 10 percent loss of full charge does not
directly correspond to the leak rate threshold of 20 percent for
commercial refrigeration and 30 percent for IPR. The 10 percent of
total charge lost when an indirect ALD system alarms may equate to less
than or greater than an annualized leak rate of 20 or 30 percent
depending on the timeframe over which the leak occurred (see section
IV.C.3.a for more information on calculating the annualized leak rate).
In any event, this difference is reasonable because the primary purpose
of the ALD system is to allow the owner or operator to obtain knowledge
of the leak earlier (e.g., before operations are impacted) and to
facilitate earlier repair, whether through preemptive repair before the
leak rate threshold is exceeded or through required repairs after the
leak rate threshold is exceeded. The technical feasibility of the ``50
pounds of refrigerant or 10 percent of the full charge, whichever is
less'' standard is well established. This has been the threshold used
by both CARB and is also the standard in provisions at 40 CFR
82.157(g)(4)(ii) for ALD systems that are used in lieu of quarterly or
annual leak inspections, as part of the leak repair requirements under
CAA section 608.
Comment: The Agency received mixed comments on the inclusion of
indirect ALD in the proposal. One commenter supported the inclusion of
indirect ALD systems in the proposed rule. Another commenter asserted
that EPA should not allow indirect ALD systems as an alternative to
direct ALD systems because indirect ALD systems are newer technologies
that are unproven to satisfy the objectives of this rule. The commenter
suggested that the final rule could include indirect detection as a
helpful supplement to direct detection systems but should not replace
or be permitted as an alternative to direct ALD. The commenter also
stated that no indirect detection system currently complies with safety
standards for occupied spaces and that an additional layer of direct
ALD is required to comply with ASHRAE and other guidance that governs
personnel safety. If indirect ALD systems are going
[[Page 82754]]
to be considered as an alternative or substitute of direct detection,
the commenter asserted that more prescriptive requirements need to be
determined to equate the action levels with direct ALD systems and that
EPA must provide clearer description of indirect systems.
Similarly, another commenter recommended that EPA require indirect
ALD systems to use multiple data points to determine whether a leak is
present. The commenter stated that many ALD systems registered under
their refrigerant management program are indirect ALD systems that only
use room temperature to determine whether a leak is present or not;
however, newer indirect ALD systems generally use multiple data points
working in tandem, such as temperature, pressure, liquid levels, etc.,
to help identify potential leaks. The commenter further stated that
indirect ALD systems utilizing only a single data point (e.g.,
temperature) are reactive to conditions that have occurred after a
potential leak as opposed to indicating a leak when it first occurs,
thus indirect ALD systems using multiple data points are more accurate
at identifying and repairing leaks.
Response: EPA acknowledges comments in support of the final rule's
indirect ALD requirements. As described in 40 CFR 84.108(g) indirect
ALD systems must alarm when ``measurements'' indicate a loss of 50
pounds of refrigerant or 10 percent of full charge, whichever is less.
EPA clarifies that it intends indirect ALD systems to use multiple
parameters in order to make determinations of refrigerant loss. EPA
agrees that a single parameter being measured by an indirect ALD system
may not be sufficient to accurately detect leaks and may be subject to
external forces that may result in a false alarm or no alarm at all.
Thus, the Agency is clarifying that at least two measurements be used
by an indirect ALD system to determine if an appliance has leaked above
the alarm threshold. Some measurements include but are not limited to
temperature, pressure, and flow rate. This clarification of indirect
ALD systems using multiple parameters to accurately determine the
presence and severity of a leak above the alarm threshold should ease
commenters' concerns on the viability of indirect ALD systems.
EPA disagrees with one commenter's assertion that indirect ALD
systems are not an alternative to direct ALD systems. The Agency agrees
that indirect ALD can be used in tandem with direct ALD for additional
benefits. However, EPA finds any indirect ALD system that meets the
standards outlined in 40 CFR 84.108(g) as acceptable to use because the
indirect ALD systems are capable of alerting owners or operators of
leaks just as direct systems can. The Agency disagrees with the framing
of the commenters statement that indirect ALD systems are not able to
comply with ASHRAE standards for personnel safety. In the context of
this final rule, the ALD requirements are designed to alert owners or
operators of a leak earlier so that repairs of leaks above the
applicable threshold can be made faster and thus, minimize the release
of refrigerants from refrigerant-containing appliances. The Agency did
not propose and is not finalizing that ALD be used to ensure technician
safety. As previously discussed in the preamble of this section, EPA is
aware of ASHRAE safety standards for A2L refrigerants and UL Standard
60335 2-40 requirements for the use of leak detectors for certain
appliances.
Additionally, EPA finds that there are strengths and weaknesses of
both leak detection technologies. For example, direct ALD can
accurately detect the location of leaks if positioned well on or near
an appliance; however, direct ALD cannot function well outdoors where
ambient conditions can diminish the presence of refrigerant. Indirect
ALD can monitor an entire appliance, including portions of an appliance
that may be located behind walls or outdoors, and use metrics to
determine whether a leak has occurred. As the commenter stated, one
issue with indirect ALD is its inability to definitively detect the
precise location of a leak. EPA is not prescribing which ALD system
owners or operators must use; instead, the Agency is requiring the use
of an ALD system that meets the standards of this rulemaking and detect
leaks early to minimize the release of refrigerants from equipment.
Further, EPA understands that one type of ALD may suit the needs of an
owner or operator better than the other. Allowing flexible options for
ALD will facilitate compliance with this provision and ensure there is
an adequate supply of ALD systems for owners or operators. If EPA were
to limit the use of ALD to one system over the other, owners or
operators may have difficulty installing ALD systems within the
timeframe required by the final rule.
Comment: The Agency received a few comments concerning the alarm
threshold for indirect ALD systems. One commenter stated that indirect
ALD systems have the capability to detect a leak with as little as one
percent of full charge lost when data is reliable and available.
However, to minimize the risk of false alarms at lower percentages
(e.g., <= five percent), the commenter recommends that EPA finalize the
proposed alarm criteria for indirect ALD systems. The commenter stated
that the proposed alarm criteria would allow their manufactured systems
to send leak alarm notifications with high confidence and reduce the
risk of false positives, which degrade customer confidence in leak
alarm notifications.
Alternatively, one commenter stated that they were unaware of any
standard or industry accepted procedure to verify the indirect ALD
system is operating in a manner to detect 50 pounds or 10 percent of
full charge. The commenter asserted that it was unclear how this
requirement would be consistently applied and enforced, and that the
Agency should better define the process of verification. Another
commenter asserted that the alarm criteria for indirect systems are not
equivalent to the alarm criteria for direct systems. The commenter
claimed that indirect systems are not equipped to quantify the severity
of the leak or pinpoint its precise location because indirect systems
rely on data analytics and have not been developed for the purpose of
retaining refrigerant in an appliance.
Response: EPA is finalizing the alarm criteria for indirect ALD
systems as proposed. EPA acknowledges comments in support of the
provision. EPA disagrees that there are no standards or industry
accepted procedures to ensure indirect ALD systems are properly
verified and calibrated to perform the function of leak detection. The
alarm criteria for indirect ALD systems have been utilized by CARB
since 2011. The alarm criteria under CARB's refrigerant management
program for both direct and indirect ALD systems were based on ANSI/
ASHRAE Standard 15-2001, Safety Standards for Refrigeration Systems.
These alarm criteria were adopted by EPA in the 2016 Section 608 Rule
for owners or operators who sought to implement ALD as a compliance
option in lieu of quarterly or annual leak inspections. For these
reasons, EPA finds it appropriate to adopt the same alarm criteria in
this final rule. Additionally, the Agency clarifies that an owner or
operator would need to follow the manufacturer's specifications for an
indirect ALD system to ensure it is properly calibrated to the
appliance and that it is monitoring and performing the function of
alerting an owner or operator when a leak is detected above the lesser
of 50 pounds or 10 percent of full charge. The final rule requires that
indirect ALD systems be audited and calibrated annually and requires
records
[[Page 82755]]
to be kept detailing these annual audits and calibrations. Regarding
the commenter's question to how this provision would be enforced, EPA
notes that the recordkeeping for ALD systems in 40 CFR 84.108(i) would
be used to determine if an owner or operator has been non-compliant and
whether further enforcement action is necessary.
EPA also disagrees that the alarm criteria for indirect and direct
ALD systems are not equivalent because indirect and direct ALD systems
are using different parameters to determine the existence of a leak;
thus, the alarm criteria for both technologies will never be one-to-
one. EPA clarifies that direct ALD cannot determine the severity of a
leak based on ppm detection alone either, as the detection of ppm vapor
of a refrigerant is not exactly correlative with how much refrigerant
has leaked from an appliance. The only way to confirm the severity of a
leak is via a leak rate calculation, which is required within 30 days
of an alarm for both direct and indirect systems. As discussed
previously, direct and indirect ALD systems have strengths and
weaknesses; however, indirect ALD systems, inability to determine the
exact location of a leak does not preclude the technology from serving
the purpose of alerting an owner or operator of a leak. Additionally,
in the context of the appliances that are subject to the ALD
requirements in the final rule (i.e., IPR and commercial appliances
with a charge size of 1,500 pounds or more), 50 pounds of refrigerant
loss is a relatively small proportion of the appliance's full charge.
Direct ALD systems that alarm at 100 ppm of detected refrigerant
concentrations may have leaked a comparable amount of refrigerant
before alerting an owner or operator.
2. Recordkeeping and Reporting
EPA is finalizing, as proposed, specific reporting and
recordkeeping requirements for ALD systems in this action. Where ALD
systems are required, EPA is requiring that owners or operators
maintain records regarding the annual calibration or audit of the
system. EPA is also requiring that records be maintained each time an
ALD system triggers an alert, whether that be based on the applicable
ppm threshold for a direct ALD system or the indicated loss of
refrigerant measured in an indirect ALD system. When an ALD system
alerts the owner or operator of a leak, EPA is requiring that the owner
or operator maintain a record of the date of the ALD system alert and
the location of the leak. EPA is also establishing recordkeeping
requirements in the case where an owner or operator chooses to use an
ALD system, where not required, as a compliance option in lieu of
periodic inspections for an appliance that has exceeded an applicable
leak rate. The recordkeeping requirements related to when a leak rate
calculation must be conducted are described in section IV.C.3.g of this
action. As discussed in section II.B, EPA's authority to require
recordkeeping and reporting under the AIM Act is also supported by
section 114 of the CAA, which applies to the AIM Act and rules
promulgated under it as provided in subsection (k)(1)(C) of the AIM
Act.
EPA is requiring that these records related to ALD systems, where
required, be maintained for three years. Where ALD systems are being
voluntarily used (i.e., appliances with a full charge below 1,500
pounds or using a substitute for HFCs with a GWP of 53 or below), no
recordkeeping is required. However, if an appliance using an ALD system
is found to be leaking above the applicable leak rate and the owner or
operator chooses to use the ALD system in lieu of periodic inspections,
they are required to follow all requirements associated with this
compliance option, including annual audits or calibration and all
necessary recordkeeping requirements. The recordkeeping requirements in
this action do not change any recordkeeping requirements where an owner
or operator chooses to use an ALD system per 40 CFR 82.157(g)(4) for
appliances containing ODS refrigerants.
Comment: EPA received a few comments on the reporting and
recordkeeping requirements for its ALD provisions. One commenter
supported the reduced recordkeeping requirements for facilities that
opt into ALD in lieu of quarterly or annual inspections. The same
commenter was supportive of recordkeeping requirements that demonstrate
facility owners are performing the necessary calibration and
maintenance of ALD systems. However, the commenter stated that the
prescriptive installation and calibration may work against manufacturer
specifications, which should be followed to achieve optimal results.
Another commenter supported EPA's proposed approach of not requiring
ALD system alerts to be reported to the Agency and would oppose
including any such reporting requirement in the final rule. If the
Agency has the need to review these records, the commenter said they
can always be requested from a facility rather than imposing an
additional administrative burden on owners or operators and on EPA by
requiring a report of every ALD alert. Lastly, one commenter reinforced
the need for digital recordkeeping and recommended that digital records
directly tied to the detection system be encouraged where possible.
Response: EPA is finalizing recordkeeping requirements for ALD
systems as proposed. EPA acknowledges one commenter's request that ALD
alerts not be reported to the Agency. Records of ALD alerts are
required, but EPA did not propose and is not finalizing that ALD alarms
be reported to the Agency. The Agency agrees with one commenter's
emphasis on digital recordkeeping and agrees that, where appropriate,
digital recordkeeping is appropriate for filing the information
required under this provision. EPA clarifies that recordkeeping in a
paper format is still acceptable as long as records are kept in the
manner defined in 40 CFR 84.108(i). The Agency disagrees with one
commenter's claim that annual calibration of ALD systems may go against
manufacturers specifications. EPA is unaware of any manufacturer
specifications that would make annual calibration and verification that
an ALD system is functioning properly impossible or non-optimal. While
owners or operators should rely on manufacturer specifications as it
relates to the installation and operation of equipment, the Agency does
not view the annual calibration and audits of ALD systems as out of
sync with manufacturer specifications. ALD installations and their
subsequent use should largely align with manufacturer specifications,
but owners or operators must ensure that all leak-prone components are
monitored by an ALD system.
E. How is EPA establishing requirements for recovered and reclaimed
HFCs?
EPA is finalizing requirements for recovered and reclaimed HFCs
with modifications after consideration of the comments and information
received on the proposed rule. EPA is requiring reclaimed refrigerants
that contain HFCs to contain no more than 15 percent, by weight, virgin
HFCs. The reclamation standard will apply as of January 1, 2026, and
the provision includes certain recordkeeping, labeling, and
certification requirements. EPA is also finalizing requirements for the
servicing and/or repair of refrigerant-containing equipment to be done
with reclaimed HFCs in the supermarket systems, refrigerated transport,
and automatic commercial ice makers subsectors. EPA also proposed to
require reclaimed HFCs in the servicing and/or repair of refrigerant-
containing equipment in the stand-alone refrigeration subsector, but is
not finalizing that requirement in this
[[Page 82756]]
action. EPA is delaying the compliance date for these finalized
requirements by one year from January 1, 2028, to January 1, 2029. EPA
is also establishing a discrete reporting requirement, as described in
section IV.E.2. Lastly, at this time, EPA is not finalizing
requirements for the initial fill of refrigerant-containing equipment
to be done with reclaimed HFCs.
As described in the proposed rule, subsection (h) provides EPA
authority to, where appropriate, establish regulations to control such
practices, processes, or activities that are intended to increase
reclamation of HFCs, as well as substitutes for HFCs, that are used as
refrigerants. EPA understands this delegation of authority to give the
Agency flexibility to promulgate regulations that could include those
that are designed to increase market demand for reclaimed HFCs with a
goal of increasing the amount of HFCs that are reclaimed, which would
further serve the purpose of maximizing the reclamation of regulated
substances. Accordingly, EPA is establishing requirements for what
constitutes reclaimed HFCs and for the servicing and/or repair of
certain refrigerant-containing equipment to be done with reclaimed
HFCs. In this rulemaking, EPA is not establishing requirements for
reclaimed HFC substitutes; however, the Agency interprets the authority
under subsection (h) to include establishing such regulations.
Consistent with the proposal, EPA determined it would be prudent to
focus the requirements finalized in this action on HFCs, given that the
HFC consumption and production phasedown will create scarcity for
virgin HFCs and such demand can partly be addressed by increased use of
reclaimed HFCs where possible.
EPA published a Notice of Data Availability (NODA) on October 17,
2022 (87 FR 62843), to alert stakeholders of information regarding the
U.S. HFC reclamation market, available through a draft report, Analysis
of the U.S. Hydrofluorocarbon Reclamation Market: Stakeholders,
Drivers, and Practices.\84\ EPA solicited stakeholder feedback and held
a public stakeholder meeting shortly after the NODA was published on
November 9, 2022.\85\ EPA received comments \86\ from various entities
in response to the published NODA and from the stakeholder meeting,
including comments from reclaimers, industry organizations,
environmental non-government organizations, OEMs, and a private
citizen. EPA held an additional public stakeholder meeting on March 16,
2023, and a webinar through EPA's GreenChill Partnership Program on
April 12, 2023, and heard many similar comments to those received on
the NODA.87 88 Interested parties may view the draft report,
the materials for the public meetings, and the comments the Agency
received in response to the NODA in the docket for this action.
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\84\ Draft Report--Analysis of the U.S. Hydrofluorocarbon
Reclamation Market: Stakeholders, Drivers, and Practices, October
2022. Available at: https://www.epa.gov/system/files/documents/2022-10/Draft_HFC-Reclamation-Report_10-13-22%20sxf%20v3.pdf.
\85\ Stakeholder meeting for input on an upcoming regulatory
action under subsection (h) of the AIM Act, November 2022. Available
at: https://www.epa.gov/system/files/documents/2022-11/AIM%20Act%20Stakeholder%20Meeting_HFC%20Management_11-9-2022.pdf.
\86\ Comments submitted to response of NODA published on October
17, 2022 (87 FR 62843) are available in the docket for this
rulemaking at https://www.regulations.gov.
\87\ Stakeholder meeting on HFC reclamation under the AIM Act,
March 2023. Available at: https://www.epa.gov/system/files/documents/2023-04/HFC%20Management_Reclaimer%20Stakeholder%20Mtg_Final%203-15-23.pdf.
\88\ Webinar--Subsection (h) Under the American Innovation and
Manufacturing Act, April 2023. Available at: https://www.epa.gov/greenchill/webinar-subsection-h-under-american-innovation-and-manufacturing-act.
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EPA is providing a final version of the report, titled Analysis of
the U.S. Hydrofluorocarbon Reclamation Market: Stakeholders, Drivers,
and Practices, that is also available in the docket of this action. EPA
has incorporated information provided from commenters to this
rulemaking (as further discussed and responded to in sections IV.E.1
and IV.E.2), including oral comments provided at the public hearing on
November 2, 2023.
1. Reclamation Standard
EPA is finalizing, as proposed, that HFC refrigerant sold as
reclaimed can contain no more than 15 percent virgin HFC refrigerant,
by weight. EPA is clarifying in this final rule and in the regulatory
text at 40 CFR 84.112(a) that this requirement begins on January 1,
2026, as intended to match the compliance date of the relevant labeling
and recordkeeping requirements described in this section. This applies
only to the HFC portion of reclaimed refrigerants, in the case of
refrigerant blends with HFCs and a non-HFC component (e.g., an HFC/HFO
blend). EPA is also prohibiting, as proposed, the sale, distribution,
or transfer to a new owner, or the offer for sale, distribution, or
transfer to a new owner, of any regulated substance used as a
refrigerant in stationary refrigerant-containing equipment (i.e., not
an MVAC or an MVAC-like appliance) \89\ consisting in whole or in part
of recovered regulated substances. This prohibition does not apply
where the recovered regulated substances are reclaimed by an EPA-
certified reclaimer (as described in 40 CFR 82.164) and have been
reclaimed consistent with the definition of reclaim in 40 CFR 84.3
(including to the required purity standard and with the appropriate
verification),\90\ or if the recovered regulated substance is being
sold, distributed, or transferred to a new owner, or offered for sale,
distribution, or transfer to a new owner solely for the purposes of
being reclaimed or destroyed. Further, for clarity, EPA notes that
recovered refrigerant that is used by the same owner is regulated under
40 CFR 82.154(d). This rulemaking does not alter those requirements and
does not prevent an equipment owner or operator from using refrigerant
recovered from a piece of equipment they own to be used in that same
piece of equipment or another piece of equipment they own.
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\89\ EPA further discusses MVAC servicing and recovered and
reprocessed HFC refrigerants in section IV.I.
\90\ EPA has made a few modifications to the regulatory text as
finalized at section 84.104(a) to ensure consistency with the
definition of reclaim in 40 CFR 84.3, in accordance with the intent
for this provision.
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EPA is also establishing labeling and recordkeeping requirements,
as proposed, and prohibiting the sale, identification, or reporting of
refrigerant as being reclaimed if the HFC component of the resulting
refrigerant contains more than 15 percent, by weight, of virgin HFC.
EPA proposed and is requiring that certified reclaimers affix this
label to reclaimed HFCs being sold or distributed or offered for sale
or distribution beginning January 1, 2026. The label is required to
include the specifications as described in the regulatory text at 40
CFR 84.112(d). Additionally, EPA proposed and is requiring that
certified reclaimers create and maintain a record related to the
reclaimed HFCs filled in containers. EPA is requiring such records be
generated beginning January 1, 2026, be maintained by reclaimers for
three years, and include the following information:
The name, address, contact person, email address, and
phone number of the certified reclaimer;
The date the container was filled with reclaimed HFC(s);
The amount and name of the HFC(s) in the container;
[[Page 82757]]
Certification that the contents of the container are from
a batch where the amount of virgin HFCs does not exceed 15 percent, by
weight, of the total HFCs;
The unique serial number of the container(s) filled from
the batch;
Identification of the batch of reclaimed HFCs used to fill
the container(s); and
The percentage, by weight, of virgin HFC(s) in the batch
used to fill the container(s).
Consistent with the proposal, EPA is not requiring that each
individual container or cylinder be rationed out to meet the allowable
limit of 15 percent, by weight, of virgin HFCs. Rather, EPA is
requiring, at the batch level, that the reclaimed HFCs not exceed 15
percent, by weight, of virgin HFCs. As discussed in section IV.A.2, EPA
proposed a definition of ``virgin regulated substances'' that would
have included the heels removed from containers. However, EPA is
finalizing a modification of that definition to mean ``any regulated
substance that has not had any bona fide use in equipment'' but
omitting the portion of the proposed definition that would have
included heels. As a part of implementing this provision, EPA is also
establishing that HFCs that are removed from the heels of containers do
not contribute towards the limit of 15 percent, by weight, of virgin
HFCs. EPA recognizes the value in the removed heels and, while the
heels may be regulated substances that have not had bona fide use in
refrigerant-containing equipment, EPA understands from comments on the
proposed rule that some reclaimers may still reprocess removed heels to
ensure the material will meet the applicable purity standards. EPA
understands that, in the distribution chain, heels may be recovered
into a common recovery cylinder along with refrigerant that has been
recovered after a bona fide use in equipment.
EPA is finalizing these requirements to implement the statutory
requirement in subsection (h)(2)(B) of the AIM Act, which provides that
any regulated substance used as a refrigerant that is recovered shall
be reclaimed before being sold or transferred to a new owner, except
where the recovered regulated substance is sold or transferred to a new
owner solely for the purposes of being reclaimed or destroyed. This
will be particularly relevant to the refrigerant-containing equipment
for which EPA is establishing requirements the servicing and/or repair
be done with reclaimed HFCs, as described in section IV.E.2. These
provisions are also intended to support the implementation of the
statutory provision for stationary refrigerant-containing equipment in
the context of other requirements established in this rulemaking,
including by outlining more specific requirements for the reclamation
that would need to occur before sale or any of the other listed
activities for such regulated substances, as well as incorporating the
statutory exception for situations where such recovered regulated
substances are sold or transferred solely for the purposes of being
reclaimed or destroyed. EPA further discusses its approach for
recovered regulated substances used as refrigerants in MVAC equipment
in section IV.I.
EPA is finalizing a standard for the amount of virgin HFC
refrigerant that can be included in any reclaimed refrigerant
containing HFCs to support consistent implementation of the
requirements for the servicing and/or repair of certain equipment with
reclaimed HFCs in addition to establishing consistency on the amount of
virgin HFCs in reclaimed refrigerant when that refrigerant is sold,
identified, or reported as reclaimed for use in the installation,
servicing, and/or repair of refrigerant-containing equipment. These
requirements are being established as part of implementing subsection
(h)(1) of the AIM Act, as these provisions control practices,
processes, or activities regarding the installation, servicing, or
repair of equipment and involve a regulated substance or the reclaiming
of a regulated substance used as a refrigerant. As the HFC phasedown
progresses, the overall quantity of virgin HFCs available, including to
facilitate reclamation through blending or rebalancing, will decrease.
In addition, the Agency considers that limiting the extent to which the
purity standard for reclamation is achieved through combining with
virgin refrigerant (besides what the Agency understands to be the
necessary rebalancing, particularly of certain blends) in this
rulemaking supports the purpose of maximizing reclamation, and
additionally bolsters the available supply of reclaimed HFCs in the
market.
Comment: Several commenters supported the 15 percent limit, by
weight, on virgin refrigerant in reclaimed material. One commenter
deferred to EPA regarding the amount of virgin material necessary to
meet purity standards. Another commenter stated that it would be
counterproductive to allow the use of more than 15 percent of virgin
material given the proposed rule's rationale to boost the U.S.
reclamation industry. Another commenter stated that the 15 percent
threshold allows sufficient flexibility to reclaim refrigerants and
further stated that higher virgin-to-reclaimed content ratios could
constitute ``greenwashing'' thereby deceiving consumers on the
environmental benefit of using a reclaimed refrigerant. One commenter,
although generally supportive of the 15 percent virgin content limit,
questioned whether the 15 percent limit applied to single-component
refrigerants where blending is not necessary. Likewise, another
commenter expressed support for the proposed limit of no more than 15
percent newly produced HFCs in multi-component refrigerant blends to
qualify as a reclaimed blend, but also recommended that EPA require
single component refrigerants to use 100 percent reclaimed material.
One commenter supported the proposed 15 percent virgin HFC limit,
claiming it is reasonable and ``ensures the continued existence of
smaller reclaimers who must sometimes bulk up reclaimed gases to meet
AHRI 700 purity standards.'' The commenter further recommended ramping
down the acceptable proportion of virgin gas over time to incentivize
better reclamation technology.
Several commenters supported a lower limit on the virgin content in
reclaimed refrigerant. One of the commenters suggested the use of a
virgin content limit for reclaimed material but encouraged EPA to
tighten the requirement to send a clear message to the industry to
invest in advanced reclamation technologies. The commenter noted that
the 15 percent limit used by CARB was based on a term-limited program
for a single State, while EPA's proposed use requirements for reclaimed
HFCs will apply nationally and are not term limited; thus, the
requirements would send clear signals for investment in advanced
reclamation technology. Another commenter similarly supported a maximum
HFC virgin content in reclaimed HFCs, noting the importance of
preventing large quantities of virgin HFCs from being blended with
smaller reclaimed HFC quantities and considered reclaimed (which would
not create a sustainable supply of reclaimed materials as the supply of
virgin HFCs continues to decrease, and would disincentivize investment
in fractional distillation capacity), and encouraged EPA to further
tighten this requirement because the 15 percent limit was established
in the California context. The commenter further stated that a stronger
limit may be feasible on a nationwide basis while also supporting the
smaller reclaimers in continuing to
[[Page 82758]]
expand and develop their capacity for advanced reclamation of HFCs.
Another commenter expressed concern that setting an allowance (e.g., 15
percent) for inclusion of newly produced refrigerant to be incorporated
into reclaimed refrigerant is not a credible structure and will result
in greenwashing claims, arguing that only recovered refrigerant should
be considered reclaimed. The commenter further claimed that setting
such a limit for newly produced refrigerant could thwart the goal to
maximize reclamation and narrow uses away from clever solutions like a
``service gas'' with an increasing percentage of reclaimed refrigerant
as more reclaimed refrigerant becomes available over time.
Another commenter stated that they supported the definition of
reclaimed refrigerant as containing no more than 15 percent virgin
material but would also support a lower or much lower limit because
only a few larger reclaimers who were also importers, blenders, and
distributors received substantial HFC allowances. The commenter further
stated that many reclaimers received small or no allowances, and that
allowances provided to reclaimers are being reduced as reclamation
expectations are being raised. The commenter concluded that that most
reclaimers would not be able to access 15 percent virgin material for a
blend even if they wanted or needed to. The commenter further noted
they did not support the concept that reclaimed refrigerant could be
any percentage and treated as a blended component in a larger lot of
refrigerants, arguing that this concept is not reflective of how
reclaimed refrigerant is produced today and opens the door to non-
reclaimers to find creative solutions to dilute the value of reclaimed
refrigerant.
Response: EPA acknowledges these commenters' support and requests
for potentially tightening the limit for virgin HFCs in reclaimed HFC
refrigerant. The Agency understands that a portion of virgin HFCs is
often necessary for rebalancing particular refrigerant multi-component
blends, and, in contrast, EPA understands that single-component HFCs
that are reclaimed would not require additional high-purity (e.g.,
virgin) HFCs for the purposes of rebalancing. EPA also understands that
different reclaimers deploy different practices (e.g., not all
reclaimers use fractional distillation), and may see different needs
for using the maximum allowable percentage of 15 percent, by weight
virgin HFCs. For example, some reclaimers may have capabilities and
technologies to reclaim particular multi-component blends from
difficult-to-separate mixed recovered refrigerants and may not need to
use the full 15 percent limit, by weight, of virgin HFCs. Other
reclaimers may have limited access to these technologies and might
routinely meet the maximum allowable amount of virgin HFCs in reclaimed
HFC refrigerants they process and sell. With these considerations, the
Agency views the 15 percent limit, by weight, on virgin HFCs as
appropriate and disagrees that it is appropriate at this time to
establish a lower limit on virgin HFCs or that reclaimed HFC
refrigerants may only constitute recovered materials. However, the
Agency notes that it may revisit this requirement in the future, for
example by evaluating whether a reclamation standard with a higher or
lower percentage, by weight, for the maximum amount of virgin HFCs is
appropriate at that time.
Further, the Agency does not agree with the need to and is not
establishing different standards for different reclaimers based on
technology used to achieve the required purity standards for reclaimed
refrigerants. EPA is establishing a single reclamation standard to
ensure that reclaimed HFC refrigerants sold or marketed contain a
consistent amount of virgin HFCs (i.e., no more than 15 percent, by
weight). Establishing a varying standard might produce unintended
effects for reclaimed HFC refrigerants placed on the market such that
reclaimed HFCs of varying amounts of virgin content may be valued
differently by purchasers. The reclamation standard of 15 percent
virgin HFCs, by weight, allows for some virgin HFCs to be used to
rebalance HFC blends, if needed. Further, this consistent standard will
also avoid scenarios where HFC refrigerants are sold or marketed as
reclaimed but may consist of only a small amount of recovered and
reclaimed material and the balance being virgin HFCs. Such a case could
lead to confusion for refrigerant purchasers, including those in
subsectors subject to the requirements for the servicing and/or repair
of refrigerant-containing equipment with reclaimed HFCs. This final
rule, as described in this section, also includes provisions for
recordkeeping and labeling based on this standard, which are intended
to support identification of those HFC refrigerants that meet the
reclamation standard, including by those purchasing reclaimed HFC
refrigerant, by those servicing and/or repairing refrigerant-containing
equipment, and by EPA. Moreover, for these reasons, EPA concludes that
establishing a consistent limit of 15 percent, by weight, of virgin
HFCs in reclaimed HFC refrigerant is appropriate, in consideration of
the purpose identified in subsection (h)(1) the AIM Act to maximize
reclamation.
EPA acknowledges that the program established by CARB was term-
limited, with applicability only for a single State. The Agency agrees
that applying a reclamation standard on a broader scope (i.e.,
nationally) may provide signals to spur additional reclamation and
advancements in technology. However, unlike the CARB program, EPA is
not applying the reclamation standard to only a single refrigerant
blend in this rulemaking, noting that the standard applies to the HFC
portion of refrigerants that contain HFCs (whether neat or in a blend),
nor is the Agency establishing a term-limited program for the
reclamation standard. As noted earlier in this response, the
reclamation standard established in this rule is based on consideration
of the purpose identified in subsection (h)(1) to maximize reclamation.
Thus, the Agency is not tightening the standard, at this time, for
reasons described earlier in this response and since the reclamation
standard in this final rule applies more broadly than that of the CARB
program.
EPA acknowledges concerns related to ``greenwashing'' and
improperly claiming benefits associated with reclaimed refrigerants.
The Agency's view is that the established limit of 15 percent, by
weight, for virgin HFCs in reclaimed HFC refrigerants is appropriate at
this time, as explained earlier in this response. EPA considers the
required label and other requirements established in this rule as one
means of countering false claims of benefits related to refrigerants
that contain a higher proportion than permitted of virgin HFCs. To the
extent that one of the commenters claims that allowing any virgin HFCs
in reclaimed refrigerant would lead to greenwashing claims, EPA
disagrees. The requirements established in this rule provided clarity
about the extent to which reclaimed refrigerant can contain virgin HFCs
and are designed to ensure that all reclaimed refrigerant meets the
same minimum standards. The Agency will monitor the marketing of
refrigerants and may consider revising or adding to these requirements
in the future if warranted.
EPA acknowledges that some, but not all, reclaimers are allowance
holders. EPA does not view a lack of allowances as a barrier to
reclamation. To the extent that reclaimers use high-purity refrigerants
in their reclamation process
[[Page 82759]]
(e.g., for rebalancing blends), even if they do not have allowances,
they could purchase virgin HFCs in the domestic market or other high
purity (e.g., previously reclaimed) refrigerant, which may or may not
go through some degree of reprocessing, until the final product meets
the purity specifications to be considered reclaimed. Further,
reclaimers may obtain allowances through transfers from existing
allowance holders, and the transferred allowances can then be used to
import HFCs. EPA is unclear as to how non-reclaimers would dilute the
reclamation market based on the comment; however, EPA responds to
concerns with the potential for a non-reclaimer to market refrigerant
as reclaimed by noting that the requirements finalized in this action,
including the labeling and recordkeeping requirements, apply to any
refrigerant that is sold as reclaimed.
Comment: One commenter supported the 15 percent virgin allowance
for reclamation but sought clarification on the calculation of this
value. The commenter was unclear how the calculation for reclaimed
refrigerant would be performed, especially when the reclaimed material
includes non-HFC refrigerants. The commenter was uncertain whether the
non-HFC substances would be included in the weight of the reclaimed
refrigerant batch and recommended not including non-HFC components
towards the minimum 85 percent by weight of reclaimed HFCs. The
commenter additionally suggested a tolerance limit for the measurement
or calculation of the 15 percent or 85 percent.
Response: Consistent with the proposal, EPA is clarifying that in
the case of reclamation of a refrigerant blend that contains an HFC and
a non-HFC component (e.g., an HFO) that is being reclaimed, the 15
percent limit for virgin materials only applies to the HFC component of
the blend. When calculating the amount of virgin HFCs that will be
allowed, the 15 percent limit, by weight, applies to the weight of the
HFC component(s), not the total weight of the reclaimed
refrigerant.\91\ EPA further clarifies that the 15 percent limit on
virgin HFCs does not apply per HFC where a reclaimed refrigerant blend
contains more than one HFC component. Rather, the 15 percent limit on
virgin HFCs should be calculated as 15 percent of the weight of the
total HFC components in the blend.\92\ EPA notes that subsection (h)(1)
of the AIM Act provides authority to promulgate regulations to control,
where appropriate, practices, processes, or activities related to the
servicing, repair, disposal, or installation of equipment that involves
the reclaiming of a substitute for a regulated substance used as a
refrigerant. EPA interprets this provision to provide it authority that
includes establishing requirements for how practices, processes, or
activities related to the servicing, repair, disposal, or installation
of equipment are conducted, including requiring those practices,
processes, or activities be done with reclaimed HFCs or reclaimed HFC
substitutes. However, at this time, the Agency is not establishing a
requirement for the non-HFC component of a blend to be reclaimed and
thus is not establishing a standard limiting the amount of virgin
material for reclaimed substitutes for HFCs. While EPA acknowledges
that there is some degree of random and systematic error associated
with measurement devices, EPA is not implementing a tolerance range for
this provision at this time and does not agree that one is necessary.
It is EPA's view that the institution of a 15 percent limit, by weight,
on virgin HFCs allows reclaimers a range of compliance options, as they
can use any amount of virgin HFCs between 0 and 15 percent, by weight,
and still meet the standard. Implementing a tolerance range in addition
to the range that is already inherent in the standard would lessen the
standard's effectiveness in serving the purposes identified in
subsection (h), including maximizing reclamation.
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\91\ As an illustrative example, if a refrigerant blend is
composed of 50 percent HFC and 50 percent non-HFC and one is seeking
to reclaim 100 pounds of this refrigerant, the 15 percent limit on
virgin HFCs would apply only to the weight of the HFC portion, or
7.5 pounds (i.e., 15 percent of 50 pounds).
\92\ As an additional illustrative example, suppose 100 pounds
of a refrigerant to be reclaimed contains 20 percent of HFC A, 30
percent of HFC B, and 50 percent of a non-HFC component. The 15
percent limit on virgin HFCs would apply only to the weight of the
sum of the HFC components. In this example, the total weight of HFCs
is 50 pounds and the allowable weight of virgin HFCs would be 7.5
pounds (i.e., 15 percent of 50 pounds). The limit on virgin HFCs may
be made up of a combination of weights of virgin HFC A and HFC B
that total 7.5 pounds (e.g., 7.5 pounds of virgin HFC A and zero
pounds of virgin HFC B; 3.5 pounds of virgin HFC A and 4 pounds of
virgin HFC B; etc.).
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Comment: One commenter supported the 15 percent, by weight, virgin
allowance for reclamation but proposed basing the reclaimed content on
CO2 equivalency values to allow the market under the
Allowances and Technology Transitions programs to better move to low-
GWP refrigerants in a cost-effective and environmentally positive
manner. The commenter recommended allowing the destruction or
repurposing of one refrigerant to be credited with a carbon allowance
and to allow an equivalent quantity of another refrigerant to be placed
on the market as reclaimed, minus a 10 percent offset for a net
reduction in CO2 equivalents, to create a new market outlet
for high-GWP substances and ensure that leaks are minimized. The
commenter provided examples where a smaller mass of high-GWP substances
could be reclaimed and a larger mass of low-GWP substances placed on
the market as reclaimed material by relying on the substances'
CO2 equivalents.
The commenter stated that HFC-32 and HFC-152a use in blends is
vital to the survivability of the industry as it phases down HFCs under
the Allocation rulemakings and goes through the transition required by
the 2023 Technology Transitions Rule. The commenter stated that if EPA
adopts a strict weight (mass) basis, industry will face an extreme
burden sourcing HFC-32 and HFC-152a. The commenter noted that all
formulations of viable heat pump solutions are based on some content of
HFC-32, and that the vast majority of HFC-32 in the current marketplace
is in the form of R-410A. The commenter stated that it is correct to
assume that material will be used to service that market and HFC-32
will not become available for use in R-454B service or in commercial
refrigeration service/initial fill. Further, the commenter mentioned
that the fact that HFC-32 and HFC-125 make an azeotrope at a
composition not too far from R-410A makes the separation of HFC-32 from
HFC-125 non-trivial to recover the HFC-32 via distillation. The
commenter stated that the viable solution is to slightly reconstitute
and return ``certified reclaimed material'' to the market for service
of existing equipment aging out of the marketplace.
Response: EPA did not propose and is not establishing an offset or
GWP-based program as the commenter suggests. The Agency recognizes that
the 2023 Technology Transitions Rule uses GWP thresholds and that the
Agency issues allowances based on exchange values. However, for the
purposes of establishing an ER&R program, and more specifically for
establishing provisions for the upper limit on virgin HFCs used in
reclaimed HFCs, the Agency does not agree with the asserted need for an
offset or GWP-based approach. In establishing this and other
requirements related to reclaimed refrigerants in this rulemaking, the
Agency seeks to require actions that would help meet the purposes
described in subsection (h)(1) of the AIM Act, including maximizing the
reclamation of HFCs. Thus, the destruction or
[[Page 82760]]
repurposing without reclaiming of any HFCs, including high-GWP HFCs
that can be properly reclaimed, would be counter to this goal. Further,
other provisions of the AIM Act prescribe a phasedown, and not a
phaseout for regulated substances. Even after the phasedown reaches its
final step, virgin HFCs will continue to be produced and consumed. Any
destruction-based program to provide offsets or credits would need to
fully assess and address additionality.\93\ While such programs and
considerations are beyond the scope of this rulemaking, EPA is
uncertain whether additionality could be addressed in these types of
programs. The Agency also does not agree with a GWP-weighting approach
for virgin HFCs allowed in reclaimed HFCs. The Agency proposed and is
finalizing a requirement that is based on percentage, by weight. The
Agency understands that for servicing equipment, it is important to
maintain adequate supply of the same refrigerants used in that
equipment when it was initially charged. So, unlike the 2023 Technology
Transitions Rule facilitating transition to next-generation
technologies through sector-based restrictions on HFCs, this rule
concerns the goals of maximizing reclamation and minimizing releases
from equipment. Availability of refrigerants of all types, increasingly
from reclamation, is central to meeting the goals of this rule, and an
approach that applies to all HFCs would continue to promote
reclamation. An approach that is GWP-based may have a counter effect of
promoting only reclamation of certain higher-GWP HFC refrigerants.
Further, such a GWP-weighted approach would likely require additional
compliance measures such as labeling or recordkeeping and reporting to
ensure a specified overall CO2 equivalency is met.
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\93\ Additionality is the criterion used to demonstrate that the
activity or project generating offsets or credits would not have
happened anyway (e.g., if it were required by regulation).
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The Agency recognizes the use of HFC-32 and HFC-152a neat and in
blends. The Agency further understands that as the market evolves, the
sourcing of HFCs to be reclaimed may require separating HFCs and then
using those separated HFCs in new blends. EPA is aware that a number of
reclaimers have invested in and currently operate advanced reclamation
technologies to effectively reclaim refrigerants, including separating
and reclaiming HFC-32 from R-410A. For additional discussion on supply
of reclaimed HFCs, please refer to comments and responses in section
IV.E.2.
Comment: Another commenter, as part of their suggestion that EPA
replace the reclaim mandates for initial fill and servicing with a
requirement that refrigerant supplied for servicing include a specified
percentage of reclaimed material on a CO2e basis, proposed
that this requirement should be met on a net basis, allowing for
certified reclaimed refrigerant to be blended with virgin refrigerant
in any ratio so long as the final ratio of material placed into the
market in every reporting year meets the ratio as determined by the
Administrator. The commenter asserted that this flexible requirement
would allow a supplier to provide 100 percent virgin R-410A, but 100
percent reclaimed R-404A, HFC-134a, or other refrigerant types, so long
as the net CO2e is met.
Response: The Agency does not agree with the commenters suggestion
to base the 15 percent on an annual basis. The reclamation standard
established in this final rule is such that reclaimed refrigerants are
available for the servicing and/or repair of refrigerant-containing
equipment in certain subsectors, and it is not applied at the supplier
level. Reclaimers must meet the reclamation standard of no more than 15
percent virgin HFCs, by weight, on a batch basis and certify that the
reclaimed refrigerant does not exceed the limit. Basing the reclamation
standard on an annual basis may create scenarios in which materials
exceeding the reclamation standard of no more than 15 percent virgin
HFCs, by weight, is sold or marketed as reclaimed material. This would
be counter effective to the goal of maximizing reclamation and could
potentially put those servicing and/or repairing refrigerant-containing
equipment in the covered subsectors in non-compliance. The Agency
further discusses elsewhere in this section that it is applying the
requirement on a batch basis.
Comment: EPA received many comments that opposed the 15 percent, by
weight, limit for virgin HFCs in reclaimed HFC refrigerants. Two
commenters stated the requirement should be removed. One such commenter
opposed any cap on virgin HFC refrigerants and specifically opposed the
15 percent blanket cap which they stated was arbitrary and capricious.
The commenter claimed that similar provisions at a State level (i.e.,
CARB regulations) were established after industry input for R-410A, EPA
did not solicit detailed technical input before the 15 percent
proposal, and CARB's 15 percent limit cannot be assumed to correlate
for other multicomponent HFC blends. The commenter claimed that the
limit could cause certain equipment to be prematurely obsolete if it
uses HFCs for which the 15 percent limit is unworkable, and that EPA
did not consider technical factors in tandem with the HFC phasedown.
The commenter stated that EPA must demonstrate that the limit is
uniformly technically achievable based on limitations of reclaimers and
across the spectrum of HFC blends currently in the market and will
result in increased reclamation beyond regulatory and market factors
already identified by EPA to meet its mandate under subsection (h). The
commenter claimed that small reclaimers cannot separate mixed or out-
of-ratio refrigerants, resulting in the destruction of many
refrigerants. The commenter stated that greater reclamation could be
realized if small reclaimers could use virgin refrigerant at their
discretion to meet purity standards while not yielding more reclaimed
refrigerant than they received. The commenter disagreed that a virgin
HFC limit was necessary given the decreasing pool of virgin HFC.
Another commenter claimed that the 15 percent virgin material limit
for reclaimed material effectively removed blending as an option for
creating certified refrigerants from mixed HFCs. The commenter stated
that fractional distillation is not realistic for small businesses due
to its cost and time required, and that new technologies to address
mixed HFCs are still nascent. The commenter contended that reclaimers
receive many mixed HFCs and that the 15 percent limit would remove any
benefit of blending.
One commenter stated that the 15 percent, by weight, virgin HFC
requirement would require an unattainable amount of material in 2028.
The commenter provided an example using R-410A, based the consumption
of HFC-32 as provided on EPA's HFC Data Hub \94\ and certain
assumptions, including that consumption corresponds to demand and usage
and the 50% of HFC-32 consumption is used to produce virgin R-410A. The
commenter estimated that only four percent of the total demand for R-
410A could have been met in 2022 based on the 15 percent virgin
requirement. The commenter also stated that, frequently, a small amount
of reclaimed mixed refrigerant is added to virgin refrigerant to blend
out mixed gas, not the other way around. Using a very high reclaim to
virgin ratio as the standard for reclaimed gas will reduce
[[Page 82761]]
reclaimer's ability to process more mixed gas into salable product.
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\94\ HFC Data Hub, available: https://www.epa.gov/climate-hfcs-reduction/hfc-data-hub.
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Response: EPA acknowledges these comments related to the limit on
virgin HFCs in reclaimed HFC refrigerants. The Agency concludes that
such a limit is necessary for helping to achieve the purpose identified
in subsection (h) of the AIM Act to maximize the reclamation of HFCs
because without such a limit, refrigerant could be marketed as
reclaimed even if it contained minimal recovered HFCs. Reclaim and
reclamation are defined in subsection (b)(9) of the AIM Act to mean the
reprocessing of a recovered HFC to a particular purity standard and the
verification of the purity of that HFC using at a minimum a specified
analytical methodology. Establishing a limit on virgin HFCs helps to
ensure that reclaimed HFCs effectively make use of recovered HFCs and
also helps promote more recovery of used HFCs from equipment that can
then be reclaimed. This is an important part of maximizing reclamation
of HFCs because those recovered HFCs are a key component of reclaimed
refrigerants. Accordingly, EPA disagrees with the assertion that
greater reclamation would result from an approach that allows
reclaimers to use as much virgin HFC as they wished in producing
reclaimed HFCs.
EPA also disagrees that a decreasing pool of virgin HFCs would
cause the reclamation standard to be unnecessary. Although the
phasedown mandated by the AIM Act will lead to transition to
alternatives as well as likely increased use of reclaimed HFCs, that is
not equal to fulfilling Congress's direction in subsection (h) of the
AIM Act, namely maximizing the reclamation of HFCs that the
requirements in this final rule are designed to achieve. Further, the
provisions finalized in this rule provide consistency for what is
considered reclaimed HFCs, and the accompanying labeling provisions
provide transparency for those purchasing reclaimed HFCs. For example,
it would not provide assurances to those who service, repair, or
install refrigerant-containing equipment that HFC refrigerants sold or
marketed as reclaimed meet consistent standards, including with respect
to the virgin content. Further, EPA explains in this response how the
reclamation standard supports the purposes under subsection (h),
notably, maximizing the reclamation of HFCs. Reclaimed HFCs currently
are used in equipment and will continue to be a significant source of
HFCs to support equipment that use HFCs, including in particular, the
servicing and/or repair of existing equipment so that these pieces of
equipment can reach their full useful life. However, EPA does not
expect that such use on a voluntary basis would maximize the
reclamation of HFCs, as Congress instructed. For example, EPA's multi-
decade experience with regulations under CAA section 608 where there
are no similar requirements for reclaimed ODS or ODS substitutes
provides insight related to reclamation. Reclamation trends of ODS has
been fairly steady, only driven by market demand, with no requirements
for a limit of virgin material or requirements for servicing or
repairing equipment with reclaimed ODS. In earlier years of reported
HFC reclamation (i.e., 2017-2021), a similar steady trend can be
observed. While there was no statutory direction to maximize
reclamation of ODS under CAA section 608, as there is under
subsection(h) of the AIM Act, the flat trend of ODS reclamation could
represent that increasing trend could have been observed with
additional regulatory drivers. As EPA discusses in other responses in
IV.E.2, reclamation of HFCs has more recently (i.e., in 2022 and 2023)
seen an increasing trend. As noted at the start of this paragraph,
while the phasedown of HFCs under the AIM Act may have an effect on the
increasing trend, notably during years near a phasedown step, EPA has
determined that that alone is not enough to maximize reclamation, as
the Agency was instructed to do by Congress. The provisions in this
rule are necessary to ensure this trend continues and reclamation of
HFCs is maximized. Further, as EPA has noted, the production and
consumption of HFCs are being phased down, not phased out. As such,
there will still likely be demand for HFCs after the phasedown
concludes, and reclaimed HFCs will play in important part of meeting
that demand. Thus, EPA concludes that it is appropriate to establish
reclamation requirements in this rule.
EPA does not agree with the comments asserting that the Agency must
demonstrate that the limit is uniformly technically achievable for
current reclaimers and across the spectrum of HFC blends in the market
and will result in increased reclamation beyond regulatory and market
factors to meet its mandate under subsection (h). From information
provided in comments to the NODA and based on EPA's understanding, HFC
reclamation can be complex and require advanced separation
technologies. EPA understands that reclaimers have access to varying
degrees of these technologies for the reclamation of HFC refrigerants.
Based on information provided to the Agency in comments to the NODA, in
public meetings, and in comments for this rulemaking, EPA is aware that
reclaimers are currently using technologies that can meet the
provisions of this rulemaking. The statutory text of subsection (h)
does not include requirements for uniform technical achievability, and
EPA interprets the references in subsection (h)(1) to maximizing
reclamation to include authority to establish provisions that require
reclaimers to go beyond their current practices to achieve that goal,
when such requirements are otherwise consistent with the direction in
subsection (h)(1). EPA also interprets subsection (h)(1) as authorizing
regulations that help ensure that the reclamation that may be
anticipated based on other regulatory or market factors, such as a
decreasing pool of virgin HFCs, actually occurs and meets a uniform
standard. In EPA's view, such regulations can be part of the overall
effort to maximize reclamation, consistent with subsection (h)(1).
The Agency disagrees with the commenter stating that the
reclamation standard would lead to certain types of equipment becoming
prematurely obsolete. Reclaimed refrigerant is required to meet
applicable purity standards, which must also be verified by specified
analytic methodology. Further, under the Allocation Framework Rule,
virgin refrigerant is required to meet the same purity standards. Thus,
reclaimed refrigerants would serve the same function in refrigerant-
containing equipment as virgin refrigerant. As such, EPA disagrees the
reclamation standard would be unworkable and cause premature
obsolescence for equipment as it relates to using reclaimed
refrigerants meeting the reclamation standard. Related to the
availability of reclaimed refrigerants for the servicing and/or repair
of certain refrigerant-containing equipment, EPA discusses supply and
estimated demand in section IV.E.2. Further, EPA is not finalizing, at
this time, either the proposed requirement for servicing and/or repair
with reclaimed HFCs in a fourth subsector or the proposed requirement
for the initial fill of refrigerant-containing equipment to be done
with reclaimed HFCs (see comment responses in section IV.E.2 for
additional discussion).
EPA also disagrees that the reclamation standard placing a limit on
the amount of virgin HFCs would cause additional destruction by small
reclaimers. While some small reclaimers may choose to destroy recovered
[[Page 82762]]
material they receive, others may identify the value in the recovered
material and send it to a larger reclaimer with more sophisticated
technology to separate the components. EPA understands that this is a
current practice and, ultimately, the fate of the recovered materials
in this scenario may be a business decision by the small reclaimers.
Further, establishing such a standard helps to ensure that
reclaimed HFCs are a consistent product on the market. The Agency
understands that reclaimers have varying types of reclamation
technology; however, the Agency does not agree that reclamation
primarily by blending is an effective method to achieve the purposes
identified in subsection (h) and in particular maximizing reclamation.
As noted by some comments, such a practice can result in refrigerants
that contain relatively small amounts of reclaimed material being sold
or marketed as reclaimed. Moreover, the Agency is not precluding the
practice of blending itself, such that the 15 percent limit, by weight,
of virgin HFCs is not exceeded. Highly pure reclaimed HFCs and up to 15
percent virgin HFCs can be used for such purposes. The definition of
reclaim/reclamation in subsection (b)(9) of the AIM Act states that
reclamation involves the ``reprocessing of a recovered regulated
substance.'' Consistent with this definition, recovered regulated
substances must undergo some degree of reprocessing to be reclaimed,
and the Agency does not view achieving the required purity standards by
solely blending with virgin HFCs to constitute reprocessing the
recovered materials. Thus, blending with virgin HFCs would be a
practice performed together with other measures to reprocess recovered
HFCs to achieve the required purity standards. Furthermore, placing a
limit on the maximum allowable virgin HFCs in reclaimed HFCs ensures a
consistent understanding among the regulated community of what
reclaimed HFCs are.
EPA acknowledges that it referenced the Refrigerant Recovery,
Reclaim, and Reuse Requirements (CARB Program) or R4 Program while
proposing a limit on virgin HFCs in reclaimed HFCs, as well as other
applicable information. As the commenters state, the limit on virgin
HFCs established by CARB for California were developed after
consultation with industry. EPA proposed, requested comment on, and is
finalizing a broader program that was informed, in part, by the
experience in California. EPA recognizes that the R4 Program in
California was more limited in scope to focus on reclaimed R-410A, and
that industry input on the State program was largely focused on this.
The Agency is finalizing the requirement for a limit on virgin HFCs for
all reclaimed refrigerants that contain HFCs. This requirement is being
established to drive and promote reclamation as consistent with the
purpose in subsection (h)(1) of maximizing of reclamation of HFCs. In
response to the comment that EPA did not solicit technical input before
the 15 percent proposal, EPA notes that the Agency solicited comment on
establishing different percentages for a limit on virgin HFCs (e.g., if
a lower percentage could be used). Commenters had the opportunity to
provide technical information during the public comment period for this
rulemaking, many commenters did so, and EPA has considered those
comments in finalizing this requirement.
EPA disagrees with the comment stating that the 15 percent limit
would require an unattainable amount of material in 2028 and disagrees
with the commenter's provided assessment for the estimated amount of
reclaimed R-410A at four percent relative to the commenter's estimated
demand in 2022. EPA understands that the commenter made certain
assumptions for the demand of R-410A based on the consumption of HFC-
32; however, the Agency states that the term ``consumption'' is a
specifically defined term under the AIM Act and the Allocation
Framework Rule that captures production plus imports minus exports.
Thus, the commenter's assumption consumption corresponds to domestic
demand and usage does not appear to account for exports. However, it is
not clear how that might affect the analysis, given the commenter also
acknowledged that HFC-32 may be used in other applications assumed that
demand of R-410A was based on half of the total consumption of HFC-32.
Furthermore, EPA does not find this analysis relevant to the provisions
in this final rule, as the analysis is based on comparing reclamation
totals to estimated demand of R-410A in 2022. EPA is finalizing
requirements for the servicing and/or repair of refrigerant-containing
equipment to be done with reclaimed HFCs in the supermarket systems,
refrigerated transport, and automatic commercial ice makers subsectors
beginning on January 1, 2029. In a comment response in section IV.E.2,
EPA discusses estimated demand of reclaimed HFCs for servicing and/or
repair of refrigerant-containing equipment in these subsectors and
provides additional details in the Economic Impact and Benefits TSD in
the docket of this rulemaking. As noted in that comment response, EPA
anticipates that the supply of reclaimed HFCs will increase in the
coming years and be sufficient to meet the demand associated with the
provisions in this rule. EPA estimates the total demand of R-410A for
servicing and/or repair of refrigerant-containing equipment at
approximately 134,000 pounds (61,000 kg). This is well below the total
R-410A reclaimed in 2022, even when considering the reclamation
standard to limit the amount of virgin HFCs in reclaimed refrigerants
at 15 percent, by weight. As explained in other comment responses in
section IV.E.2, EPA anticipates that recovered or reclaimed R-410A can
be a useful source for reclaimed HFC-32 and HFC-125 (i.e., the
components that make up the blend R-410A).
Comment: Another commenter stated that EPA failed to consider areas
where the proposed regulations duplicate existing regulations or less
burdensome and costly alternatives, claimed that there are less costly
and less burdensome regulatory alternatives for EPA to continue to
implement Congressional directives under the AIM Act, and claimed that
EPA's cited objectives in the proposed rule have already been achieved
by an aggressive HFC phasedown schedule. The commenter stated that EPA
estimates the overall compliance costs of the proposed rule to be well
in excess of $3 billion, and stated that under the Unfunded Mandates
Reform Act (UMRA), before promulgating any rule that may result in
expenditures, in the aggregate, of $100 million or more, an agency must
``identify and consider a reasonable number of regulatory alternatives
and from those alternatives select the least costly, most cost-
effective or least burdensome alternative that achieves the objectives
of the rule.'' The commenter further asserted that EPA has not shown
that it considered the current market dynamics, let alone any less
burdensome and less costly alternatives, before proposing onerous new
requirements applicable to reclaimers, and claimed that EPA's proposed
rule goes too far and is not tailored to achieve the goals of
subsection (h) in the least costly, most cost-effective, or least
burdensome manner, as required under UMRA. The commenter also claimed
that EPA has not presented any evidence to show that proposed reporting
and recordkeeping requirements will increase opportunities for
reclamation beyond what will occur from market dynamics.
[[Page 82763]]
The commenter stated that in short, if there is a less burdensome
alternative that will accomplish EPA's stated objectives, then the
Agency is obligated to consider and adopt it unless another alternative
exists that is even less costly or burdensome. The commenter further
stated that it was not apparent that the type of scenarios they listed
or the associated costs were considered by EPA in developing its cost
estimates, and that EPA failed to consider how existing regulations,
policies and practices, and alternative approaches to address concerns
regarding mischaracterization of reclaimed HFC refrigerants would be
more effective, less costly, and less burdensome. The commenter
provides one such approach that the Agency should use existing
reporting requirements under the AIM Act and clarify that a reclaimer
cannot yield more reclaimed refrigerant than the quantity of recovered
refrigerant input. The commenter also asserted that the proposed 15
percent limit on virgin HFC refrigerants in reclaimed refrigerants is a
sharp departure from past interpretations and will result in
significant costs without adequate technical or legal justification,
and that many small reclaimers do not have capabilities to separate
mixed or out-of-ratio refrigerants, meaning that the 15 percent limit
will be difficult or impossible to meet for some small reclaimers. The
commenter stated that the result could be that many used refrigerants
will be destroyed, which the commenter stated would undermine the AIM
Act's directive to maximize reclamation and will also result in
significantly greater costs to the regulated community which EPA has
not considered. The commenter asserted that the proposed cap will
impose unjustified costs and burdens on all reclaimers and their
customers that do not appear to have been fully considered by EPA. The
commenter claimed that for EPA to meet its legal burden in proposing
this rule, it must demonstrate that its proposed limit is uniformly
technically achievable; that adoption of this limit will result in
increased reclamation beyond the regulatory and market factors EPA has
already identified, to meet its mandate under subsection (h); and that
EPA must also demonstrate under UMRA that this is the least costly,
most cost-effective, and least burdensome option. The commenter further
claimed that EPA provided no evidence that container tracking, marking,
and certification will serve to maximize reclamation, minimize
releases, or protect technicians and consumers beyond what is
accomplished by existing requirements, nor has the Agency demonstrated
that its proposed requirements are the least costly and burdensome
options. The commenter stated that small business grant programs, which
could help, have yet to be established and are subject to
appropriations availability.
Response: EPA disagrees with these commenters' assertions as
described in this response. EPA extensively considered the legal and
technical basis of formulating a reclamation standard provision under
subsection (h), as described in the proposed rule and in this final
action. As previously stated, EPA consulted with stakeholders before
the notice of proposed rulemaking (NPRM), through the opportunities for
public comment on the NPRM, and anticipates continuing engagement after
the rule is finalized. Notably, in October 2021, EPA released a draft
report ``Analysis of the U.S. Hydrofluorocarbon Reclamation Market:
Stakeholders, Drivers, and Practices,'' accompanying a NODA (87 FR
62843, October 17, 2022). EPA solicited stakeholder feedback and held a
public stakeholder meeting shortly after the NODA was published on
November 9, 2022. EPA received 11 comments in response to the NODA as
detailed above. EPA does not agree that the 15 percent limit on virgin
HFCs is not technically achievable and discusses in the prior response
in this section and in section IV.E.2 the technical capabilities of
reclaimers and the available technologies that are current in use. EPA
also discusses in another response in this section that the Agency
disagrees that the reclamation standard would lead to additional
destruction by small reclaimers. Further, EPA received comments to the
NODA stating the use of these technologies (e.g., fractional
distillation) is feasible, and the Agency is aware of reclaimers
expanding capacity of these technologies to process increased volumes
of reclaimed HFCs. Thus, there are technologies available (e.g.,
fractional distillation) that can be used and are currently in use to
reclaim HFCs while meeting the 15 percent, by weight, limit on virgin
HFCs in reclaimed material. With these considerations, EPA determined
that a 15 percent limit on virgin material is technically feasible and
received comments agreeing with that conclusion. As described in the
prior comment response, EPA received multiple comments disagreeing with
the reclamation standard of no more than 15 percent virgin HFCs, by
weight, and the Agency discusses these comments in that response.
EPA considered alternatives to the reclamation standard, including
soliciting comment in the NPRM on a lower limit and on not requiring a
limit at all. After considering these alternatives and the comments on
the reclamation standard, EPA concludes that the 15 percent limit is a
technically appropriate way to ensure a consistent understanding among
the regulated community of reclaimed material. Further, from both a
technical and a legal perspective, the Agency concludes that the
reclamation standard is an important part of ensuring that the
reclaimed HFCs that are used to comply with the requirements for
servicing and/or repair of certain refrigerant-containing equipment
with reclaimed HFCs are in fact chiefly constituted of reclaimed
material, thus helping to ensure that these requirements serve the
intended objective of maximizing reclamation, consistent with the
purposes identified in subsection (h)(1). To the extent the comment
suggests that EPA must provide evidence that the reclaim requirements
will substantially increase opportunities for reclamation beyond what
would occur from market dynamics or that they be uniformly technically
achievable, EPA does not agree that subsection (h) requires such
evidence as a prerequisite to regulation, for the reasons discussed in
the prior response to comment. In response to the commenters' statement
that the 15 percent limit on virgin HFCs differs from past
interpretations, EPA notes that this is the first rulemaking under
subsection (h) of the AIM Act and as such, there are no past
interpretations under this authority by which to compare. Thus, the
Agency is addressing questions related to the implementation and
interpretation of this provision for this first time in this
rulemaking. Further, title VI of the CAA does not contain the same or
similar language regarding reclamation as is included in subsection (h)
of the AIM Act, and thus past interpretations under the CAA were based
on different statutory text and context. In response to the comment
regarding reporting and recordkeeping requirements, EPA explains that
there are recordkeeping and labeling requirements finalized in this
rule to support compliance with the requirements for reclaimed HFCs
established in this rule. For example, some of the recordkeeping and
labeling requirements help to ensure that refrigerant that is sold or
marketed as reclaimed meets the reclamation standard. This in turn
helps ensure that
[[Page 82764]]
a person servicing and/or repairing refrigerant-containing equipment in
certain RACHP subsectors can identify that the reclaimed HFCs meet the
reclamation standard, and that they can service and/or repair
refrigerant-containing equipment with reclaimed HFCs that meet the
reclamation standard. As such, these recordkeeping and labeling
requirements support provisions to help to maximize reclamation but are
not designed to independently increase opportunities for reclamation.
Further, in response to the comment regarding the duplication of
existing regulations, EPA responds that it disagrees that the
requirements for labeling and recordkeeping duplicate the existing
regulations cited by the commenter. The commenter alludes to
regulations under 40 CFR part 84 subpart A, which require certain
recordkeeping and reporting for information from reclaimers on the
quantities of recovered refrigerant they receive, quantities they
reclaim, and the quantity of waste that is disposed of. The regulations
in 40 CFR part 84 subpart A also require recordkeeping for results of
analyses, by batch, that verify that purity standards for reclaimed
HFCs are met, specified contact information from whom they receive
recovered material, and the quantity of material, by HFC, that they
receive. The recordkeeping and labeling provisions finalized in this
rule do not duplicate these requirements because they include different
requirements than those included in the subpart A rules and are
designed to provide information related to the requirements of this
final rule. For example, this final rule establishes recordkeeping and
labeling requirements for reclaimers to retain information and provide
a label that certifies that the reclaimed HFCs they sell or distribute,
or offer for sale or distribution, meet the reclamation standard and
contain no more than 15 percent virgin HFCs, by weight.
In response to the alternative approach offered by one of the
commenters to address the potential mischaracterization of virgin HFCs
sold as reclaimed HFCs, EPA notes that this approach would not fully
capture the information needed to support compliance with this rule.
This approach would provide EPA with a snapshot to assess the amount of
reclaimed HFCs compared to the amount reclaimers receive as recovered
HFCs each year. However, as EPA understands, reclaimers may not reclaim
all the HFCs they receive in a single reporting year.\95\ They may
reserve recovered HFCs until a time that is more opportune to reclaim
the HFCs, based for example, on market considerations or other factors.
EPA notes that the commenter is correct that current reporting
requirements under 40 CFR part 84 subpart A provides useful data,
including inventory reports submitted annually. EPA could use this
information to assess reported totals of HFC reclamation as compared to
the total HFCs received by reclaimers and the amount of waste reported.
The labeling requirements in this rule are designed so that the
regulated entities servicing or repairing refrigerant-containing
equipment in the covered subsectors can confirm they are doing so with
reclaimed HFCs. There may be cases where the person (i.e., a certified
technician) servicing a piece of refrigerant-containing equipment in
the covered RACHP subsectors is not the same person that is purchasing
the reclaimed HFCs that will be required to service that piece of
equipment. Thus, the labeling requirements in this rule provide
certainty to the technicians that they are in compliance with the
reclaim requirements when they service and/or repair refrigerant-
containing equipment in the covered subsectors.
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\95\ See section IV.H.3 for discussion of speculative
accumulation requirements per the RCRA alternative standards.
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With respect to UMRA, the Agency's proposed action complied with
the requirements under UMRA that applied at proposal. Because the
requirements finalized in this rule are narrower in some respects than
those evaluated in the proposal, as well as the estimated impacts of
the 2023 Technology Transitions Rule in reducing the amount of
projected future stocks of refrigerant-containing appliances using an
HFC or HFC substitute with a GWP greater than 53, the estimated
compliance costs of the final rule are significantly lower than what
the proposed rule's estimated compliance costs were. As noted elsewhere
in this preamble, this final action does not contain an unfunded
mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-
1538, and does not significantly or uniquely affect small governments.
Thus, the requirements related to the adoption of the least costly,
most cost-effective, or least burdensome alternative that meets the
objectives of the rule under UMRA do not apply to this final action. To
the extent that the comments on the proposed requirements for
recordkeeping and reporting and other comments on EPA not evaluating
scenarios and associated costs estimates are related to the proposed
container tracking requirements, EPA responds that those provisions are
not being finalized in this rule, and the Agency is not addressing such
comments.
Given the importance of the 15 percent cap in helping to achieve
the regulatory objective of maximizing reclamation, EPA does not agree
that any costs or burdens that may be experienced by reclaimers or
customers are unjustified. While only some aspects of EPA's analysis
regarding projected impacts of the rule were considered in developing
this final rule, EPA notes that its analysis of the impacts of this
provision is discussed in the Economic Impact and Benefits TSD. EPA
disagrees with the commenter's assertion that the objectives of this
rule--which addresses requirements under subsection (h) of the AIM
Act--would already be achieved by previously established regulations
pertaining to separate statutory requirements of the AIM Act. As noted
above, the recordkeeping and reporting requirements under other
regulations under the AIM Act would not achieve the same purposes as
required in this rulemaking. The requirements under 40 CFR part 84
subpart A cited by the commenter provide information on reclamation
totals and provide insight on reclamation trends. They do not provide
information for compliance with the reclamation standard, nor would
they provide information about reclaimed HFCs to those regulated
entities servicing and/or repairing refrigerant-containing equipment.
As detailed in the Economic Impact and Benefits TSD, EPA evaluated
multiple scenarios regarding incremental impacts of this rule relative
to actions that industry may or may not undertake in the baseline. EPA
has presented results of the more conservative of these scenarios in
this preamble. The Agency has taken into consideration, in this rule,
requirements for reclaimed HFCs and expects these regulations will
provide market signals that will support increased recovery of HFC
refrigerants becoming available for reclamation, and will support
reclaimers increasing the amount of reclaimed refrigerants available to
meet the increased demand. The Economic Impact and Benefits TSD does
not include increased recovery in the base case for this rule based on
the assumptions for that scenario; however, EPA did consider an
alternate scenario with increased recovery and anticipates that the
reclamation provisions could support increased recovery during
servicing or disposal where the refrigerant may otherwise have been
[[Page 82765]]
vented or released. EPA also notes that estimated compliances costs
resulting from the final rule are significantly lower than those
assessed for the proposed rule, because the requirements finalized in
this rule are narrower in some respects than those evaluated in the
proposal. EPA reiterates that this rulemaking is designed to serve the
purposes identified in subsection (h)(1) of the AIM Act of maximizing
reclamation and minimizing the release of regulated substances. While,
as noted previously in this preamble, EPA has included estimates of the
costs and benefits of this rulemaking in analyses that are available in
the docket for this rulemaking, including in the Economic Impact and
Benefits TSD, to provide the public with information on the relevant
costs and benefits of this action and to comply with Executive Orders,
nothing in the AIM Act requires EPA to consider costs or identifies any
particular cost-based metric or analytical approach for use in
evaluating and establishing regulations to implement subsection (h).
The commenter correctly stated that subsection (h) of the AIM Act does
include a small business grant program that is subject to appropriation
availability. Subsection (h)(5) provides this program for the purchase
of new specialized equipment for the recycling, recovery, or
reclamation of a substitute for a regulated substance, including the
purchase of approved refrigerant recycling equipment for recycling,
recovery, or reclamation in the service or repair of MVAC systems.
Funds have not been appropriated for this grant program and the
establishment of this program is outside the scope of this rulemaking.
Comment: One commenter questioned why contractors seem to de-select
reclaimed refrigerants, noting the differences between the AHRI 700
standard and new refrigerants supplied with 99.99 percent purity and
precision blending. The commenter suggested EPA consider upgrading the
specification to match the current supply of virgin refrigerants.
Response: In response to the commenter's question regarding use of
reclaimed refrigerants in the RACHP sector, EPA notes that certain ODS
may only be available as reclaimed for use in particular applications
with the ODS phaseout. For example, since 2020, only reclaimed HCFC-22
can be used to service appliances in the RACHP sector. The same is true
for appliances using CFCs since the 1990s. The Agency is not aware of
any concerns from the RACHP servicing industry stemming from these
requirements. The Agency considers this example and the broader ODS
reliance on reclaimed ODS as informative in the context of this
rulemaking.
EPA acknowledges that both reclaimed and virgin HFCs are required
to meet the AHRI 700 purity standard and that even with compliance with
the AHRI 700 purity standard, there may be minor differences between
reclaimed and virgin refrigerant (such as moisture content). However,
these minor differences do not impact the functionality of the
reclaimed refrigerants in equipment nor do they suggest marked
differences between reclaimed and virgin refrigerants as both are
required to reach, at a minimum, AHRI 700 levels of purity. These
differences should not impact the equipment that uses these
refrigerants. Accordingly, EPA is not making any change to the
applicable specifications to match the current supply of virgin
refrigerants in this final action.
Comment: One commenter requested that EPA acknowledge the unique
challenges of returning diverse blends to ASHRAE specifications without
blending a significant amount of virgin content. The commenter cited
five- and three-component refrigerant blends that may be challenging to
return to their nominal composition, require more than 15 percent
virgin refrigerant, or use an HFC that is rarely used and therefore not
recovered in sufficient quantities. The commenter provided an example
of a newer blend, R-471A, which is a three-component blend that
consists of two HFO components and HFC-227ea. The commenter further
states that HFC-227ea is rarely used as a refrigerant today, and it
would be difficult to produce reclaimed R-471A based on this. The
commenter recommended increasing the permissible virgin percent
composition to avoid eliminating ASHRAE A1 refrigerants that comply
with the 2023 Technology Transitions Rule. Another commenter opposed
the 15 percent limit and stated that the standard may be feasible for
limited use of the two-component blend, R-410A, as was done in CARB's
program. The commenter further stated that the standard could not be
used to correlate to three, four, and five component blends that have
varying physical properties and would require varying cost-effective
technical options to bring the material to appropriate standards.
Another commenter supported EPA's 15 percent virgin content
standard for refrigerant blends with fewer than three components but
recommended 65 percent reclaimed content and 35 percent virgin HFCs for
blends with three or more components to account for minor additions in
certain products and issues with leak fractionation. Two commenters
recommended phasing in the virgin refrigerant limit over several years.
One of the commenters recommended starting with a 90 percent virgin
product in 2028 and progressing to the 15 percent limit. The commenter
noted this would enable the market to adjust.
Response: EPA acknowledges these comments on multi-component
blends. EPA is not establishing varying percentage limits for virgin
HFC refrigerant based on the number of components in a refrigerant
blend or a phase in approach by percentage. As explained in prior
responses, the Agency is establishing an upper limit for virgin HFCs in
reclaimed HFCs of 15 percent by weight. EPA acknowledges the
reclamation challenges in working with blends, and in particular with
three or more component blends. The Agency notes that there are
technologies available to effectively reclaim such blends and
reclaimers with the technical capability to do so. Further, EPA notes
that many blends with three or more components are currently being
reclaimed. The Agency provides an assessment of the anticipated demand
of some of these blends related to the requirements in this rule for
the servicing and/or repair of refrigerant-containing equipment with
reclaimed HFCs in three RACHP subsectors in its Analysis of the U.S.
Hydrofluorocarbon Reclamation Market: Stakeholders, Drivers, and
Practices. Among these blends are R-404A, R-407A, R-407C, and R-452A.
With the exception of R-452A (which is composed of two HFCs and an
HFO), each of these blends have HFCs as all three components. EPA
discusses supply of reclaimed HFCs in comment responses in section
IV.E.2, and the Agency further notes that it is likely that components
of blends will be reclaimed and reconstituted. For example, R-410A is
the most commonly reclaimed HFC blend, and it is expected to be a
significant source of its components (HFC-32 and HFC-125) as reclaimed.
It is possible that these reclaimed components from R-410A may be used
in these three-component blends to meet the estimated demand. In the
case of R-452A, EPA notes that the reclamation standard finalized in
this rule only applies to the HFC components of the blend and not the
HFO portion (which is a substitute for an HFC).
In the case of multi-component blends with more than three
components, EPA notes that there is estimated demand, as presented in
the Analysis of the U.S. Hydrofluorocarbon Reclamation Market:
[[Page 82766]]
Stakeholders, Drivers, and Practices, for two such blends: R-448A and
R-449A. R-448A is a five-component blend composed of three HFCs and two
HFOs, while R-449A is a four-component blend, composed of three HFCs
and one HFO. As noted and described in this preamble, the reclamation
standard finalized in this rule does not apply to substitutes for HFCs,
which in the case of these blends would be the HFO portions. The
reclamation standard finalized in this rule only applies to the HFC
portions of these blends, and as EPA has noted, could be met by the
reclamation of the individual components and reconstituted to a blend.
Single-component refrigerants and two-component blends are currently
the most commonly reclaimed substances, and they are also the most
common in installed equipment. However, per data reported under
regulations under section 608 of the CAA, blends with three or more
components, including R-448A and R-449A, are also currently being
reclaimed. EPA anticipates that with increased significance on
reclaimed HFCs as the phasedown progresses and as these three or more
component blends continue to be used in equipment, the reclamation of
these blends will also increase. Given the availability of such
technologies and for reasons explained elsewhere in this preamble and
responses to other comments, EPA considers the 15 percent upper limit
for virgin HFCs to be technically feasible commensurate with the
compliance date.
EPA also considers a 15 percent limit to better serve the purpose
identified in subsection (h)(1) of the AIM Act of maximizing
reclamation than using a higher percentage would. Further, the
compliance date provides time for the reclaimers and the market to
adjust. Therefore, EPA is not establishing a phased-in approach.
Lastly, EPA acknowledges there are some blends that rely on HFCs that
are not as commonly used as refrigerants, including newer blends such
as R-471A and certain ASHRAE A1 refrigerant blends that are compliant
with certain restrictions under the 2023 Technology Transitions Rule.
EPA notes that HFC-227ea is more commonly used in the fire suppression
sector and only to a far lesser extent used in refrigerant blends. The
Agency notes, however, that HFC-227ea is currently being reclaimed and
reported to EPA under the regulations under CAA section 608. Further,
EPA clarifies that the provisions finalized in section 84.112(b) state
that recovered regulated substances must have had bona fide use in
equipment but does not specify that the recovered substance needed to
be used a refrigerant and then recovered. The Agency also states that
it is only establishing requirements for the servicing and/or repair of
refrigerant-containing equipment to be done with reclaimed HFCs in
three RACHP subsectors, that will primarily require reclaimed HFCs and
blends that use components that have been common for many years (and in
some cases, even decades). As noted in the Analysis of the U.S.
Hydrofluorocarbon Reclamation Market: Stakeholders, Drivers, and
Practices, R-410A, HFC-134a, and R-404A are the most common HFCs/HFC
blends in the current stock of installed equipment, by mass. The Agency
also reiterates that the limit on virgin materials only covers the HFC
portion of a blend and refers to a previous response on calculating the
allowable mass of virgin HFCs in a previous response as it relates to
blends that contain an HFC and non-HFC component or more than one HFC
component.
EPA acknowledges that multi-component blends may have different
challenges in relation to their reclamation as compared to the
reclamation of single-component refrigerants or two-component blends.
However, as stated previously, EPA notes that many multi-component
blends are currently being reclaimed, as are the components that make
up these blends. As a general matter, the increased introduction and
use of multi-component blends over the past five to ten years has meant
that manufacturers of equipment and the servicing sector have had to
adapt to using these blended refrigerants. As the commenter did not
specify which types of varying cost-effective technical options might
be considered for the reclamation of multi-component blends, EPA
anticipates the commenter may be referring to how reclaimers consider
if more sophisticated technologies (e.g. fractional distillation) are
needed as compared to blending or rebalancing with virgin material. EPA
understands these considerations may vary depending on the technical
capabilities of a reclaimer and other market dynamics. Further, as
described in section IV.E.2, EPA is finalizing a discrete reporting
requirement to evaluate the availability of reclaimed HFCs intended for
servicing and/or repair of refrigerant-containing equipment in the
covered RACHP subsectors, which will also be useful in assessing the
degree by which these multi-component blends are reclaimed.
Comment: One commenter recommended adding ``and HFC substitutes''
to proposed reclaim requirements to avoid replicating past regulatory
gaps that led to environmental consequences and to provide for
comprehensive refrigerant management. The commenter stated that the
addition of substitutes would avoid disparities and possible
misinterpretation. The commenter stated that, if HFC substitutes are
not held to the same standard, concerns about mishandling, venting, and
ownership will be likely. Another commenter advocated for a mandatory
reclamation of all refrigerants in the United States, excluding
hydrocarbons. The commenter noted that many HFC substitutes are HFCs
themselves and cited the AIM Act's requirement that EPA maximize
reclamation and minimize release of HFCs and their substitutes. The
commenter anticipated that transitioning to HCFOs or other chemicals
could pose environmental concerns without sufficient life cycle
management plans, including limiting releases, and suggested that all
refrigerants be collected and transported to an EPA-certified
reclaimer.
Response: EPA is clarifying the Agency is defining the term
``substitute for a regulated substance'' to explicitly establish for
purposes of the regulations established in this rulemaking under 40 CFR
part 84, subpart C that substitutes for HFCs are substances that are
not HFCs. EPA recognizes that in the context of other rulemakings under
the AIM Act (e.g., 2023 Technology Transitions Rule), substitutes may
be used to refer to a lower-GWP substance that may or may not include
HFCs or blends containing HFCs. In this context of this rulemaking, EPA
is using a different definition to help distinguish between those
requirements that apply to HFCs and those that apply to substitutes for
HFCs. EPA is finalizing, as was proposed, to not require limits on the
amount of virgin substitutes for HFCs in reclaimed refrigerant, whether
neat or in blends. This exception is not a blanket exception from all
aspects of this rule or other related regulations. For example, all
regulated substances and non-HFC substitutes for HFCs with GWP greater
than 53 would be subject to the leak repair requirements established in
this rule. Further, EPA notes that HFCs and certain substitutes for
HFCs, including HFO and HCFO refrigerants, are not exempt from the
venting prohibition under 40 CFR 82.154, and it is illegal to knowingly
vent or otherwise release such refrigerants into the environment while
[[Page 82767]]
maintaining, servicing, repairing, or disposing of an appliance or IPR.
EPA is aware that substitutes for HFCs are increasingly being used in
certain RACHP subsectors and are commonly used in refrigerant blends
with HFCs. Any refrigerant blend that contains an HFC would be subject
to the leak repair requirements in this rulemaking, which are being
established consistent with the purposes identified in subsection
(h)(1) of the AIM Act, including maximizing reclamation and minimizing
the release of regulated substances from equipment. EPA decided to
limit the requirements that apply to substitutes for HFCs in this rule
to those substitutes for HFCs with GWPs above 53 for reasons
articulated in this final rule and in the proposal. EPA is applying
this cutoff because it is the lowest GWP among regulated substances in
the AIM Act. Further, the installed stock of these substitutes for HFCs
is not as established as the installed stock of refrigerant-containing
equipment with HFCs or refrigerants that contain HFCs. However, the
installed stock of these substitutes for HFCs may be important in the
future, and EPA may reevaluate this decision in the future and may
consider applying other aspects of this program to non-HFC substitutes.
As noted in a previous response, EPA interprets subsection (h) to
authorize regulations that would apply to substitutes for HFCs.
Comment: One commenter noted that reclaimed refrigerant has never
needed to be labeled in the industry and stated that requirements to
label reclaimed refrigerant would create an additional ``product''
despite the reclaimed gas being chemically and functionally identical
to virgin. The commenter stated that the greatest benefit to reclaimers
is if reclaimed refrigerant is marked as fungible with virgin
refrigerant. The commenter stated that labeling reclaimed refrigerant
could lead to a perception that reclaimed material is of lesser quality
and therefore had to be mandated by a Federal agency. The commenter
claimed this could depress reclaimed gas sales contrary to the AIM
Act's direction, and would create confusion about why two different
classes of refrigerant exist in the market. Another commenter opposed
the recordkeeping and labeling requirements and claimed that there was
no clear need to ensure that reclaimed refrigerants are easily
recognized by servicers because technicians only need assurance that
the material meets appropriate specifications for the particular HFC or
HFC blend. The commenter stated that requirements for reclamation
occurring at the batch level further reduced the meaning of the
proposed container marking requirements. The commenter stated that
compliance with EPA's proposed mandate was the only reason servicers
would need to distinguish between reclaimed and virgin material. The
commenter suggested that EPA should instead clarify that for current
reclaimer reporting, a reclaimer's annual total reported reclamation
should match the reclaimer's reported annual total of recovered input
minus waste, which could be a less burdensome alternative that the
Agency should consider. A third commenter recommended the use of a
label or QR code to disclose the amount of bona fide recovered
refrigerant in reclaimed material. The commenter advocated detailed
data on chain of custody to avoid false claims and illegal trade, with
a ``credible paper trail throughout its return to service.''
Response: EPA acknowledges that this labeling requirement is new
and may vary from current practices. The Agency disagrees that the
labeling requirements would designate reclaimed refrigerant as being
inferior to virgin refrigerant and disagrees with the commenter's
description of the perceived rationale for a Federal agency mandate.
The Agency was clear in the NPRM and in this final rule that reclaimed
refrigerant is capable of performing the same functionality of virgin
refrigerant in equipment. Both are required to meet the exact same
purity standard (i.e., based on AHRI 700). The labeling requirements
are being established to support the required uses of reclaimed
refrigerants and to indicate that the reclaimed refrigerant contains no
more than 15 percent, by weight, virgin HFCs, thus promoting a
consistent understanding of what reclaimed refrigerants are. Given the
requirements for the servicing and/or repair of certain refrigerant-
containing equipment to be done with reclaimed HFCs in this final
action, labeling will help regulated entities comply with those
obligations. Thus, EPA disagrees with the comment that there is no need
for technicians to be able to easily recognize reclaimed refrigerant.
As such, the labeling requirement helps to support the purpose
identified in subsection (h) of the AIM Act to maximize reclamation.
The Agency further notes that use of similar labels that indicate
use of recycled materials is common practice throughout a wide range of
industries and products. Many consumers value and seek out recycled
materials or products. The requirements that both virgin and reclaimed
HFC refrigerants must meet the same standards for purity based on AHRI-
700 is relatively new, and in fact EPA regulations under CAA section
608 only applied the requirement to meet the AHRI-700 purity standard
to reclaimed refrigerants.\96\ EPA acknowledges that some applications
require higher purity material than AHRI-700 (e.g., metered dose
inhalers) and there may be contractual arrangements that limit entities
to suppliers of virgin or reclaimed refrigerant only at this time.
However, as noted throughout this final rule, as the phasedown of the
production and consumption of virgin HFCs continues, demand for
reclaimed HFC refrigerant will grow. Thus, the required label will
provide pertinent information to purchasers and users of refrigerants
and help them to select a refrigerant that meets their needs in
particular situations. EPA responds that the commenter's concern that a
new label could signal a new separate ``product'' seems unfounded given
that all reclaimed HFCs will be required to be labeled as such and
there is an overall requirement for labeling of HFCs. Further, EPA is
aware of at least one reclaimer that specifically markets a line of
refrigerants as reclaimed refrigerant.
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\96\ EPA finalized a requirement that all HFCs (both virgin and
reclaimed) imported, filled in containers domestically, and sold as
refrigerants meet the specifications in appendix A to subpart F of
part 82--Specifications for Refrigerants, see Allocation Framework
Rule at https://www.federalregister.gov/d/2021-21030/p-679.
---------------------------------------------------------------------------
EPA acknowledges the comments raising chain of custody concerns.
EPA is imposing recordkeeping requirements providing the name, address,
contact person, and the phone number of the reclaimer certified under
40 CFR 82.164, as well as information about the date the container was
filled and the amount of the regulated substance in the container.
Batch and substance identification information is included in these
requirements along with the percentage, by weight, of the virgin
regulated substances. The labeling and certification requirements in
this rulemaking help to ensure that purchasers and users of reclaimed
refrigerant are receiving and/or using a product that has been verified
to be reclaimed to the proper purity, as well as meeting the 15 percent
limit on virgin HFCs.
Comment: Many commenters commented on limiting recovered and
reclaimed material to substances removed from equipment or systems in
the United States. One of the commenters stated that limiting the
source of material to the United States would help EPA ensure the
quality of material, confirming that only standard-
[[Page 82768]]
compliant material is utilized, and allow for greater transparency and
traceability throughout the reclamation process, facilitating
monitoring and enforcement, ensuring the program operates effectively
and efficiently. Another commenter stated that illegally traded HFCs
will decrease reclamation. One commenter asserted that neither
reclaimed nor virgin material should be imported for destruction for
carbon credit purposes and that EPA should instead prioritize recovery
and reclamation in the U.S. market.
One commenter suggested that geographic limits and quality control
are necessary to ensure bona fide use and recovery and ensure
compliance with the reclamation standard and maximum virgin content.
The commenter claimed that incidents of importing virgin refrigerant
sold as counterfeit reclaimed refrigerant have been documented under
previous ODS phaseout regimes and that requirements to expend
allowances for bulk imports does not ensure compliance with the 15
percent limit. The commenter also stated that importers of pre-charged
equipment would not be subject to the same allowance requirements. In
contrast, the commenter claimed that requirements to use domestically
reclaimed refrigerant will be verifiable and enforceable, particularly
with the proposed tracking and labeling requirements which will support
a strong domestic market. Another commenter questioned how EPA would
monitor that refrigerant was reclaimed with the authorized limit of
virgin material and suggested that relying on certifications would be
an invitation to abuse, especially for refrigerant reclaimed overseas.
Another commenter expressed concern that imported refrigerant could be
incorrectly labeled as reclaimed if it came from countries with excess
production. Conversely, the commenter stated that more profitable
exports of recovered refrigerant could starve domestic servicing needs.
Another commenter stated that, without a geographic limitation for
reclaimed or recovered refrigerant sourcing, refrigerant recovered
abroad will not reduce U.S. emissions nor create market incentives to
improve domestic recovery and verifying recovery or reclamation abroad
will be very challenging, potentially indirectly advantaging importers
of pre-charged equipment sourcing cheaper or even counterfeit material.
The commenter also stated that the United States should not aim to
receive reclaimed HFCs from the world because Kigali Amendment
ratifiers need to implement their own phasedowns and it would be better
to reuse HFCs within their countries of origin. The commenter also
suggested that there is an incentive for cheating given that importing
reclaimed HFC-32 requires fewer allowances than HFC-410A. The commenter
encouraged setting up trade agreements for import of reclaimed HFCs
where a similar HFC phasedown schedule exists.
Another commenter requested that EPA make clear that reclaimed
refrigerant must have been recovered from equipment in the United
States or that reclaimed material from outside the United States be
allowed only if it was legitimately recovered, disclosed upon import,
and followed EPA's current process for legacy refrigerants. An
additional commenter suggested that EPA establish standards and a
certification process to ensure reclaimed refrigerant is authentic and
has a known point of origin. Another commenter stated that it is
important that importers of pre-charged equipment be required to
purchase reclaimed HFCs from EPA-certified reclaimers in the United
States, either using reclaimed material to charge equipment in the
United States or dry-shipping equipment and charging it in the United
States. The commenter suggested requiring the dry shipment of equipment
to be charged in the United States, to minimize the transport of
reclaimed HFCs across countries.
Response: EPA acknowledges these comments regarding the
verifiability of recovered and reclaimed HFCs particularly outside the
United States. The Agency is not establishing a requirement that
recovered or reclaimed HFCs be sourced only from equipment in the
United States in this final rule. The Agency understands the
commenters' concerns to ensure that refrigerant that is recovered and
sent for reclamation can be confirmed as having a bona fide use in
refrigerant-containing equipment, as this rule requires, and that there
can be challenges in verifying imported material claiming to be
recovered or reclaimed. EPA anticipates that in most cases, recovered
material that reclaimers receive would have been sourced from
refrigerant-containing equipment within the United States. Under the
requirements previously established in separate regulations in 40 CFR
part 84, subpart A, import of any bulk HFCs to the United States,
whether virgin, reclaimed, or recovered, requires expenditure of the
requisite number of allowances and associated reporting and
recordkeeping under those regulations. Thus, if one were to import any
recovered HFCs to be reclaimed within the United States, allowances
must be used. As stated, EPA anticipates reclaimers would likely seek
to obtain recovered materials from within the United States, as they
would not require allowances to receive these domestically recovered
HFCs. The regulations under 40 CFR part 84, subpart A are designed to
provide recordkeeping and reporting requirements for the requirements
under subpart A, but the Agency notes that this reported information
may also be useful in identifying if practices are occurring that would
violate the regulations established in this final rule. Even if
commenters are correct about current incentives regarding imports, as
the HFC production and consumption phasedown progresses, and the
overall quantity of available allowances decreases, importers will need
to make decisions about how to expend their allowances, and those
incentives may shift.
In response to comments related to requiring geographic limits to
ensure that recovered materials had bona fide use in equipment, EPA
concludes that such restrictions are not required to ensure the
provisions in this rule are being followed. The requirements in this
rule are such that the servicing and/or repair of certain refrigerant-
containing equipment must be done with reclaimed HFCs, and the
reclaimed HFCs must meet the standard of containing no more than 15
percent virgin HFCs, by weight. EPA has established labeling provisions
for EPA-certified reclaimers to affix labels on containers they fill
with reclaimed HFCs to certify that the standard is being met. As such,
any material that is reclaimed by an EPA-certified reclaimer would have
a label certifying compliance with the reclamation standard. If one
chooses to import reclaimed HFCs and sell, identify, or report market
it as being reclaimed for use in the installation, servicing, or repair
of refrigerant-containing equipment, they would need to verify that the
imported reclaimed HFCs are meeting the reclamation standard to ensure
they are in compliance with the requirements finalized in this rule at
84.112(a). Further, under this final rule, those servicing and/or
repairing refrigerant-containing equipment in the supermarket systems,
refrigerated transport, or automatic commercial ice makers subsectors
that contains an HFC must do so with reclaimed refrigerant that meets
certain requirements including the reclamation standard. Thus, they
would need to confirm that the reclaimed HFC refrigerant they are using
for these purposes meets those requirements to ensure they are in
compliance with their obligations. Moreover, this final rule
establishes
[[Page 82769]]
certain requirements for the sale, distribution, or transfer of
ownership for certain recovered HFCs, including reclaiming the HFCs
prior to such sale, distribution, or transfer, with limited exceptions.
Thus, if one chooses to expend allowances and import recovered HFCs,
the recovered HFCs must, as applicable be reclaimed before being sold,
distributed, or transferred to a new owner. See also subsection
(h)(2)(B) (providing that a regulated substance used as a refrigerant
that is recovered shall be reclaimed before the regulated substance is
sold or transferred to a new owner, except where the recovered
regulated substance is sold or transferred to a new owner solely for
the purposes of being reclaimed or destroyed). Further, as required by
this rule, the EPA-certified reclaimers who fill reclaimed HFCs into
containers for sale or distribution will need to ensure the reclaimed
HFCs meet the reclamation standard of no more than 15 percent virgin
HFCs, by weight, and will need to comply with the applicable labeling
and recordkeeping requirements.
In response to the comment stating that refrigerant recovered
abroad will not reduce U.S. emissions and may disincentivize domestic
recovery, EPA disagrees and states, as noted earlier in this comment
response, that allowances are required to import any HFCs. Thus, any
HFCs (whether virgin, reclaimed, or recovered) that are imported
require the expenditure of allowances that have been allocated and
accounted for under other regulations under the AIM Act. If recovered
materials are imported, they would have been accounted for under the
phasedown and would not contribute to additional emissions. EPA also
disagrees that imports of recovered materials could disincentivize
domestic recovery of HFCs. Reclaimers do not need to expend allowances
to receive HFCs that are recovered domestically, which EPA anticipates
being an incentive for reclaimers to primarily seek domestically
sourced recovered HFCs as source material for reclamation. EPA
acknowledges that whether recovered materials are reclaimed in the
United States as opposed to exported may come down to a business
decision; however, the requirements in this rule would promote
reclaimed HFCs in the servicing and/or repair of certain refrigerant-
containing equipment. These requirements would likely, in turn, promote
recovery of HFCs to be reclaimed to meet the demand for servicing and/
or repairing these equipment as opposed to exporting the recovered
materials.
EPA understands that illegal trade of HFCs may decrease demand for
refrigerant reclamation, and moreover, is a concern for the successful
implementation of the phasedown. Outside of this rulemaking, EPA has
already established a multifaceted enforcement approach to deter the
illegal import of HFCs. The strong compliance and enforcement system
will help preserve the environmental and economic benefits of the HFC
phasedown.
With respect to the comments related to other countries'
implementation of the Kigali Amendment and the import of virgin or
reclaimed material for destruction or carbon credit purposes, the
topics are out of scope for this rulemaking, and thus these comments
require no further response. For additional clarity, the Agency notes
that under 40 CFR 84.25, EPA does allow the import of regulated
substances into the United States for destruction, subject to a
petition process. However, the provisions included in 40 CFR 84.25 are
out of scope for this rulemaking.
EPA also received comment that reclaimed feedstocks sourced from
the United States should be treated similarly to imports for
transformation, with no time limit for how long they can be stored
under 40 CFR 84.25, and that domestic reclaimed feedstocks awaiting
blending or fractionation should be treated equivalently to HFCs
imported for destruction. As noted above, provisions included under 40
CFR 84.25 are out of scope of this rulemaking, and thus the comment
requires no further response. EPA further notes that the commenter
appears to be using the term ``feedstock'' in a way that diverges from
the Agency's use of that term. For example, as explained further in the
2024 Allocation Rule, creating a blend is a completely different
process from producing HFCs in the first instance, in which feedstock
chemicals are entirely consumed as part of a production process. See 88
FR 46836, 46863 (July 20, 2023).
EPA notes that it is not finalizing the proposed requirements for
the initial fill of new refrigerant-containing equipment with reclaimed
HFCs in this rulemaking, as discussed elsewhere in this section and in
section IV.E of this preamble. Thus, to the extent these comments
relate to those proposed requirements for initial fill of such
equipment, EPA need not respond further to them in this action. EPA is
requiring bona fide use for recovered HFCs that are used to meet the
requirements established in this rule related to the provisions for
reclaimed HFCs. Circumventing those requirements by importing pre-
charged equipment and recovering the refrigerant without bona fide use
would be inconsistent with the requirements of this final rule.
2. Requirements for servicing and/or repair of existing equipment
in the RACHP sector EPA proposed that the servicing and/or repair of
refrigerant-containing appliances in certain subsectors and
applications in the RACHP sector where HFCs (whether neat or in a
blend) are used would need to be done with reclaimed HFCs starting
January 1, 2028. EPA proposed these requirements for refrigerant-
containing appliances in the following RACHP subsectors:
Stand-alone retail food refrigeration;
Supermarket systems;
Refrigerated transport; and
Automatic commercial ice makers.
EPA is finalizing this provision with modifications after
consideration of the comments. EPA is requiring that the servicing and/
or repair of refrigerant-containing appliances in certain subsectors
and applications in the RACHP sector where HFCs (whether neat or in a
blend) be done with reclaimed HFCs starting on January 1, 2029, one
year later than the proposed date of January 1, 2028. Further, EPA is
finalizing the requirement for the servicing and/or repair of
refrigerant-containing equipment to be done with reclaimed HFCs for
some (but not all) of the subsectors addressed in the proposal. EPA is
not finalizing this requirement for stand-alone retail food
refrigeration but is establishing the requirement for refrigerant-
containing equipment in the supermarket systems, refrigerated
transport, and automatic commercial ice maker subsectors.
As noted in section I.B, EPA is not finalizing as part of this
action the proposed provisions for container tracking of HFCs that
could be used in the servicing, repair, and/or installation of
refrigerant-containing or fire suppression equipment. However, EPA is
establishing a discrete reporting requirement for reclaimers and
refrigerant distributors that supply reclaimed HFCs in the affected
RACHP subsectors (i.e., supermarket systems, refrigerated transport,
and automatic commercial ice makers). EPA is planning to use these data
to monitor progress on the amount of reclaimed HFCs available for use
in these subsectors ahead of the compliance date for the requirements
for the servicing and/or repair of refrigerant-containing equipment
with reclaimed HFCs in the covered RACHP subsectors. EPA is
establishing this requirement in
[[Page 82770]]
response to, and based on consideration of, comments \97\ seeking
assessment and data associated with reclaim use and availability. EPA
is establishing a discrete reporting requirement for these entities to
provide this information to EPA, so that EPA can further evaluate the
availability of reclaimed HFCs intended for servicing and/or repair of
equipment in these subsectors. The reporting requirement will require
two annual reports (i.e., one report in each of two years) to be
submitted to the Agency, which includes information on the reclaimed
HFC refrigerants sold or distributed to equipment owners and operators.
Each annual report must be submitted by February 14 of the year
following the reporting period and include information on the amounts
and types of reclaimed HFCs intended for servicing and/or repair of
equipment and sold in the covered subsectors over the preceding
calendar year. The first report is due on February 14, 2027, and covers
activity from January 1, 2026, to December 31, 2026; the second report
is due on February 14, 2028, and covers activity from January 1, 2027,
to December 31, 2027. The Agency notes that these compliance dates
coordinate with the labeling requirements being established in this
rulemaking, such that refrigerant distributors would know which
containers contain refrigerants with reclaimed HFCs. EPA intends to use
this information to further evaluate the ability to comply with the
requirements for the servicing and/or repair of refrigerant-containing
equipment with reclaimed HFCs in these subsectors as established in
this rulemaking. Further, the two-time reporting will allow EPA to
assess the one-year trend in availability of reclaimed HFCs for use in
the servicing and repair of refrigerant-containing equipment in the
covered subsectors. EPA will review this information and may consider
proposing changes to the provisions, if warranted.
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\97\ EPA received multiple comments, available in the docket of
this rulemaking, related to taking a data driven approach to
establish requirements for servicing and/or repairing refrigerant-
containing equipment with reclaimed HFC refrigerants. Examples
include EPA-HQ-OAR-2022-0606-0109, EPA-HQ-OAR-2022-0606-0121, and
EPA-HQ-OAR-2022-0606-0147, among others.
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EPA notes that the reporting requirements here contain certain data
elements that are similar to data elements that were originally
proposed as a part of the container tracking provisions. As noted, the
Agency is not finalizing those provisions in this action; however, the
public was aware of EPA's interest in information on these topics
through the proposal to include similar data elements in those other
provisions. As commenters noted, and EPA agrees, there is value to
collecting such data as it pertains to provisions that are being
finalized in this rulemaking; notably, the requirements for servicing
and/or repair of certain refrigerant-containing equipment with
reclaimed HFCs. Thus, these reporting requirements are being
established as requirements that are separate and distinct from the
proposed tracking system requirements, although they include a limited
number of data elements that are similar to some included in the
proposed tracking system requirements. For example, these reporting
requirements are different from the proposed tracking system
requirements because they are being established to occur only twice and
do not require data elements be reported at an individual container
level.
Comment: Several commenters expressed broad support for EPA's
proposed requirements for the recovery and reclamation of HFC
refrigerant. Some commenters stated, consistent with the preamble to
the proposal, that reclamation can bolster the current HFC supply,
support a smooth transition to HFC substitutes, minimize disruption of
the current capital stock of equipment, avoid supply shortages of
virgin refrigerants, and help to finance refrigerant recovery. Two
commenters stated that because the proposed use requirements apply only
to HFCs and not their substitutes, EPA's approach could encourage
certain users to transition away from HFCs altogether into lower-GWP
substitutes. One commenter suggested that increasing HFC reclamation
benefits the climate, economy, and all users of cooling equipment and
supports the availability of refrigerants for increasing demand for
refrigerants in heat pumps for building decarbonization. The commenter
further agreed that as proposed, the rule will help insulate the
industry, and consumers, against price spikes that could affect the
servicing of existing systems using HFCs. Another commenter stated that
the provisions would send a strong market signal in favor of increased
reclamation and lead to a reduction of HFC emissions and venting.
Another commenter stated that sufficient reclamation volume may help
reduce demand for new, virgin HFC production and consumption, which is
more emissive than the reclamation process, and that the implementation
of the subsection (h) rule can be a transformative force, particularly
in addressing low rates of HFC reclamation.
One commenter generally supported reclaimed refrigerant mandates to
drive recovery and stimulate investment, but requested that the final
requirements be sensitive to market conditions in terms of current and
projected refrigerant supply, production, and consumption. The
commenter stated that they did not support claims that reclaim mandates
are not feasible because of insufficient material to meet demand or
because market data for a given year takes time to accumulate and
analyze. Another commenter supported regulations to increase the use of
reclaimed refrigerants in the market, specifically through the
incentivization of recovery and/or improvement of EPA's ability to
enforce recovery. Another commenter also claimed that reclaimers have
made significant progress investing in and installing technology to
reclaim complex HFCs including fractional distillation to expand
reclamation capacity.
Response: EPA acknowledges these supportive comments. The Agency
agrees that the volume of reclaimed HFC refrigerants will grow
significantly in the coming years particularly as the production and
consumption of virgin HFCs decreases consistent with the phasedown
provisions under the AIM Act. EPA anticipates this increased volume
will support compliance with the requirements related to reclaimed
refrigerants finalized in this action and addresses other comments
related to supply of reclaimed HFCs in more detail in another response
in this section. However, as described earlier in this section, EPA is
establishing a discrete reporting requirement for data on the
availability of reclaimed HFCs used in the servicing and/or repair of
refrigerant-containing equipment in the covered RACHP subsectors and
EPA may evaluate the requirements established in this rulemaking after
assessing the reported data. With respect to the comment suggesting
that the final requirements be sensitive to market conditions, EPA
notes that these discrete reporting requirements will improve EPA's
ability to evaluate market conditions and consider whether adjustments
are appropriate.\98\
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\98\ To the extent this commenter refers to refrigerant
production and consumption, EPA further notes that it appears that
the commenter may be using these terms differently from how EPA uses
them, and it is not clear what relevance those terms have in this
context. Both of these are defined terms under the AIM Act, and as
defined in 40 CFR 84.3 they refer to regulated substances.
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EPA responds to comments stating that these provisions may result
in some
[[Page 82771]]
equipment owners or operators switching to a refrigerant that is a
substitute for an HFC by noting that entities may choose to transition
to a different refrigerant for a number of reasons. For example, some
equipment owners or operators may choose to transition on a decision
based on energy efficiency. However, EPA is establishing reclamation
requirements for servicing and/or repair of refrigerant-containing
equipment in certain RACHP subsectors to promote reclamation of HFCs,
consistent with the purpose identified in subsection (h)(1) of the Act
of maximizing reclamation of HFCs. The Agency is not establishing these
provisions as a means to promote transitions to substitutes for HFCs.
While EPA did not primarily focus on this provision as a way to
minimize emissions of HFCs from refrigerant-containing equipment, the
Agency describes in the Economic Impact and Benefits TSD that the
reclaim requirements may lead to additional emission reductions by
increasing recovery of refrigerant at equipment disposal. In our
analysis, however, we assumed such emission reductions would take place
due to previous AIM Act regulations (although not specifically required
by such) and normal, business-as-usual practices by the industry--for
instance in response to the venting prohibition in 40 CFR 82.154--and
so conservatively did not include such emission reductions as benefits
attributable to this rule. The Agency views other provisions finalized
in this rule as primarily focused on minimizing emissions (e.g., leak
repair requirements as discussed in section IV.C). The Agency
acknowledges these comments related to supply and availability of
reclaimed HFCs as well as the availability of advanced reclamation
technologies for efficient reprocessing and complex separations. Many
commenters provided support that the supply of reclaimed HFC
refrigerants would be adequate to achieve the provisions in this
rulemaking, while other commenters noted concerns on supply. Further,
commenters provided information on the availability and current use of
these technologies to support the requirements of this rulemaking. EPA
agrees with commenters that there is adequate supply of reclaimed HFC
refrigerants to support the provisions in this rulemaking. Comments
related to supply of reclaimed HFCs are discussed in additional detail
in other responses later in this section and in section IV.E.1.
The Agency agrees with the comments stating that increased
reclamation could help to reduce the demand for virgin HFCs,
particularly for HFCs such as those used in servicing and/or repair of
refrigerant-containing equipment in RACHP subsectors such as
supermarket systems, refrigerated transport, and automatic commercial
ice makers. Further, EPA agrees with the comments stating that
increased reclamation is likely to help insulate the market from
possible price spikes for certain refrigerants as the phasedown of the
production and consumption of virgin HFCs progresses. Reclaimed HFCs
are and will continue to be an important source for refrigerants for
existing refrigerant-containing equipment. As virgin HFCs may become
scarcer to support the servicing and/or repair of existing refrigerant-
containing equipment, reclaimed HFCs will be increasingly more vital.
EPA also acknowledges comments stating the reclamation process is
overall less emissive than production of virgin HFCs for use as
refrigerants. However, EPA believes this point warrants further
evaluation in the context of the U.S. market, and thus, is not
concluding that the reclamation process is overall less emissive than
the producing virgin HFCs for use as refrigerants.
EPA recognizes the importance of increased recovery as it relates
to maximizing reclamation. In agreement with some of the comments, EPA
anticipates that the provisions in this rule would drive additional
recovery to support the reclamation of HFCs. EPA discusses the
anticipated effect of increased recovery in responding to another
comment in this section. For example, additional recovery is expected
as more refrigerant-containing equipment reaches their end-of-life, and
the value of refrigerants needed to service existing refrigerant-
containing equipment increases.
Comment: Several commenters supported reclaim requirements for
servicing existing equipment. One commenter stated that all HFC
refrigerants used in the servicing of equipment should be applicable to
the proposal. One commenter generally supported reclaim requirements
for the sectors specified. The commenter recommended extending
servicing requirements to additional subsectors as adequate reclaimed
HFC supplies become available. Another commenter supported the role of
recovery and reclamation of refrigerants, particularly as the supply of
virgin HFCs is reduced.
Some commenters expressed support for the use of reclaimed
refrigerants in existing equipment and urged EPA to maximize the use of
reclaimed refrigerants in the market. One commenter claimed that until
the transition to near-zero GWP refrigerants is complete, the use of
reclaimed refrigerant will lessen the impact of continued use of mid-
range GWP refrigerants and will help avoid stranding existing higher-
GWP equipment that may be well within its useful life. Another
commenter stated that a reclaim mandate for servicing of existing
equipment would be reasonable, as refrigerants supplied to service
equipment are distributed through many channels and would not conflict
with current business models. Another commenter requested that
reclaimed refrigerants be mandatory only in servicing applications and
states that the recovery of high-GWP refrigerants currently in use can
be promoted more effectively, leading to a significant contribution
towards mitigating global warming.
Another commenter generally supported most aspects of the proposed
rule and stated that successful carbon reduction initiatives require
cooperation among chemical manufacturers, wholesale distributors,
technicians, EPA-certified reclaimers, and government agencies. The
commenter appreciated EPA's transparent, collaborative, and market-
neutral approach to the HFC allocation, technology transitions, and
refrigerant management rulemakings.
Response: EPA acknowledges these comments in support of the
provisions related to the servicing and/or repair of refrigerant-
containing equipment with reclaimed HFCs in certain RACHP subsectors.
In the Agency's view, based in part on its experience with ODS-
containing equipment, reclaimed HFCs will play an increasingly key role
in supporting existing equipment as virgin materials become scarce;
several of these comments provide additional support for that view. As
described in more detail in responses later in this section, EPA is
establishing requirements for the servicing and/or repair of
refrigerant-containing equipment to be done with reclaimed HFCs in
three RACHP subsectors: supermarket systems, refrigerated transport,
and automatic commercial icemakers. EPA agrees that these requirements
for the servicing and/or repair of certain refrigerant-containing
equipment to be done with reclaimed HFCs are reasonable and will not be
disruptive, as reclaimed refrigerants are available for these sectors
and used to a degree already. EPA also is reiterating that the Agency
is not at this time establishing requirements for the initial
[[Page 82772]]
fill of refrigerant-containing equipment with reclaimed HFCs in any
RACHP subsectors and is maintaining the focus of this rulemaking on
servicing and/or repair of equipment in the covered RACHP subsectors.
EPA acknowledges comments regarding evaluating for additional
applicability of the requirements for servicing and/or repair of
refrigerant-containing equipment with reclaimed HFCs in other RACHP
subsectors. The Agency discusses the consideration of additional
subsectors in another response in this section.
Comment: One commenter stated that reclaimed refrigerant has played
a crucial role in maintaining chillers for decades, starting with CFCs.
The commenter also noted that reclaimed HCFC-22 played a critical role
in the gaps of supply after EPA, in compliance with the Montreal
Protocol, accelerated the HCFC phaseout schedule and banned HCFC-22 for
new equipment when there were brief periods of concerns about shortages
for servicing.
Response: EPA acknowledges this comment and agrees that reclaimed
refrigerants have played an important role in servicing ODS equipment
leading up to and since the production and consumption of those ODS
have been phased out, as noted in a prior response in this section the
Agency's experience with ODS-containing equipment informs its view that
reclaimed HFCs will play an increasingly key role to support existing
equipment as virgin materials become more limited. While this
rulemaking does not include required use of reclaimed HFCs for
chillers, EPA notes the commenter's example of the importance of
reclaimed refrigerants to meet servicing demand where virgin
refrigerants have become scarce.
Comment: Some commenters opposed the proposed requirements for the
use of recovered and reclaimed HFCs for certain RACHP subsectors for
servicing of existing equipment. The commenters claimed that the
proposal is creating consternation and uncertainty for their
supermarket customers who have already been converting their systems to
low-GWP refrigerants as quickly as possible. The commenters also
asserted that the HFC phasedown and 2023 Technology Transitions Rule
will create demand for reclaimed refrigerants, and EPA does not need to
impose mandates to accomplish this. The commenters strongly encouraged
EPA to withdraw any mandates on the use of reclaimed refrigerant and
allow market dynamics to create an increased demand for reclaimed
refrigerant without the added burden of a compliance risk. A few
additional commenters expressed opposition to mandating the use of
reclaimed HFCs in the specific refrigeration sectors, arguing it is
unnecessary market manipulation. Some of these commenters added that
the best time for switching may not be the same across all sectors and
supported allowing market forces to drive the transition to reclaimed
HFCs. The commenters claimed that regulations may distort key market
features and negatively impact consumers. Another commenter suggested
that EPA delete requirements for use of reclaimed refrigerants from the
rule.
One commenter suggested that the phasedown schedule, most
imminently the 2024 reduction, will significantly reduce the supply of
regulated substances. The commenter further stated that with the
reduction in available allowances to produce or import virgin regulated
substances, the supply of higher-GWP refrigerants will be reduced such
that sufficient allocation is available to meet demand for lower-GWP
refrigerants. The commenter stated that the 2023 Technology Transitions
Rule by design, will increase the demand for lower-GWP refrigerants
exponentially each year due to new appliance GWP limits. The resulting
dynamic of these requirements will lead to an increase in the demand
for reclaimed HFCs, especially to service the installed base of higher-
GWP refrigerant-containing appliances. The commenter also stated that
there is no evidence that the requirement to use reclaimed HFCs will
lead to greater reclamation, and the Agency did not show how this
aspect of the rule would reduce releases of refrigerant. Further, the
commenter stated there is no need for regulation to create demand for
reclaimed refrigerant. For these reasons, the commenter stated that
EPA's proposal to require the use of reclaimed refrigerants in
servicing of certain equipment is unneeded.
Response: EPA acknowledges the comments and concerns described. EPA
understands that the supermarket industry, like many industries, has
been transitioning to lower-GWP refrigerants over time and will
continue to do so consistent with the GWP limits and compliance dates
in the 2023 Technology Transitions Rule. EPA acknowledges the concerns
raised by some entities within the supermarket industry regarding the
available supply of reclaimed refrigerants that will also be compliant
with the 2023 Technology Transitions Rule's GWP threshold for new
supermarket systems. EPA notes that it is not, at this time, finalizing
requirements for the initial fill of refrigerant-containing equipment
to be done with reclaimed HFCs. Therefore, the Agency is not responding
to comments on initial charge in this final rule.
In prior responses in this section, EPA noted the importance of
reclaimed HFC refrigerant to support the continued operations of
existing equipment, including certain older supermarket systems. The
Agency agrees that existing market dynamics and other regulatory
drivers may incentivize the use of reclaimed refrigerants over time,
but disagrees with the conclusion that those possible incentives mean
this requirement is unneeded. Congress put particular weight on
reclamation in subsection (h) of the AIM Act, directing EPA in
subsection (h)(1) to promulgate certain regulations, where appropriate,
for purposes including maximizing reclaiming. Subsection (h)(2)(A) of
the Act further provides that the EPA Administrator ``shall consider
the use of authority available under this section to increase
opportunities for the reclaiming of regulated substances used as
refrigerants.'' This requirement is consistent with both of these
provisions. Moreover, even assuming that market dynamics or
implementation of other programs lead to some additional reclamation
and use of reclaimed refrigerant over time, the commenters do not
provide any reason to think that those factors alone would ``maximize''
reclamation. It is the Agency's view that the regulatory programs
established under the AIM Act work in conjunction with each other and
implementation of each is necessary as HFCs are phased down, and the
reclaim requirements established in this action will help increase
reclamation and support additional recovery of HFC refrigerants, as
discussed in another comment response in this section. To the extent
that the comments intend to suggest that EPA should provide a
particular type or amount of information related to each regulatory
provision's effects on increasing reclamation or reducing releases, EPA
disagrees. As explained earlier in this preamble, as EPA interprets the
statutory text in subsection (h)(1), the suite of regulations
established under subsection (h)(1) of the Act, taken together, are
focused on serving the three purposes identified in subsection (h)(1),
but individual regulatory provisions under subsection (h)(1) need not
each connect to all three purposes. This interpretation is integral to
establishing an effective regulatory program, as some regulatory
provisions
[[Page 82773]]
that might be considered under (h)(1) may be highly efficacious at
addressing one of the regulatory purposes but not address the other
two, or alternatively, may be important to support the functioning of
the regulatory program as a whole, but not be focused on any of the
identified purposes.
The Agency does not agree with the comments that requirements for
reclaimed refrigerants by subsector are market manipulation. Entities
within in these subsectors are able to purchase reclaimed HFC
refrigerants from whichever supplier or reclaimer they choose, just as
they could for virgin refrigerants. EPA discusses the estimated demand
and supply of reclaimed HFCs for the affected RACHP subsectors in
greater detail in other comment responses in this section, but notes
here that EPA estimates that the supply of reclaimed HFCs will be
sufficient for the demand anticipated for the servicing and/or repair
of refrigerant-containing equipment in the affected RACHP subsectors.
The Agency also describes elsewhere in this preamble that reclaimed
HFCs are required to meet the same purity standards as virgin HFCs and
must be verified to meet those standards by specified analytical
methods. Thus, entities within the supermarket systems, refrigerated
transport, and automatic commercial ice makers subsectors can continue
to purchase refrigerants for servicing and/or repair of equipment.
Further, as EPA explains in another comment response in this section,
EPA is not aware of market data or trends signifying that reclaimed
HFCs are more expensive than virgin HFCs. The Agency received a comment
on its NODA (87 FR 62843, October 17, 2022) stating that prices for
reclaimed HFCs and virgin HFCs are generally equivalent.\99\
Nonetheless, for conservative purposes, the analysis in the Economic
Impact and Benefits TSD assumes a ten percent premium for reclaimed
refrigerant, and we also included a sensitivity analysis where costs
are equivalent. With these considerations, the Agency does not view the
subsector approach as market manipulation.
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\99\ See comment number EPA-HQ-OAR-2022-0606-0009.
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Further, these requirements are a reasonable approach to
implementing aspects of subsection (h)(1). Among other things,
subsection (h)(1) of the AIM Act directs the Agency to establish
regulations to control, where appropriate, practices, processes, or
activities regarding the servicing or repair of equipment that involves
a regulated substance or the reclaiming of a regulated substance used
as a refrigerant. EPA interprets subsection (h)(1) to authorize this
type of provision to require reclaimed HFCs in the servicing and/or
repair of certain equipment in certain subsectors. The requirements in
this rulemaking to control the servicing and/or repair of certain
refrigerant-containing equipment are within this authority and support
the purpose of maximizing reclaim of HFCs. Further, EPA's decision to
apply these requirements only to refrigerant-containing equipment in
particular RACHP subsectors is based on consideration of where such
controls are ``appropriate,'' as the availability of reclaimed HFCs may
not be prepared to support such requirements for all existing RACHP
equipment by the compliance date. By requiring that servicing and/or
repair of certain refrigerant-containing equipment be done with
reclaimed HFCs by a certain time frame, these requirements provide some
predictability in the market, which is expected to encourage efforts to
increase capacity for reclamation and support recovery of HFCs.
Comment: EPA received many comments regarding the availability of
the supply of reclaimed refrigerant to meet the required uses of
reclaimed HFC refrigerant as proposed. A few commenters claimed that
the reclaim rate will not increase to meet demand and that EPA has not
provided sufficient data to support the availability of necessary
reclaim material for the regulated sectors. The commenters stated that
even if HFC reclamation continued to grow at 38 percent every year,
supply would barely provide half of the quantity needed in 2028. One
commenter stated that not enough recovery machines are sold in the
United States to support the reclaim mandate, thus leading to
insufficient refrigerant recovery and reclamation. The commenter
claimed that this resulting refrigerant shortfall will drive up costs.
Another commenter noted that the inadequate supply of reclaimed gas
would mean that the reclaim mandates are consequently unlikely to be
practical, achievable, or enforceable. Another commenter was skeptical
that enough reclaimed refrigerant will be available in the market by
2028 and claimed that the rulemaking record does not support that a
sufficient quantity will be available. One commenter stated that only
four percent of 2022 demand for R-410A was reclaimed in 2022. The
commenter further stated that new systems need to be installed in order
to realize the transition to lower-GWP refrigerants and that there will
be a lack of recovered refrigerant from new technologies using lower-
GWP refrigerants until equipment approaches retirement. The commenter
also claimed that including equipment meeting Technology Transitions
GWP limits would complicate the reclamation process. The commenter
claimed that this approach is consistent with the statutory design of
the AIM Act by allowing the phasedown to move at its prescribed pace
while accommodating sector and subsector-specific restrictions and
avoiding potential disruptive market effects. Another commenter stated
that current low recovery and reclamation volumes and a lack of market
readiness do not support establishing reclaim mandates but, if EPA
proceeds, such requirements should require use equal to reasonable
market supply projections. Another commenter stated the challenge of
obtaining a sufficient amount of recovered refrigerant available to
reclaim and stated that any provisions to minimize releases should be
balanced such that adequate supply of refrigerant is available.
A couple of other commenters stated that EPA has not evaluated
reclaim availability on a sector-specific basis, instead, assuming that
the availability for each reclaimed HFC will increase consistently
across all HFC blends. The commenters stated that EPA needs to look at
HFC blends in each sector because certain blends are hard to recover
and are end-use specific. The commenters stated that R-404A and R-507
are two examples of refrigerants that are difficult and expensive to
reclaim and that many reclaimers cannot reclaim these blends or would
choose not to, leading to insufficient supply and refrigeration
problems.
Another commenter expressed concerns regarding the future market
availability and price of certified reclaim such as that of R-410A
because there are no ``drop in'' substitutes to replace it. The
commenter stated that this is very different from EPA's most recent
2010 refrigerant transition in the stationary air conditioning and heat
pump market where there were alternatives for HCFC-22; thus, industry
had options that they do not have in this transition. The commenter
noted this could create unforeseen shortages unless EPA takes actions
to ensure reclaim mandates are based on actual data and are focused on
the service market. The commenter expressed concerns that EPA's future
projected reclaim quantities will not be sufficient to meet actual
market demand for both initial charge as well as service/
[[Page 82774]]
aftermarket demand and thus encouraged EPA to focus on the service/
aftermarket and remove the initial charge mandates from the proposed
rule.
Another commenter stated that the challenge of providing sufficient
reclaimed HFCs to maintain HVACR systems is not the reclamation
capacity of reclaimers but rather obtaining sufficient recovered HFCs.
The commenter claimed that regulations increasing demand for HFCs or
adding costs to reclamation would exacerbate the situation. The
commenter pointed to the fact that most manufacturers have typically
mandated virgin refrigerants in new applications and that the reclaim
mandate in the proposed rule upends this. The commenter noted that some
in the industry anticipate that HFC availability will drop
significantly following the 2024 phasedown step of a 30 percent
reduction, motivating the use of less refrigerants. The commenter
stated that only one percent of the expected 2028 HFC market
requirements are currently recovered, that it is not clear how this
will satisfy the 85 percent requirement for new system charging, and
that consumers will still demand that systems function even if there is
insufficient supply. The commenter acknowledged that moving to
alternate refrigerants will take some pressure off the HFC demand but
stated that very little new A2L product is entering the market. The
commenter stated that ramping up significant transition by the end of
2024 looks to be very challenging and questioned whether there will be
enough relief in the HFC supply by 2028.
One commenter stated that contrary to EPA's suggestion in the
preamble to the proposed rule that HFC reclamation is increasing, the
reclamation sector is experiencing significant structural, market, and
regulatory challenges that have limited refrigerant reclamation's
growth in the United States over the past decade. The commenter
asserted that despite expectations of an increase in reclamation
volumes, the overall data indicate a decrease, with 2018 yielding 18.1
million pounds per year, and even with the slight rise in HFCs in 2022,
the total weight amounted to 15.4 million pounds for the same year.
However, the commenter also stated that this rule, once finalized and
implemented, could catalyze a substantial shift, resulting in the HFC
reclamation market growing tenfold by 2032. The commenter stated that
the reclamation volumes that EPA foresees are highly attainable by
2028, due to the effectiveness of the AIM Act hinging not on the
capabilities of U.S. reclaimers, but on overcoming structural barriers
in refrigerant pricing to establish a genuine circular economy for
refrigerants, where reclamation stands as the low-cost solution.
A few commenters suggested that EPA formulate alternatives to the
proposed reclaim provisions and align with more realistic expectations
and assumptions. Both commenters stressed the following two principles:
basing reclaim mandates on relevant data to ensure practicality and
phasing in reclaim mandates on a gradual basis. These commenters
recommended that EPA establish a process to review data on the
projected availability of reclaimed refrigerant and adjust requirements
for the following year as needed. One commenter recommended that EPA
use a data driven approach to set reclaim mandate requirements using a
lagging model where future mandate amounts depend on actual reclaim
production amount. The commenter stated that such a lagging model would
allow EPA to mandate higher reclaim if recovery rates increase but also
avoid market disruption. Two commenters recommended that EPA actively
engage with industry stakeholders to gather comprehensive data on
reclaim infrastructure capacity, available refrigerant types and
quantities, and market demand across different sectors to provide a
solid foundation for a more effective and efficient regulatory
framework. One commenter recommended that EPA revisit reclaimed HFC
data and adjust requirements based on real-world feasibility. Another
commenter stated that the Agency may consider other mechanisms within
its authority to increase reclamation. Another commenter urged EPA to
conduct further analysis on a refrigerant-by-refrigerant basis to
ensure there will be enough used refrigerant available for reclaimers
to process to support the volume of reclaim needed by January 1, 2028.
Another commenter suggested that EPA may wish to consider
collecting information on the total amount of refrigerant recovered
compared to the total amount purchased by various entities as well as
the percentage of the total amount purchased that is used for
installation of new equipment compared to the total amount used to top
up leaks. The commenter suggested that EPA may wish to interview CARB
and OEMs as to the successes and challenges associated with the R4
Program to learn from the largest experiment of its kind in the United
States, which appears to have resulted in an increase in R-410A reclaim
by as much as approximately 500 metric tons from 2021 to 2022. The
commenter noted that CARB allowed for an alternate compliance pathway
of ``Early Action'' to transition to a low-GWP refrigerant prior to
2025, meaning that not all OEMs were required to participate, which may
be reflected in the slight increase in reclaimed refrigerant reported
to EPA.
Response: EPA acknowledges these comments related to the supply of
reclaimed HFCs to support the requirements for the servicing and/or
repair of certain refrigerant-containing equipment with reclaimed HFCs
established in this rulemaking. EPA understands the need for increasing
recovery of refrigerants and ensuring that these refrigerants are
provided to reclaimers for subsequent reclamation. The Agency took
advanced comments on technician certification and in a future proposal
could consider the relationship between technician certification and
recovery. The Agency has taken into consideration, in this rule,
requirements for reclaimed HFCs and expects these regulations will
provide market signals that will support increased recovery of HFC
refrigerants becoming available for reclamation, and will support
reclaimers increasing the amount of reclaimed refrigerants available to
meet the increased demand. The Economic Impact and Benefits TSD does
not include increased recovery in the base case for this rule based on
the assumptions for that scenario; however, EPA did consider an
alternate scenario with increased recovery and anticipates that the
reclamation provisions could support increased recovery during
servicing or disposal where the refrigerant may otherwise have been
vented or released. EPA also acknowledges comments describing a need to
evaluate data related to the requirements for servicing and/or repair
of certain refrigerant-containing equipment with reclaimed HFCs. In
this rulemaking, EPA is making modifications to the proposed approach
and finalizing provisions based on additional consideration of these
challenges and needs, as described in the following paragraphs.
First, the Agency is not at this time establishing requirements for
the initial fill of refrigerant-containing equipment with reclaimed
HFCs. The Agency understands concerns related to reclaiming newer
refrigerant blends that are more recently being used in equipment and
comply with the restrictions established in the 2023 Technology
Transitions Rule. Because EPA is not finalizing the proposed
requirements for initial fill with reclaimed HFCs at this time, the
concerns in comments related to HFC
[[Page 82775]]
refrigerants used in the first fill of refrigerant-containing equipment
to comply with the 2023 Technology Transitions Rule are not implicated
in this final rule. The Agency also notes that it is not finalizing any
exclusions based on GWP for other provisions in this rule related to
servicing and/or repair of certain refrigerant-containing equipment
with reclaimed HFCs, as discussed in another comment response in this
section.
Second, under the requirements finalized in this rule, the
servicing and/or repair of refrigerant-containing equipment with
reclaimed HFCs covers a narrower scope of RACHP subsectors than in the
proposal. EPA is finalizing these requirements for supermarket systems,
refrigerated transport, and automatic commercial icemakers. EPA is not,
at this time finalizing these provisions for stand-alone retail food
refrigeration equipment; however, the narrower scope of the provisions
finalized in this rulemaking does not have much impact on EPA's
analysis of the supply of reclaimed refrigerants, given in part that in
many cases this equipment is hermetically sealed and less likely to
have field repairs in the same way as field-charged equipment. The
draft Economic Impact and Benefits TSD accompanying the proposal
estimated that demand for reclaimed HFCs in the servicing and/or repair
of refrigerant-containing equipment in the stand-alone retail food
refrigeration equipment subsector in 2028 was approximately 20 metric
tons, with about 80 percent being HFC-134a. EPA notes that the analysis
provided for the proposal did not take into account effects of the 2023
Technology Transitions Rule, as the rule was not yet finalized when
this proposal was issued. The 20 metric tons of reclaimed HFCs for
servicing and/or repair in the stand-alone retail food refrigeration
subsector is minor relative to the estimated demand for reclaimed HFCs
in the servicing and/or repair of the other three RACHP subsectors,
which was estimated at 12,168 metric tons. While not finalizing at this
time, the requirements for servicing and/or repair with reclaimed HFCs
in the stand-alone retail food refrigeration subsector only alleviates
a small amount of needed supply in 2029. EPA discusses anticipated
supply relative to estimated demand with the updated analyses in
another comment response and notes that anticipated supply is expected
to meet the estimated demand. Further, EPA is focusing these
requirements in the final rule on servicing and/or repair of certain
existing refrigerant-containing equipment that use HFC refrigerants
that are currently being reclaimed. EPA understands that a significant
portion of recovered and reclaimed refrigerants is sourced when
refrigerant is recovered at a piece of equipment's EOL. The types of
refrigerant-containing equipment affected by these provisions are those
that are currently existing and in-use; thus, the installed stock of
refrigerants to continue to support the useful life of these types of
refrigerant-containing equipment will be supported as older ones reach
their EOL. The Economic Impact and Benefits TSD accompanying this
rulemaking provides additional analysis of the existing stock of HFCs
by type of refrigerant-containing equipment. Accordingly, under the
provisions in this final rule, resources can be focused on providing
reclaimed HFCs for servicing and/or repair of existing refrigerant-
containing equipment in certain RACHP subsectors, where there is a
greater ability to obtain recovered refrigerants from equipment that is
at its EOL.
Third, EPA is delaying the compliance date for these provisions by
one year to January 1, 2029. This delay of the compliance date should
enable reclaimers to increase their supply of reclaimed refrigerants to
meet demand for servicing and or repair of equipment in the covered
subsectors. EPA notes this date aligns with the next major phasedown
step of production and consumption of virgin HFCs under the AIM Act,
when reclaimed HFCs will play an even greater role in supporting the
servicing and repair of existing equipment. Further, EPA is aware of
examples from reclaimers that are actively building capacity of
advanced separation technologies.\100\ EPA acknowledges comments
related to suggestions for phasing in these requirements; however, the
Agency is not finalizing such a method for these requirements, for the
reasons discussed in another comment and response in this section.
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\100\ A-Gas (2023). A-Gas Breaks Ground on Additional Market-
Leading Refrigerant Separation Technology. Available at: https://www.agas.com/news-insights/a-gas-breaks-ground-on-additional-market-leading-refrigerant-separation-technology/.
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Finally, EPA is establishing a discrete reporting requirement to
better understand the sale, distribution, and availability of reclaimed
HFCs in the subsectors covered in this rulemaking. As described in this
section, EPA is requiring reporting by reclaimers and distributors that
contain information on the volumes of reclaimed HFCs sold and intended
for servicing and/or repair of equipment in the covered subsectors. EPA
is establishing a two-time reporting requirement to gather this
information and better understand the landscape for reclaimed HFC
availability for these subsectors in 2026 and 2027 (reports must be
submitted by February 14, 2027, and February 14, 2028, respectively),
leading up to the compliance date of January 1, 2029. EPA notes that
the Agency will review this information and may consider proposing
changes to the requirements for reclaimed HFCs, if warranted.
EPA acknowledges the comments related to assessing particular
blends and subsectors as related to reclaimed HFC refrigerant
availability. EPA considered this in the report ``Analysis of the U.S.
Hydrofluorocarbon Reclamation Market: Stakeholders, Drivers, and
Practices,'' available in the docket for this rule and evaluated the
anticipated demand of HFCs in the covered subsectors. Among the covered
RACHP subsectors in this rule, the most anticipated demand HFC and HFC
blend refrigerants are HFC-134a, R-404A, R-407A, and R-507. Related to
R-404A and R-507, the Agency understands the uses of these particular
blends in each of the covered subsectors of this rulemaking. Even if
the commenters were correct about the current costs and difficulties
sourcing these refrigerants today, EPA notes that these blends are
currently being reclaimed, and the Agency anticipates this rulemaking
to provide market signals to reclaimers to increase reclamation of
these blends and secure additional recovered materials. Similarly, EPA
anticipates those recovering HFCs from equipment will be aware of
reclaimers' increased need for such materials and will increasingly
develop arrangements to provide recovered HFCs to reclaimers. R-404A,
in particular, has had a steady volume of reclamation between
approximately 400,000 and 500,000 pounds each year from 2017 to 2022
with a larger increase upwards of 800,000 pounds in 2023.\101\ While
specific data on R-507 reclamation are not published, reclamation
volumes of R-507 between 2017 and 2023, as reported to EPA, have been
steady between approximately 40,000 and 130,000 pounds each year. EPA
reiterates that the Agency is only finalizing requirements for the
servicing and/or repair of refrigerant-containing equipment to be done
with reclaimed HFCs in a limited number of RACHP subsectors.
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\101\ Available at: https://www.epa.gov/section608/summary-refrigerant-reclamation-trends.
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The Economic Impact and Benefits TSD estimates that approximately
12,168 metric tons (26.8 million
[[Page 82776]]
pounds) \102\ of reclaimed HFCs will be needed to meet this demand in
2029 and that this amount will decline in future years due to the
transitions to lower-GWP refrigerants under the 2023 Technology
Transitions rule. The Agency anticipates increased rates of reclamation
of recovered refrigerants as the phasedown continues. EPA also notes
that there are several options available to reclaimers, including
reclaiming the blends themselves, reclaiming individual HFCs that can
be combined to form specific blends, and separating blends into
individual components to meet demand of specific refrigerants. EPA also
notes that in some cases, reclaimers may plan to stockpile recovered
HFCs ahead of the AIM Act phasedown milestone in 2029. Stockpiling both
virgin and reclaimed refrigerants ahead of phasedown steps has been a
common practice both with regards to the ODS phaseout and thus far with
implementation of the HFC phasedown.
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\102\ This estimate is based only on demand and does not take
into account that reclaimed refrigerants may contain up to 15
percent virgin HFCs, by weight. See Appendix D in the Economic
Impact and Benefits TSD for more information.
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EPA does not assume that all HFCs are recovered and reclaimed. For
example, some HFCs are used in other sectors, such as foams or
aerosols, where the HFCs are not typically recovered or their use is,
by nature, emissive, respectively. Further, HFCs in refrigerant-
containing equipment may leak, reducing the amount that is recoverable
at the piece of equipment's EOL. In the Economic Impact and Benefits
TSD, EPA estimates in 2029, that the amount of HFC refrigerants
available to be recovered (after accounting for the factors above) from
refrigerant-containing equipment will be 35,458 metric tons (78.2
million pounds). If all HFC refrigerants available for recovery in
refrigerant-containing equipment are in fact recovered and reclaimed,
EPA notes that this amount represents nearly three times the estimated
servicing demand of reclaimed HFCs for refrigerant-containing equipment
in the affected subsectors in 2029. However, even if a substantially
lower share (e.g., approximately one third) of what is available for
recovery in a given year is actually reclaimed, sufficient amounts of
reclaimed refrigerant would be available to meet the rule's
requirements. Further, this assessment does not consider the amount of
recoverable HFC refrigerants that are available in the years leading up
to 2029. EPA understands that it is common practice for reclaimers to
stockpile recovered refrigerants and reclaim them when most efficient
or opportune. Thus, EPA anticipates that reclaimers will be securing
sufficient amounts of recovered HFC refrigerants to reclaim to meet the
estimated demand in 2029. EPA also expects that the HFC reclamation
market will increase in future years as more refrigeration and air
conditioning equipment using HFC refrigerants reach their EOL, and more
HFCs are potentially available for recovery and reclamation. CAA title
VI prohibited the use of HCFC-22 in new air conditioning and
refrigeration equipment starting in 2010, facilitating manufacturers to
transition to use ODS substitutes--including, HFCs. That market shift
nearly 15 years ago means that today we are just starting to see
certain HFC-containing equipment reach its EOL. Going forward, we will
see an increased amount of HFC-containing equipment reach its EOL,
which will impact the amount of HFCs available for recovery. EPA also
notes that the Agency is establishing a two-time reporting requirement
to gather information and better understand the landscape for reclaimed
HFC availability for the affected RACHP subsectors in 2026 and 2027,
leading up to the compliance date of January 1, 2029. The Agency will
review this information and may consider proposing changes to the
requirements for reclaimed HFCs, if warranted.
EPA notes that the amount of reclaimed HFCs increased over 40
percent from 2021 to 2022 and increased a further 20 percent from 2022
to 2023.\103\ These year-over-year increases may suggest that the
reclamation market for HFCs is continually becoming more robust. EPA
included an analysis of recent trends in reclamation totals and
anticipated growth related to the requirements in this final rule in
the report available in the docket of this action, Analysis of the U.S.
Hydrofluorocarbon Reclamation Market: Stakeholders, Drivers, and
Practices. The analysis finds that even assuming a linear and
conservative growth trajectory, reclamation totals approach the
expected demand for 2029. However, EPA notes that reclamation totals in
reality are unlikely to follow a linear growth trend, and that growth
in capacity may increase at a significantly higher rate due to the
provisions in this rule and other factors, such as new reclamation
facilities coming online.\104\ EPA notes that the year-over-year
increases in 2022 and 2023 are absent additional regulations to
maximize reclamation, which this rule is establishing. EPA also notes
that the phasedown may have had some effect on this increase; for
example, the increases in reclamation data as reported to EPA in 2022
and 2023 were likely linked to overall awareness and reaction to the
AIM Act and, more recently, the increase in 2023 may be in anticipation
of the phasedown step in 2024. These effects may be observed as related
to the overall phasedown; however, the regulations established in this
rule are necessary to maximize reclamation of HFCs throughout the
course of the phasedown and beyond. EPA also notes, as stated above,
that the Agency is establishing a two-time reporting requirement to
gather information and better understand the landscape for reclaimed
HFC availability for the affected RACHP subsectors in 2026 and 2027,
leading up to the compliance date of January 1, 2029. The Agency will
review this information and may consider proposing changes to the
requirements for reclaimed HFCs, if warranted.
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\103\ Available at: https://www.epa.gov/section608/summary-refrigerant-reclamation-trends.
\104\ A-Gas (2023). A-Gas Breaks Ground on Additional Market-
Leading Refrigerant Separation Technology. Available at: https://www.agas.com/news-insights/a-gas-breaks-ground-on-additional-market-leading-refrigerant-separation-technology/.
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EPA also acknowledges comments related to outreach and engaging
with industry stakeholders to gather data and information. As noted in
section IV.E, EPA provided multiple opportunities for engagement for
this rulemaking. Among those opportunities include the publication of a
NODA with a public comment period, a public stakeholder meeting, and a
public webinar. Further, EPA provided notice and an opportunity for
public comment on the proposed rule, and has considered those comments
in this final rule, as appropriate.
Regarding the commenter's statement that allowance use for virgin
HFCs could potentially shift to other subsectors as requirements for
reclaimed HFCs come into effect for the subsectors covered in this
rulemaking, EPA responds that as the phasedown continues, EPA
anticipates market shifts that could include changes in the production
and consumption of certain HFCs and changes in the use patterns with
reclaimed HFCs replacing virgin HFCs. EPA further notes that under the
phasedown schedule established in subsection (e)(2)(C) of the Act, in
the last step of the phasedown HFC production and consumption
allowances equal to 15 percent of the
[[Page 82777]]
respective baselines will continue to be available indefinitely. The
Agency assumes applications that are difficult to transition and/or
applications requiring higher purity HFCs may continue to require
virgin HFCs into the future. While the Agency acknowledges that there
will be shifting business practices given the HFC phasedown, the 2023
Technology Transitions Rule, and this final rule that will increase the
reliance on reclaimed HFCs especially for servicing RACHP and fire
suppression equipment, there are business practices including patents
and licensing arrangements that could affect the ability of certain
reclaimers to supply certain customers with reclaimed HFCs. The Agency
anticipates that as patents expire and licensing arrangements expand,
these limitations will lessen. EPA reiterates that the requirements in
this rule only apply to servicing and/or repair of refrigerant-
containing equipment with reclaimed HFCs in three RACHP subsectors.
Further, the compliance date for these requirements is January 1, 2029,
which should give industry sufficient time to adjust current business
practices.
EPA acknowledges the concerns of the commenters regarding
challenges facing the reclamation industry and the Agency responds that
several of the provisions established in this rulemaking are designed
to support increased reclamation. These provisions focus specifically
on the maximizing of reclaiming HFCs, consistent with one of the
purposes identified in subsection (h)(1) of in the AIM Act. Per
reported data for reclaimed refrigerants, the total amount of reclaimed
refrigerant (ODS and HFCs) was 14.7 million pounds in 2018 and 14.2
million pounds in 2022.\105\ The commenter is correct that the total
amount was reduced, considering both ODS and HFCs together. However, as
noted, this rulemaking is focused on increasing reclamation of
regulated substances (i.e., HFCs), and HFC reclamation increased from
5.25 million pounds in 2018 to 7.6 million pounds in 2022, an increase
of over 40 percent. EPA anticipates this trend to increase related to
the provisions established in this rulemaking as well as the overall
phasedown and increasingly limited supply of virgin HFCs.
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\105\ Available at: https://www.epa.gov/section608/summary-refrigerant-reclamation-trends.
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EPA acknowledges the comment on collecting information on amount of
refrigerant recovered. The information suggested by the commenter
related to total refrigerant recovered to compare to the amounts
purchased by entities (identified by use in first fill, servicing,
etc.) may be useful to understanding trends in refrigerant recovery.
Such data may also be helpful in understanding how refrigerant is
recovered and recycled in equipment (whether it be the same piece of
equipment or another piece of equipment under the same ownership).
However, EPA did not propose such information collection, which would
require additional reporting by various entities in the supply chain,
and notably, reporting from certified technicians performing the actual
recovery and servicing and/or repair activities. Further, EPA
recognizes the important role technicians play in recovering
refrigerant destined for reclamation and that it may be useful to have
such information collected; however, the Agency did not propose and is
not finalizing recordkeeping or reporting requirements for certified
technicians to collect information on the total refrigerants they
recover in this rulemaking. However, the Agency notes that it may
consider proposing information collection requirements on recovered
refrigerant, such as recordkeeping and reporting for technicians on the
amount of refrigerant recovered in a future rulemaking. For example,
this suggestion could warrant additional consideration in a potential
future rulemaking where the role of technician certification programs
is considered more fully.
EPA notes that under current reporting for certified reclaimers per
40 CFR 82.164, reclaimers are required to report on the annual totals
of refrigerants they receive. EPA notes the value of reporting on a
more granular level, however. As noted previously in this response, EPA
is establishing discrete reporting requirements to better understand
the availability of reclaimed refrigerants in the covered subsectors
prior to the compliance date for these requirements.
The Agency also notes that in issuing the proposed rule and
reviewing comments in development of this final rule, we reviewed
information on the R4 Program, including a review of the State agency's
statement of reasons related to establishing such a program. EPA found
this to be a useful source of information. EPA notes that the data
presented by the commenter alluding to the increase in R-410A
reclamation from 2021 to 2022 reference EPA's published data on
reclamation totals as reported under EPA's CAA section 608
regulations.\106\ The total increase in R-410A reclamation from 2021 to
2022 was approximately 1.04 million pounds (520 tons). While this
increase was greater than previous years' trends, EPA did not
explicitly discuss with CARB the use of the early action pathway
related to the State's R4 Program. This program may have contributed to
the increase in reclamation of R-410A from 2021 to 2022; however, the
Agency is also aware that reclaimers have been building additional
capacity and notes that increased reclamation could also be a result of
other factors, such as the progression of the HFC phasedown. For
example, the reclamation of HFC-134a also saw a significant increase
from 2021 to 2022 of approximately 473,000 pounds (237 tons). Further,
the CARB R4 Program is applied at the State level and this rulemaking
applies at the national level and thus, considers the availability of
reclaimed HFCs nationwide. Entities may choose to service and/or repair
their refrigerant-containing equipment with reclaimed HFCs prior to the
compliance dates. The compliance dates for this rule were informed by
analysis (e.g., assessing the estimated demand of reclaimed HFCs) and
consideration of comments received on the proposed rule, and they allow
the reclamation industry to provide sufficient supply for servicing
and/or repair of refrigerant-containing equipment in the affected RACHP
subsectors with reclaimed HFCs. With these considerations, the Agency
is not establishing an early action option for compliance at this time.
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\106\ Available at: https://www.epa.gov/section608/summary-refrigerant-reclamation-trends.
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Comment: One commenter noted that the reclaim industry has already
reached a large scale of reclaimable refrigerant even though there was
no Congressional mandate to reclaim this product and the public was
generally unaware of the negative environmental effects associated with
HFC refrigerant emissions. The commenter stated that EPA can meet its
100 percent reclaim usage goals through rapid scaling of recovery rates
for HFC refrigerants under the AIM Act which has already given HFCs
high economic value. The commenter suggested that the refrigerant in
the installed base aftermarket and in equipment approaching its EOL
will both coincide well with recovery opportunities. The commenter
stated that the servicing sector, specifically the contractors, is the
only real material source for increasing the amount of reclaimed
refrigerants, which if recovered more consistently will lead to the
corresponding growth in reclamation necessary for an orderly transition
under the AIM Act. The commenter also
[[Page 82778]]
noted that mandating reclaimed HFCs in the servicing sector would
encourage more recovery by contractors and that this approach
incentivizes contractors to provide more recovered refrigerant to
reclaimers to ensure access to reclaimed refrigerant to service
consumers' needs.
Response: EPA acknowledges this comment. EPA agrees that scaling up
HFC refrigerant recovery and reclamation may become increasingly
important, particularly as a business strategy, as HFCs are phased down
and appreciates efforts that have already been made, including those
made prior to the enactment of the AIM Act. EPA acknowledges the role
of the technicians and contractors in the overall recovery of
refrigerant, especially as equipment reaches its EOL. The Agency is
aware of a range of programs, including those with incentives, that
have been used by OEMs and reclaimers to support recovery of
refrigerants.
Comment: One commenter stated that requiring reclaimed HFCs for
servicing is largely untrialed in the United States and needs gradual
testing and iteration. The commenter mentioned that California is
currently in the first year of implementation of its R4 Program, which
requires OEMs for residential AC and VRF systems to use specific
calculated reclamation volumes in 2023 and 2024. The commenter noted
that since the inaugural year of the program has not yet concluded,
comprehensive data and conclusive findings regarding the program's
efficacy and success are currently unavailable to the broader
stakeholder community to inform the formulation of a national reclaim
requirement rule.
Response: EPA disagrees that reliance on reclaimed refrigerants is
untrialed in the servicing sectors. As discussed elsewhere in this
final rule, the Agency notes that since 2020, reclaimed HCFC-22 is the
only viable option for servicing legacy HCFC-22 systems. Similarly, for
the CFC systems, this has been the case since the 1990s. The Agency
also notes that the amount of reclaimed HFCs has been reported annually
to EPA since 2017 and that the amount has been increasing. Reclaimers
are selling reclaimed HFCs and competing with virgin HFCs in many
markets particularly for servicing certain RACHP and fire suppression
equipment. The Agency proposed and is finalizing a program that is
markedly different from the R4 Program. Further, the Agency will be
interested in any data California will be able to share; however, the
Agency does not need those data to finalize a reclamation program under
subsection (h).
Comment: Many commenters discussed the demand and supply of
relevant refrigerated blends for servicing, especially R-410A. One
commenter stated that EPA's mandate for reclaimed HFCs, when combined
with the 2023 Technology Transitions Rule, will likely drive perverse
commercial practices to meet this demand because companies will be
incentivized by EPA's rules to take usable, reclaimed R-410A and
separate out the HFC-32 from the HFC-125 in order to make reclaimed
HFC-32. The commenter claimed that not only would this be
counterproductive to meeting demand for reclaimed R-410A service gas
for that equipment base, but it would also require unnecessary energy
consumption from the distillation process. In addition, the commenter
stated that the stranded HFC-125 ultimately would simply be re-blended
with virgin HFC-32 to make R-410A to be sold to subsectors that are not
subject to the reclaim mandate, creating a repetitive and unproductive
loop.
Additionally, a commenter stated that separating individual HFC
refrigerants from recovered refrigerant mixtures, such as R-410A, R-
404A, and the R-407 series, is not necessary because the demand for
such reclaimed refrigerant mixtures particularly for service will be
high and would in fact be an environmental detriment due to the high
energy consumption required for the separation process.
An additional commenter stated that the HFC market would be
disrupted by the requirements described in the NPRM and noted that
reclamation currently services at best less than nine percent of the
expected 2028 demand. The commenter additionally stated that the
proposed rule does not explain how the reclamation industry will
achieve the necessary growth and that even achieving growth at a rate
of 38 percent (i.e., the growth from 2021 to 2022) would not supply a
sufficient quantity of reclaimed HFCs. The commenter claimed that the
disconnect between supply and demand would be even wider than this
because of highly mixed refrigerants, which require advanced fractional
distillation, technical expertise, and high capital costs. The
commenter provided an example for HFC-32, estimating that HFC-32
reclamation in 2022 represented 2.4 percent of what will be needed in
2028. The commenter further claimed that, given that HFC-32 units will
not be available to be reclaimed in significant quantity for 15-20
years, reclaimers may try to reclaim mildly flammable HFC-32 from R-
410A. The commenter noted that R-410A is azeotropic and therefore
requires significant energy to separate, that it requires investments
in equipment due to HFC-32's mild flammability, and that there would
only be a limited market for the HFC-125 that remained. The commenter
concluded that there is therefore a mismatch between HFC-32 demand and
supply of reclaimed material and that the weight of the reclaim
requirement would fall on the HFC-32 producer. Another commenter noted
that they currently use fractional distillation to separate HFC-32 from
recovered refrigerant blends to ensure purity that meets or exceeds the
AHRI 700 standard for the product. The commenter claimed that
sustaining adequate HFC-32 supplies to 2029 and beyond is crucial to
ensure equipment operation until the EOL because its GWP is below
certain thresholds established in the 2023 Technology Transitions Rule.
Another commenter claimed that EPA's reclaim requirements ignore
how refrigerant is recovered. The commenter stated that refrigerant is
recovered when equipment is replaced, retrofitted, or retired, and that
given the long lag times between when new equipment is installed and
when equipment is replaced or retired, the large increase in R-410A
reclamation that occurred from 2021 to 2022 could be due to R-410A
equipment that was installed in 2010 and reached its EOL, and that a
large annual increase in R-410A reclamation is not foreseeable based on
existing data. The commenter claimed that EPA should model reclaim
supply based on the installed base of refrigerants, estimated by yearly
turnover and estimated recovery efficiency. The commenter modeled the
R-410A installed base using AHRI shipment data for RACHP from 2008 to
2022 and provided an attachment with modeled data to support its
argument. The commenter used these data to assert that the growth in
reclamation of R-410A in 2022 was expected, because there was an
increase in new units using R-410A in 2010 compared to 2009.
Furthermore, the commenter stated that it considered the equipment mix
when factoring in future reclamation numbers of R-410A, as well as how
refrigerant is recovered.
Another commenter mentioned that the maximum amount of annual
``recoverable'' and subsequently ``reclaimable'' R-410A in 2022 would
be approximately 29,000 metric tons or 63 million pounds of R-410A and
that the amount of reclaimed R-410A reported to EPA by the reclaimers
in 2021 was 2.5 million pounds. The commenter stated it is abundantly
clear that there is great scope for improving recovery and reclamation
rates for HFCs that
[[Page 82779]]
would yield significant climate benefits resulting from preventing
those GHGs from being emitted into the atmosphere and reduce the need
for supplies of virgin HFCs. The commenter further noted that some may
argue that the small quantities of HFCs reclaimed today are evidence
that the reclamation market will not be able to meet the demand for
reclaimed HFCs under the proposed rule but stated that the current HFC
reclamation data reflect the absence of market drivers that will make
reclaimed HFCs a valuable commodity. The commenter stated that the
amount of R-410A reclaimed in 2022 is nearly 40 percent higher than the
previous year and that this is a clear sign that the start of the HFC
phasedown and the expectation of regulatory mandates for use of
reclaimed HFCs can lead to dramatic, positive shifts in the industry.
The commenter also stated that EPA may hear that scaling capacity for
advanced fractional distillation reclamation will take time, and that
splitting out component gases of azeotropic or near-azeotropic
refrigerant blends tends to use more energy than reclaiming blends like
R-410A back to their original form without separating out their
components. The commenter noted that this may be true; but there is
also good reason to encourage the development of a reclamation industry
that is capable of splitting mixed gases.
The commenter mentioned that new refrigerants favored by most of
the large OEMs are HFC-32 and blends using HFC-32 (e.g., R-454B). The
commenter stated that the main source of reclaimed HFC-32 will be
recovered R-410A, which is the refrigerant currently used in most RACHP
equipment, and that separating HFC-32 out from R-410A is feasible and,
if recovery is maximized, as is the intent of the proposed rule, there
will be a sufficient quantity of it available to meet the demand. The
commenter estimated that there will be a need for approximately 72
million pounds of recovered R-410A and that if recovery of R-410A from
retiring equipment is maximized, an estimated 63 million pounds of R-
410A would be recovered in 2022. However, the commenter noted that the
amount of recoverable R-410A will grow, since the number of retiring
systems grows just as the number of new systems does. The commenter
estimated the amount of recoverable R-410A in 2028 will be
approximately 70 to 74 million pounds, which will be sufficient for
meeting the demand for reclaimed HFC-32 in 2028. The commenter noted
that there might be challenges, but ultimately, the data suggest that
there is a tremendous untapped opportunity for upscaling HFC recovery
and reclamation in the United States.
Another commenter stated that 63 million pounds of recovered R-410A
could yield 31.5 million pounds of reclaimed HFC-32 for use in the
initial charge of new equipment using HFC-32 or other blends mainly
composed of HFC-32 and HFOs. The commenter noted that the R-410A
available from 2024 to 2027 would also supplement annual amounts
recoverable from 2028 onwards.
Another commenter stated that EPA's existing data support the
availability of sufficient refrigerant in the aftermarket to meet
service sector demand at 100 percent by 2028. The commenter suggested
that the total amount of refrigerant available for recovery at EOL is
likely in excess of 80 million pounds annually and that based on this
estimate, the amount of refrigerant available for recovery via service
is sufficient to meet the goals described in the proposed rule.
However, the commenter suggested that it will be difficult for EPA to
meet their reclaim goals without the consideration of an alternative
construction of the reclaim mandate as a servicing mandate based on
refrigerant types rather than sectors. The commenter noted that it
would be impossible to meet EPA's goal without focusing on the recovery
of R-410A, which is predominately used in small outdoor units.
Response: EPA acknowledges these comments and understands the
competing interests for reclaiming particular HFC blends as compared to
separating out and reclaiming particular components to be used either
neat or in other blends. EPA understands that the example of HFC-32 as
a component of R-410A is one of the more common scenarios. EPA notes,
as described in other responses, that we are finalizing requirements
for the servicing and/or repair of refrigerant-containing equipment
with reclaimed HFCs in certain RACHP subsectors. EPA is not
establishing requirements for initial charge with reclaimed HFCs at
this time, where the Agency anticipates a majority of HFC-32, blends
that include HFC-32, and other blends will be used in the coming years.
EPA acknowledges comments about supply of reclaimed HFCs and those
related to driving supply of reclaimed HFCs through the requirements
established in this rulemaking. The Agency also notes comments
providing specific detail on potential availability of reclaimed
refrigerants, and in particular of HFC-32 as sourced from recovered R-
410A, and the Agency understands that there is room for improvement in
the increase of refrigerant recovery to supply to reclaimers. EPA notes
that R-410A comprised about 39.2 percent of the existing installed
refrigerant stock by mass in 2022, while other blends such as R-404A,
R-407C, and R-507 also make up a significant portion of the 2022
installed refrigerant stock. Reclamation data, as reported to EPA, show
that R-410A is also currently the most commonly reclaimed HFC
refrigerant in the United States by weight. Annual reclamation data
reported to EPA indicates that the annual supply of reclaimed R-410A
has increased from about 2,100,000 pounds in 2017 to approximately
4,626,000 pounds in 2023.\107\ The Agency provides additional detail on
similar comments related to supply of reclaimed refrigerants and
provides a response earlier in this section. EPA understands that the
significant recent increases in R-410A reclamation could be attributed
to refrigerant-containing equipment with R-410A installed in the early
2010s reaching its EOL. The Agency expects this trend to continue, as
additional refrigerant-containing equipment with R-410A would be
expected to reach their EOL in the coming years as well.
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\107\ Available at: https://www.epa.gov/section608/summary-refrigerant-reclamation-trends.
---------------------------------------------------------------------------
The mix of refrigerants will change over time given the overall
phasedown of HFCs, the 2023 Technology Transitions Rule, business
decisions, and other factors including demand for more energy efficient
equipment. The reclaim requirements help to support the goal of
subsection (h) of the AIM Act to maximize reclamation. EPA understands
that it may be preferable at times for reclaimed R-410A and/or other
reclaimed refrigerant blends not separated to their components EPA
considers reclaiming and making available refrigerant blends to be one
way to avoid retiring equipment early. However, EPA also acknowledges
comments regarding increasingly available capabilities of reclaimers to
separate out components from refrigerant blends for individual
reclamation or to combine them so as to increase the available supply
of a different refrigerant blend. Over time, particularly as the
refrigerants used in equipment change, the Agency anticipates seeing
movement in this direction. The Agency anticipates that demand will
drive reclaimers' decisions concerning reclaiming a blend or separating
the blend for its components. EPA previously noted and agrees with
[[Page 82780]]
comments that HFC-32 reclamation by separating from recovered blends is
a current practice. The Agency further acknowledges the need for
reclaimers to address safety considerations when handling HFC-32, and
other mildly flammable and/or flammable refrigerants particularly if
reclaimers choose to use separation technologies. Further, the Agency
is establishing alternate RCRA standards for reclamation facilities
related to handling flammable refrigerants, as described further in
section IV.H of this rulemaking.
As noted, EPA is not establishing requirements for reclaimed HFCs
in the initial fill of equipment in certain subsectors in this
rulemaking. Therefore, subsectors that may be using HFC-32 or blends
that contain HFC-32 could source the refrigerant for initial charge
from either virgin or reclaimed supplies.
In the case that recovered R-410A is separated out to its
components for their individual reclamation, the Agency disagrees that
the HFC-125 would be stranded or only be used for reclaimed R-410A. EPA
notes that HFC-125 is used in other HFC refrigerant blends besides R-
410A. If HFC-32 reclamation is achieved through separation of recovered
R-410A, the remaining HFC-125 could be used in these other blends,
including R-404A, the R-407 series, or R-507, which are HFC blends the
Agency anticipates will be used in the covered subsectors for the
requirements for the servicing and/or repair of refrigerant-containing
equipment with reclaimed HFCs. HFC-125 is also a component of several
newer refrigerant blends and could be used in the those blends as well.
EPA responds to comments on establishing provisions related to
requirements for reclaimed HFCs on a refrigerant basis rather than a
subsector basis. The Agency notes that a subsector approach is
preferable in this rulemaking, as it avoids cases where there could be
shortages of particular reclaimed HFCs or HFC refrigerant blends. The
Agency has similarly looked at sectors and subsectors in other parts of
this rule (e.g., leak repair thresholds, ALD systems) and in other AIM
Act rules (e.g., 2023 Technology Transitions Rule). The Agency
considers this approach, sectors and subsectors as a means of setting a
level playing field for all participants in that affected sector or
subsector.
Comment: Multiple commenters expressed support for phased-in
reclamation requirements. One commenter expressed support for EPA's
proposed requirements but acknowledged that the supply of reclaimed
refrigerant will need to be scaled up quickly to meet the requirements
by 2028. To facilitate this transition, the commenter suggested that
EPA assist the industry by setting benchmarks and interim targets to
ensure that refrigerant recovery and reclamation will expand at the
pace and scale needed to support the HFC phasedown. Another commenter
strongly agreed with the principle behind requiring use of reclaimed
and recycled HFCs and was optimistic about the pace of change in the
recovery and reclamation industry. The commenter noted that the
benefits of a graduated schedule would outweigh greater reporting
requirements, but that the schedule should start sooner than 2028 and
ramp up to 100 percent by 2028. The commenter stated that it would be
important to boost reclaimed HFC availability before the 2029 HFC
phasedown step to fulfill HFC demand. Another commenter proposed using
reclaimed refrigerant in the servicing of equipment with the interim
goals of 10 percent in 2026, 20 percent in 2027, and 35 percent in 2028
and beyond. Other commenters recommended a gradual phase-in of reclaim
requirements based on data for the anticipated need of reclaim on a
yearly basis.
Another commenter stated that a gradual step-up/phased-in approach
is preferable to reach the 100 percent requirement goal in 2028 for
reclaim usage under the proposed rule and it would allow sufficient
reclaim supply growth to offset any shortage of available virgin HFCs
and avoid market interruption, which is needed for climate mitigation.
The commenter stated they expect HFC reclamation to continue to
increase and they urged EPA to adopt a step-up/phased-in approach to
incentivize HFC recovery and reclamation between now and 2028. The
commenter noted that a phased-in approach would incentivize the
necessary changed behavior by all involved, especially the contractors,
who will need to recover more refrigerants over time to meet the demand
for 100 percent reclaim in servicing and repair by 2028. The commenter
noted that larger charged systems in the sectors already included in
the proposed rule's service/repair mandate typically operate in
confined spaces and have greater recovery rates at EOL and servicing
when compared to smaller, outdoor systems. The commenter stated that
the types of refrigerant systems would include HFC-134a, R-404A, R-
407A, R-407C, and R-507 systems, among others. The commenter suggested
creating an initial reclaim mandate for servicing these systems
starting in 2025 with a lower percentage of 25 percent and then
building the requirement overtime to meet the 100 percent reclaim
mandate in the proposed rule by 2028. The commenter expressed support
for requiring the contractors to report that they are purchasing the
proper amount of reclaimed refrigerant as defined in the proposed rule
at a minimum on an annual basis to ensure compliance with this mandate.
The commenter suggested that servicing of R-410A systems with reclaimed
refrigerant might need a slightly longer ramp-up period due to the
behavioral change necessary for the contractors that service these R-
410A systems. The commenter also suggested a 10 percent mandate for
servicing these systems in 2025, increasing to 25 percent in 2026 and
then continuing to increase to a 100 percent mandate by 2028.
Another commenter suggested a phased approach for reclaimed HFCs
with initial targets based on data and industry feedback to incentivize
reclaimed HFC use, which the commenter maintained would better align
with the manufacturing process and supply chain realities of both
equipment and reclaimed HFCs. The commenter encouraged EPA to revisit
the reclaimed HFC data and adjust its approach based on real-world
feasibility, considering existing supply chain disruptions and rising
costs. The commenter recommended initially prioritizing the reclaim of
high-GWP refrigerants and allowing the market to adjust and around 2028
revisiting the need for low-GWP reclaim requirements based on market
adoption, performance, technological advancements, and feasibility,
starting with 2036 as a potential timeframe.
Two commenters noted that to the extent that EPA adopts a phased-in
schedule for these mandates, it should be sector neutral (not sector
specific) and differentiated where necessary only on a product-by-
product basis. Another commenter noted the reduced HFC supply under the
AIM Act step-down and 2023 Technology Transitions Rule and suggested a
phased approach that would be coordinated with the 2023 Technology
Transitions Rule. The commenter also noted that only a small fraction
was reclaimed in 2022 and that significant changes would be required to
the entire supply chain to ensure sufficient recovery and reclaim
quantities, which takes time.
One commenter noted they would not support a phased approach
whereby EPA uses subsector percentages to work
[[Page 82781]]
gradually towards 100 percent use of reclaimed HFCs in servicing and/or
repair, given the administrative burdens necessary to track and verify
compliance that are stated in the proposed rule.
Response: EPA is not establishing a phased-in approach for the
requirements for reclaimed HFC refrigerant, though the Agency
encourages affected entities to consider increased reliance on
reclaimed HFCs ahead of the compliance date. As described above, EPA is
finalizing requirements that the servicing and/or repair of
refrigerant-containing equipment in three RACHP subsectors be done with
reclaimed HFCs with a delayed compliance date of January 1, 2029, but
is not at this time finalizing either the proposed requirement for
servicing and/or repair with reclaimed HFCs in a fourth subsector or
the proposed requirement for the initial fill of refrigerant-containing
equipment to be done with reclaimed HFCs. The Agency understands the
industry identified certain potential benefits to a phased-in approach
with limited data to support this approach. The Agency is instead
establishing a discrete reporting requirement to better gauge the sale,
distribution, and availability of reclaimed HFC refrigerants in the
subsectors required to service and/or repair refrigerant-containing
equipment with reclaimed HFCs. EPA intends to use these reported data
to better assess transitions to reclaimed HFCs in these subsectors and
may consider revisiting the timing for the provisions for servicing
and/or repair of certain refrigerant-containing equipment with
reclaimed HFCs prior to the compliance date, if warranted. While EPA
intends to use this reporting to better understand the landscape of
reclaimed HFCs in these subsectors, the Agency disagrees with
commenters that suggested delaying the timing beyond 2029 (e.g.,
starting in 2036). Reclaimed HFC refrigerants are already being used
and will increasingly play a significant role throughout the entire
phasedown, not starting when the phasedown reaches its final step in
2036.
EPA agrees with the importance of increased recovery of
refrigerants to support additional reclamation and potential need for
changes related to this practice. The provisions in this rulemaking are
expected to drive demand for additional recovery. Recovery and sending
recovered refrigerants to reclaimers is likely to increase as the value
of the recovered HFC refrigerants is more widely appreciated, HFC
equipment reaches its EOL, and a reduced amount of virgin HFCs is
available as the HFC phasedown continues. EPA notes that many of the
transitions to R-410A occurred in response to the 2010 HCFC phasedown
step and associated restrictions on the use of HCFC-22 in new
equipment. This means that a large amount of R-410A-containing
equipment is approaching an expected EOL and this equipment will
increasingly be a source of recoverable R-410A. Moreover, EPA disagrees
that a required phased-in approach is necessary to cause a shift in
behavioral changes and would be more effective than having the
requirement begin at 100 percent for reclaimed HFCs in the servicing
and/or repair of refrigerant-containing equipment in the covered
subsectors.
EPA is establishing the requirements for servicing and/or repair of
refrigerant-containing equipment with reclaimed HFCs on a subsector
basis at this time. The Agency considered and is finalizing in this
rulemaking requirements to for servicing and/or repair of refrigerant-
containing equipment with reclaimed HFCs in three RACHP subsectors
after further evaluation and informed by comments on a range of
factors. Additional discussion on covering more subsectors and on
taking a subsector approach are covered in another comment response in
this section. The Agency is not establishing requirements for initial
fill of refrigerant-containing equipment with reclaimed HFCs in this
rulemaking. EPA acknowledged in a previous response on the challenge of
securing sufficient reclaimed HFC refrigerants where the refrigerants
have not been in the installed stock of equipment for sufficient time
and may take a number of years for adequate reclaimed refrigerant to be
available.
Comment: One commenter requested that EPA include a force majeure
or hardship clause in the rule should the mandated amounts of certified
reclaim not be available to regulated entities including OEMs because
without such a clause, OEMs and other regulated entities could fall
into non-compliance due to no fault of their own. The commenter also
requested that EPA provide a mechanism whereby a regulated authority
can appeal to EPA for relief should this situation occur. Another
commenter stated that the proposed stipulation to utilize recycled or
reclaimed substances poses a notable challenge, as the future
accessibility of these recycled or reclaimed materials remains entirely
uncertain. The commenter stated that complying with the requirement
might prove impractical and could result in significant operational
delays or business closures. In lieu of these explicit requirements,
the commenter strongly urged EPA to incorporate an alternative
compliance approach, contingent upon the regulated entity maintaining
documented evidence that the requisite recycled or reclaimed substances
are unavailable, necessitating the use of virgin products. The
commenter stated that this approach aims to offer flexibility in
situations where compliance with the primary requirement is unfeasible
due to material unavailability.
Response: EPA responds that the Agency is not establishing a force
majeure or hardship clause as described by the commenter in this
rulemaking. As noted in prior responses, EPA is only finalizing some of
the proposed reclamation requirements at this time, is delaying the
compliance date, and will use data to assess the uptake of reclaimed
HFCs ahead of the compliance date. EPA acknowledges comments related to
unforeseen events, which could affect operations at individual
facilities that may impact contractual arrangements. However, the
Agency does not agree with the need to provide any general regulatory
exceptions to remove liability for unforeseeable and unavoidable
catastrophes that interrupt the expected course of operations, though
the Agency recognizes that there may be value in regulated entities
including force majeure clauses in their contracts if the parties to
the contract believe such a clause is appropriate.
Comment: Multiple commenters commented on whether lower-GWP
refrigerants should be included in reclamation requirements for
servicing. Some commenters supported excluding refrigerants with GWPs
below the 2023 Technology Transitions thresholds from reclaim
requirements. One commenter proposed that EPA should focus on
refrigerants with GWPs that are above the GWP limits included in the
2023 Technology Transitions Rule for a final rule. The commenter noted
that this change would also focus recovery and reclamation activity on
the products with the highest GWP, where reclaim has the most
environmental benefit per pound of gas recovered. Another commenter
requested that EPA limit the reclaim servicing requirements to HFC
refrigerants that are restricted by the 2023 Technology Transition Rule
and not all HFCs regulated by the AIM Act. The commenter claimed that
many low-GWP HFCs will not be introduced until January 1, 2025, so
there will not be enough low-GWP HFCs recovered to generate enough
reclaim to use in service for these sectors. Another commenter stated
that reclaim mandates
[[Page 82782]]
on low-GWP refrigerants do not make sense because these are not in
widespread use. In contrast, a different commenter stated that EPA
should not exempt low-GWP refrigerants from reclaim mandates and that
having reclaim requirements for low-GWP refrigerants will benefit the
environment and create a more circular economy.
One commenter urged EPA to provide an exception for certain newer
and commonly used low-GWP refrigerants such as R-448A, R-449A, and R-
407A, stating that they are unlikely to be reclaimed in sufficient
quantity to satisfy industry needs, as these substances have only
recently started to be used in newly installed or retrofitted in
commercial refrigeration systems. The commenter noted that these
refrigerants are subject to patents held by their manufacturers; thus,
not all reclaimers can legally formulate their blends, which will
constrict supply. Another commenter suggested that the use of reclaimed
refrigerant for service and repair of existing supermarket
refrigeration appliances starting in 2028 should be limited to
refrigerants with GWPs greater than 1,500, if the reclaim mandate as of
2028 is pursued by EPA. Another commenter recommended that EPA prohibit
the use of virgin refrigerant for servicing equipment in supermarket
systems, cold storage warehouses, refrigerated transport, and automatic
commercial icemakers with a GWP greater than 2,200 beginning January 1,
2029, and with a GWP greater than 1,400 beginning January 1, 2034.
Another commenter proposed that a refrigerant supplied for
servicing in the applicable sectors that exceeds the established GWP
thresholds set forth in the 2023 Technology Transitions Rule could be a
specified percentage of reclaimed refrigerant, as determined by the
Administrator on an annual and gradually increasing basis. The
commenter suggested additional subsectors for consideration for
servicing and/or repair requirements with reclaimed refrigerants. An
additional commenter suggested EPA review market data and applicable
percentages for servicing using reclaimed refrigerant annually via a
notice and comment process. The commenter also suggested excluding from
servicing requirements any equipment containing a refrigerant with a
GWP below the applicable threshold established by the 2023 Technology
Transitions Rule.
Another commenter stated that the requirements for reclaimed HFCs
cause concerns regarding the excessive burden being placed on the
retail industry. The commenter expressed support for the need to
incentivize reclaimed refrigerant as a way to balance the decreased
supply of HFCs due to the decreased allocation of allowances; however,
the commenter expected the focus of reclaim to be on the refrigerants
that were not included as future options of the 2023 Technology
Transitions Rule. The commenter also expected the focus of the proposed
rule to be on the need to service existing equipment throughout its
natural lifetime.
One commenter added that heating, ventilation, and air conditioning
(HVAC) equipment typically has a lifespan of around 10-15 years, and
refrigerant recovery is very limited during this time, with recovery
only possible during maintenance and repair work. Therefore, the
commenter asserted that after the transition to low-GWP refrigerants in
2025, these low-GWP refrigerants must not become the focus of recovery
efforts until 2035 to 2040. The commenter stated that until then, the
refrigerant contained in the already installed equipment will be the
dominant part of the recovery work. The commenter stated that in the
domestic and commercial HVAC sector, R-410A is the main target for
recovery as there are no refrigerants below GWP 700 on the market.
Therefore, the commenter suggested that it is substantially infeasible
to obtain reclaimed refrigerants with a GWP of 700 or less as of 2028.
One commenter stated that there should be no exemptions for newer,
lower-GWP refrigerants (such as HFC-32, R-454A/B, R-448A, R-449A, R-
450, R-456A, R-444A, or others). Another commenter claimed that there
is not enough HFO refrigerant available to support the service and new
equipment market and recommended that reclaimed HFC and HCFC makes
sense for 2028. The commenter requested further specificity regarding
the statement requiring reclaimed refrigerant for repair and servicing.
Response: EPA acknowledges these comments concerning the GWP of
refrigerants and basing the provisions for the requirements for
reclaimed HFCs with this consideration. Further, EPA understands
commenters' suggested rationale of considering reclaimed refrigerant
requirements related to GWP limits established in the 2023 Technology
Transitions Rule. As noted in previous responses in this section, EPA
is not establishing requirements for the initial fill of refrigerant-
containing equipment to be done with reclaimed HFCs in this rulemaking.
EPA understands that many newer refrigerants (e.g., R-448A, R-449A, and
R-407A) would be used for the initial fill of new equipment in
compliance with the restrictions established in the 2023 Technology
Transitions Rule. However, EPA notes that based on reported data from
certified reclaimers, newer refrigerants are currently being reclaimed
albeit in smaller amounts but as previously noted, those amounts will
increase over time. Newer equipment is less likely to require repairs
so the amount of newer refrigerants being reclaimed should comport with
transition to those refrigerants. Also, as noted above, HFC blends can
be separated into components and these components can be used in other
blends to the extent patents, licensing agreements, and other business
relationships allow. As described above, EPA is establishing a
reporting requirement that will further inform the provisions for
reclaimed HFC refrigerant use in the covered RACHP subsectors. EPA will
use the information in these reports to evaluate these provisions.
EPA is not establishing exclusions based on GWP for the
requirements for the servicing and/or repair of refrigerant-containing
equipment with reclaimed HFCs in this rulemaking. The Agency disagrees
with the suggested GWP level of 1,500 on which to base exclusions,
noting among other things, that this would exclude HFC-134a, which by
volume is currently the second most reclaimed HFC refrigerant, has a
GWP of 1,430; thus supply is not tied to that GWP level. In response to
comments on GWP considerations of 2,200 in 2029 and 1,400 in 2034, the
Agency notes that similar to reasons discussed related to the GWP
consideration of 1,500, these suggested cut-offs would exclude HFCs
that have significant GWP levels. Regarding a GWP of 2,200, this would
exclude HFC-134a, as noted above, and other HFC refrigerants that are
currently being reclaimed, including R-407A, R-407C, and R-410A. A GWP-
based exclusion of 2,200 would be inappropriate and could discourage
the recovery and reclamation of these and other HFC refrigerants and
refrigerant blends that will be important to have available per the
established requirements for using reclaimed HFC refrigerants in this
rulemaking and as the phasedown progresses. Further, the GWP based
exclusion at 1,400 would exclude other HFCs, such as R-448A and R-449A
which are used in supermarket systems. A GWP cut-off of 1,400 may
discourage efforts to recover and reclaim these refrigerants. In
response to comments suggesting the GWP of 700 as the cut-off, which is
the GWP threshold used for requirements established for certain sectors
and
[[Page 82783]]
subsectors in the 2023 Technology Transitions Rule, EPA notes
differences in the statutory provisions in subsections (h) and (i) and
maintains that in this final rule, EPA is promulgating requirements
maximizing reclamation.
EPA acknowledges other comments related to not placing GWP-based
limits on the reclaimed HFC refrigerant requirements for servicing and/
or repair of certain refrigerant-containing equipment and the need to
protect the useful lifetime of the equipment. The Agency agrees and
effectively designed provisions in this rule to avoid stranding
equipment or forced early retirements. The Agency considered the long
and successful use of reclaimed refrigerants as well as some of the
longstanding concerns reclaimers have raised with market access and
acceptability.
As noted in response to other comments, EPA is aware of both
patents and certain business arrangements that pertain to certain newer
refrigerants and notes the changes between proposal and the final rule.
Comment: Another commenter requested that the reclaim mandate be
limited to refrigerants with GWPs greater than 1,500. The commenter
stated that it will be very challenging to meet the food retail
industry's need for reclaimed R-404A in 2028 and proposed that the
mandate be postponed until 2030 at the earliest to avoid the certainty
of commercial system shutdowns due to lack of refrigerant for
servicing. The commenter stated that while the existing reclaim banks
of all HFCs are currently inadequate to meet a servicing tail need in
2028, exempting refrigerants with GWPs less than 1,500 from the reclaim
mandate would serve to accelerate retrofits out of high-GWP
refrigerants into HFC/HFO blend refrigerants like R-448A and R-449A,
which would serve to quickly increase the amount of R-404A and R-507A
especially. The commenter further claimed that including refrigerants
like R-448A/R-449A in the reclaim mandate would remove all motivation
for food retailers to retrofit high-GWP R-404A systems to R-448A or R-
449A. The commenter stated that if it is clear when this regulation is
finalized if there will be a way to service or maintain existing R-448A
or R-449A equipment because if there are no reclaimed refrigerant
available, food retailers will immediately stop using these
refrigerants, and possibly start using higher-GWP refrigerants that are
more likely to have significant banks of refrigerant available for
service and maintenance. The commenter also noted that R-448A and R-
449A are used today in new appliances, which are unlikely to reach
their EOL until 2035-2040 at the earliest. The commenter stated that
refrigerant is reclaimed at the EOL, so the only opportunity to
establish banks of reclaimed refrigerant is when a new generation of
appliances using those refrigerants begin to be retired. The commenter
noted that, while it is true that there are older appliance retrofits
being carried out that use R-448A and R-449A, retrofitted appliances
can be expected to continue to operate at least for an additional 10
years after the retrofit; otherwise, the cost of the retrofit cannot be
justified.
Response: EPA responds and refers to the discussion in the previous
response of this section related to a GWP-based exclusion for the
reclaimed HFC refrigerant requirements at a GWP of 1,500. Further, the
Agency notes that the requirement for the servicing and/or repair of
certain refrigerant-containing equipment with reclaimed HFCs is being
delayed by one year to January 1, 2029. EPA also responds, as explained
in prior responses, that the Agency is not establishing requirements
for the initial fill of certain refrigerant-containing equipment with
reclaimed HFCs in this rulemaking. Thus, decreasing the estimated need
for supply of reclaimed HFCs needed to meet those provisions and, in
particular, the reclaimed HFC or HFC blend refrigerants discussed in
this comment.
EPA responds that setting such a GWP limit may have the opposite
effect and that by not including all HFC-containing refrigerants based
on a GWP limit, there would be less incentive to recover and reclaim
these blends. If the requirements were established such that R-448A and
R-449A, for example, were exempted from the requirements for servicing
and/or repair of certain refrigerant-containing equipment with
reclaimed HFCs, there could be less incentive to properly recover these
blends for future reclamation. Based on data reported to EPA on
reclamation totals, these blends are currently being reclaimed to a
degree, as are their components. EPA notes that while these or other
newer blends may be under patent, the Agency is aware that, on a global
basis,108 109 there are certain agreements in place among
producers and reclaimers to reclaim certain blends. Further, the Agency
notes that it anticipates that with proper maintenance and adherence to
the leak repair and ALD requirements, as applicable, in this
rulemaking, leaks of HFCs should be minimized, decreasing the need for
additional servicing of equipment.
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\108\ Chemours and Honeywell Announce Program to Enable
Reclamation and Recycling of Refrigerants in Support of Circular
Economy, November 16, 2022, available: https://www.chemours.com/en/news-media-center/all-news/press-releases/2022/chemours-and-honeywell-announce-program-to-enable-reclamation-and-recycling-of-refrigerants-in-suppo.
\109\ A-Gas Named Authorised Reclaimer of Patent Protected
Refrigerants, 2023, available: https://www.agas.com/uk/news-insights/a-gas-named-authorised-reclaimer-of-patent-protected-refrigerants/.
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In response to comments related to retrofit, EPA explains that
retrofit is considered as a servicing or repair activity in this
rulemaking. For the subsectors that are required to service and/or
repair of refrigerant-containing equipment with reclaimed HFCs (i.e.,
supermarket systems, refrigerated transport, and automatic commercial
ice makers), retrofits must be done with reclaimed HFC refrigerants if
the refrigerant-containing equipment is being retrofitted to use a
refrigerant that contains an HFC. Where a piece of refrigerant-
containing equipment is being retrofitted to use a substitute for an
HFC, reclaimed refrigerant would not be required.
Comment: Two commenters provided comments recommending establishing
exemptions from the requirements for reclaimed HFC refrigerant for
those applications that receive application-specific allowances under
the AIM Act.
Response: EPA responds to these comments related to providing
exemptions in cases for which application-specific HFC allowances are
provided under subsection (e)(4)(B) of the AIM Act. As discussed in
section I.B, EPA is excluding two applications, mission-critical
military end uses and on board aerospace fire suppression, from these
regulations for a year or years for which the application receives an
application-specific allowance as defined at 40 CFR 84.3. EPA is
establishing requirements for the servicing and/or repair of
refrigerant-containing equipment with reclaimed HFC refrigerants in the
supermarket systems, refrigerated transport, and automatic commercial
ice makers subsectors. If mission-critical military end uses and/or on
board aerospace fire suppression applications received application-
specific allowances for HFCs in a particular year or years, then the
exemption would apply.
This rulemaking establishes a definition for ``refrigerant-
containing equipment,'' which specifically does not include military
equipment used in deployable and expeditionary
[[Page 82784]]
situations. Where reclaimed HFC refrigerants are required to be used
for servicing and/or repair of certain refrigerant-containing equipment
per this rulemaking, the requirements do not apply to the specific case
of military equipment used in deployable and expeditionary situations.
Comment: One commenter suggested EPA move the January 1, 2028,
compliance date back at least two years to allow for development of the
necessary supply of reclaimed HFC refrigerants on the market. Another
commenter supported the 2028 timeline for the implementation of
reclaimed refrigerants and noted that EPA's firm rulemaking will help
make a strong business case for scaling up separation technologies.
Response: EPA acknowledges these comments and responds that the
Agency is delaying the compliance date for the requirements for the
servicing and/or repair of certain refrigerant-containing equipment to
be done with reclaimed HFCs to January 1, 2029. The Agency has reviewed
comments and considers January 1, 2029, as an appropriate compliance
date. The delayed compliance date provides industry more time to build
up capacity of reclaimed HFCs available for these activities and for
those in RACHP subsectors required to service and/or repair
refrigerant-containing equipment with reclaimed HFCs to establish
avenues to obtain the reclaimed HFC refrigerants. A compliance date of
January 1, 2029, also aligns with the next major step of the phasedown
under the AIM Act when virgin HFC production and consumption will be
reduced to 30 percent of the baseline. Reclaimed HFCs will play a
crucial role in supporting refrigerant-containing equipment using HFCs
as this next step of the phasedown occurs.
Comment: EPA received many comments on the included subsectors for
the requirements for use of reclaimed refrigerants for servicing and
repair. One commenter recommended that EPA follow the approach taken by
California's SB 1206 and implement reclaimed use requirements for all
HFC sectors. The commenter stated that CARB adopted a prohibition on
the sale, distribution, or other entrance to the market of newly
produced bulk high-GWP HFCs, regardless of the sector. The commenter
recommended that EPA take this comprehensive approach to establishing
requirements for reclaimed HFCs, since it would apply to bulk
refrigerant used in all sectors, including retail food applications and
non-space conditioning heat pump sectors such as clothes dryers, water
heaters, and pool and spa heaters. The commenter also stated that since
these technologies are projected to experience rapid adoption in the
next decade, if they are not addressed in the 2023 Technology
Transitions Rule, these sectors' equipment manufacturers may not be
incentivized to transition away from high-GWP refrigerants.
One commenter recommended that EPA include residential air
conditioning, light commercial air conditioning, heat pumps, cold
storage warehouses, and IPR sectors in the requirements for servicing
and/or repair of refrigerant-containing equipment with reclaimed HFCs
if EPA does not take a comprehensive approach to include all sectors in
these requirements. One commenter requested that the proposed
prohibition of virgin refrigerant usage for equipment servicing be
limited to supermarkets, cold storage warehouses, refrigerated
transport, and automatic commercial icemakers. Another commenter noted
that many of these subsectors are already transitioning to ultra-low-
GWP alternatives for new equipment. The commenter stated that the
supermarket sector in particular is anticipated to undergo significant
near-term retrofits from high- to low-GWP HFCs, which will make large
quantities of retired refrigerant available for reclamation and reuse
in the refrigeration servicing market.
One commenter urged EPA to expand the servicing and repair
reclamation mandate to additional sectors; specifically light
commercial and residential air conditioning and heat pumps. The
commenter stated that the inclusion of this sector is essential to any
material growth in recovery and reclamation as it has the greatest
number of operating units and therefore the greatest number of pounds
of refrigerant that can be recovered at EOL. The commenter also
suggested expanding the proposed rule to include smaller outdoor units
would also increase the amount of reclaim recovered annually. The
commenter suggested that EPA should focus the rule on system mandates,
as opposed to mandates by sector. The commenter noted that this
approach will help contractors better understand the reclaim
refrigerant requirements by relying on the type of system and stated
refrigerant charge. Moreover, the commenter claimed that, as the lower-
GWP systems begin to be installed pursuant to the 2023 Technology
Transitions Rule, EPA could then lower its GWP target below 1,000 GWP
as stated in this suggested approach and create additional reclaim
mandates for the lower-GWP systems. The commenter further stated that,
as with the ODS phaseout, using the ``worst first'' principle creates
significant reduction in the earlier years.
Some commenters expressed opposition to EPA's proposed mandate to
use reclaimed gas for servicing various subsectors; specifically, the
retail food manufacturing and distribution sector. Multiple commenters
expressed opposition to EPA's proposed requirements for HFC refrigerant
reclaim in the retail food industry and other commercial refrigeration.
The commenters stated that the cost of reclaimed HFC refrigerants will
not be cheaper than new HFCs. Three commenters claimed that reclaimed
HFCs are more expensive than HFCs because reclaimers incur significant
equipment and operational costs, including HFC losses during
reclamation, equipment upkeep costs, and costs associated with
rebalancing refrigerants. One commenter stated that, since some
industries are not required to use reclaimed HFC refrigerant, they will
procure either new or used HFCs, depending on which is cheaper, so the
price of reclaimed HFC refrigerant will always be at least as high as
new HFCs. The commenter continued by stating that the proposed
requirements will drive demand for reclaimed HFC refrigerant above that
of new HFC refrigerant, likely causing them to cost more. Further, the
commenter claimed that the use of reclaimed HFCs for equipment
servicing and repair may be technically infeasible for custom-built
equipment, particularly when upgrading or replacing components. The
commenter stated that a limited supply of niche HFCs or blends not
manufactured or reclaimed in significant volumes but essential for
specific subsectors may also create compliance challenges. The other
commenter expressed concerns that the mandate to use reclaimed gas for
servicing will strand installed equipment if there is insufficient
reclaimed gas to service the equipment. The commenter also noted that
any time market supply and demand for a commodity are short, the price
of that commodity will increase, and some consumers have to forgo the
product, which the commenter stated would be especially unfortunate for
equipment owners in the food manufacturing and distribution sectors.
The commenter stated that any further disruptions or cost escalations
to the food manufacturing and distribution sectors would increase
already historically high food costs.
[[Page 82785]]
Response: EPA acknowledges these comments related to including
additional subsectors in the requirements for using reclaimed HFCs in
this rulemaking. At this time, the Agency is finalizing requirements
for the servicing and/or repair of refrigerant-containing equipment
with reclaimed HFCs in the supermarket systems, refrigerated transport,
and automatic commercial ice makers subsectors. The Agency is not
finalizing requirements for the servicing and/or repair of refrigerant-
containing equipment with reclaimed HFCs in the stand-alone retail food
refrigeration subsector and is not establishing requirements for the
initial fill of refrigerant-containing equipment with reclaimed HFCs in
this rulemaking. EPA is removing requirements for reclaimed HFCs in the
servicing and/or repair of stand-alone retail food refrigeration
equipment in part due to the nature of the equipment. EPA understands
that these types of refrigerant-containing equipment are likely
hermetically sealed and are less likely to need servicing and/or
repair.
EPA is not establishing an approach for requirements to all RACHP
subsectors. As described in other responses, EPA considered available
supply of reclaimed HFC refrigerants per these requirements. EPA is
also establishing a reporting requirement to better assess the use of
reclaimed HFCs in the RACHP subsectors covered in this rulemaking to
evaluate the requirements in this rulemaking. The Agency acknowledges
comments to establish an approach for all subsectors or to include
additional subsectors and may consider additional subsectors in a
future rulemaking.
EPA disagrees with the assertion that reclaimed HFCs are
substantially more expensive than virgin HFCs and is not aware of
market data or analyses clearly indicating such a trend. In response to
the NODA that the Agency published on October 17, 2022 (87 FR 62843),
in which EPA requested comment on current trends on the price of
refrigerant, one reclaimer noted: ``The market price for reclaim and
virgin are generally equivalent. There is neither a `green premium' nor
a lower price for reclaim.'' \110\ EPA is also aware of at least one
study indicating that reclaimed HFCs may actually be more cost-
effective than virgin manufacture, when considering the full
refrigerant lifecycle. In the analysis for the proposed ER&R rule, EPA
referenced a study, Yasaka et al. (2023),\111\ which performed a life
cycle assessment for the virgin production, destruction, and
reclamation of R-410A, HFC-32, and HCFC-22 in Europe and Japan and
found that the reclamation process had lower energy consumption and
costs and emitted fewer GHG emissions compared to production and
destruction, regardless of the refrigerant type or plant location. EPA
is not aware of a similar study for the United States and so has
conservatively assumed higher costs for reclaimed HFCs in the analysis
for the final rule. Specifically, in its assessment of costs and
benefits detailed in the Economic Impact and Benefits TSD and
summarized above EPA has assumed a cost premium of 10 percent for
reclaimed HFCs vis-a-vis virgin manufactured HFCs.
---------------------------------------------------------------------------
\110\ See comment number EPA-HQ-OAR-2022-0606-0009.
\111\ Yasaka, Yoshihito, et al. ``Life-Cycle Assessment of
Refrigerants for Air Conditioners Considering Reclamation and
Destruction.'' Sustainability, vol. 15, no.1, 2023, p. 473,
doi:10.3390/su15010473.
---------------------------------------------------------------------------
EPA notes that the commenter has not provided any quantitative
information regarding a supposed cost increase in food prices resulting
from refrigeration, or the effect that other factors such as
refrigerant savings resulting from leak detection and repair provisions
contained in this rule could have in mitigating such a cost increase.
EPA does not agree with the commenter's position that the
requirement for the servicing and/or repair of certain refrigerant-
containing equipment with reclaimed HFCs will strand installed
equipment. The commenter suggests a scenario where there is an
insufficient supply of reclaimed refrigerant. As EPA notes above, the
Agency considers these provisions as encouraging increased reclamation.
Further, as described above, the provisions for servicing and/or repair
of refrigerant-containing equipment with reclaimed HFCs finalized in
this rule differ from the proposal. The Agency made changes from the
proposal to delay the compliance date. Further, the Agency is only
finalizing these provisions for refrigerant-containing equipment in
three RACHP subsectors at this time. Accordingly, the Agency does not
expect these concerns to be implicated by this final rule. The Agency
does not agree that the provisions will result in unfavorable pricing
for consumers. The Agency notes the overall phasedown of HFCs is more
likely to affect the price of HFCs than these provisions. In addition,
EPA describes current reclamation trends in other responses in this
section, including reclamation of certain HFC refrigerants that are in
blends and/or form the components of other blends. EPA anticipates
that, while direct recovery reclamation of certain blends may be
occurring at a lower rate, the recovery of blend components is expected
to support the overall reclamation of these blends.
Comment: Another commenter suggested that this proposal will create
confusion by requiring the use of reclaimed refrigerants in certain
sub-sectors, while not requiring it in others even though some of these
sectors use the same refrigerants. The commenter stated that,
currently, based on EPA's proposal, stand-alone retail food
refrigeration, supermarket systems, refrigerated systems, refrigerated
transport, and automatic ice makers are required to use reclaimed
refrigerants, but cold storage warehouses and IPR are exempt. The
commenter suggested that the refrigeration reclaim usage requirements
are not separated by subsectors. The commenter noted that the use of
reclaimed refrigerants in imported equipment depends on the
availability of recovered HFCs in the exporting countries and that it
may be challenging to prove the authenticity of reclaimed refrigerants
abroad. The commenter stated that these two factors could amount to an
import ban for equipment with reclaimed HFCs. The commenter therefore
requested that imported equipment be exempted from the mandatory use of
reclaimed refrigerants.
Another commenter stated that the NPRM did not address how reclaim
requirements would apply to imported units and HFCs. The commenter
questioned what the effects of reclamation in other countries would be
upon capacity in the U.S. market and suggested that EPA should not
provide offshore producers with an advantage.
Response: EPA responds to comments about the requirements for
servicing and/or repair of certain refrigerant-containing equipment
with reclaimed HFCs by noting that these types of provisions are within
the authority under subsection (h) to promulgate regulations to control
practices, process, or activities related to the servicing, repair,
disposal, or installation of equipment. EPA disagrees that requiring
that the servicing and/or repair of refrigerant-containing equipment
with reclaimed HFCs in certain RACHP subsectors and not others would
create confusion. The Agency is establishing labeling requirements for
containers of reclaimed refrigerants that contain HFCs (as discussed in
section IV.E.1) such that equipment owners and operators can verify
they are using reclaimed HFC refrigerants for servicing and/or repair
[[Page 82786]]
of refrigerant-containing equipment in the supermarket systems,
refrigerated transport, and automatic commercial ice maker subsectors.
Further, EPA clarifies that this rule would not preclude the use of
reclaimed HFC refrigerants in any manner. Consistent with the proposed
rule and EPA's experience in the use of reclaimed ODS refrigerants, EPA
anticipates that reclaimed HFC refrigerants will continue to play an
increasingly significant role in the servicing and/or repair of
existing equipment that use HFC refrigerants as the phasedown on
production and consumption of virgin HFCs progresses.
EPA responds that the Agency is not establishing requirements for
the initial fill of refrigerant-containing equipment with reclaimed
HFCs at this time.
Comment: One commenter proposed an alternative where EPA could
finalize a program to define a ``service gas'' to distribute the finite
reclaimed HFCs across the entire service market, and in this
alternative, exclude first fill requirements with reclaimed HFC
refrigerants. The commenter further claimed that EPA could require a
minimum percentage of reclaimed HFCs (with consideration of the 15
percent limit, by weight, on virgin HFCs) to be used in service gas
sold to the aftermarket. The commenter further suggested requiring that
all reclaimed HFCs be recovered from equipment manufactured in the
United States (excluding equipment meeting GWPs under the 2023
Technology Transitions Rule and first fill requirements), claiming that
this would maximize reclaim across the full market, maintain free
market competition, return reclaimed higher-GWP refrigerants to
service, and maximize reclaim as recovery rates grow over time. The
commenter recommended that EPA consider different service levels by
market sector, exempting IPR because of its requirement to continuously
maintain temperature ranges.
A couple of commenters discussed the feasibility of EPA creating a
new service gas category for refrigerants. One commenter requested that
EPA reject arguments that reclaim goals cannot be met due to challenges
in recovery practices and that a new service gas category can be used
in the secondary market (that is less than 85 percent reclaim). The
commenter contended that such arguments were intended to cast doubt on
the ability of reclaimers to provide sufficient reclaimed refrigerant.
Another commenter suggested that a limit on virgin refrigerant could
thwart reclaim goals and restrict uses like a ``service gas'' where an
increasing percentage of reclaimed refrigerant could be used over time.
Response: EPA did not propose and is not finalizing the creation of
a service gas category for refrigerants as EPA does not agree that the
creation of a service gas category is necessary. EPA acknowledges that
under the CAA title VI phaseout ODS regulations, virgin HCFCs can be
produced and imported in very small quantities solely for purposes of
servicing certain appliances. For example, today under the ``servicing
tail'' requirements, EPA issues allowances that allow for no more than
0.5 percent of the U.S. HCFC baseline to be produced and imported,
requires that those HCFCs must be used solely for servicing, and
further limits the allowances to only the two HCFCs with the lowest
ozone-depleting potentials (i.e., HCFC-123 and HCFC-124). The structure
of the AIM Act and the CAA differs significantly in this area and, in
particular, the AIM Act's phasedown and not phaseout of HFC production
and consumption is a stark difference from the ODS structure, resulting
in a need for a different approach with regards to servicing. EPA does
not agree conceptually with a new category of gas that has a percentage
of reclaimed material between a ``virgin regulated substance'' and
``reclaimed refrigerant.'' It is EPA's view that the creation of this
new category could create unnecessary complications in the market and
could weaken the demand for reclaimed refrigerant rather than
strengthening it. As EPA explains in section IV.E.1, the Agency is
establishing a standard for the limit on the percentage of virgin HFCs,
by weight, in reclaimed HFC refrigerants. EPA explains that, in
addition to supporting maximizing reclamation, this standard helps to
provide a consistent understanding of what constitutes reclaimed HFCs
for their use in refrigerant-containing equipment. EPA views that a
service gas category as described by the commenter would be detrimental
to this, such that the service gas category would introduce
refrigerants with more virgin HFCs than would be in reclaimed HFC
refrigerants meeting the standard established in this rulemaking. Such
a service gas category would contradict the goal of maximizing
reclamation by allowing more virgin HFCs in the servicing and/or repair
of refrigerant-containing equipment. Further, EPA anticipates that this
approach would require additional recordkeeping, and potential
reporting, to confirm particular owners and operators were using a
service gas of a specified percentage of reclaimed HFCs. Where the
commenter states that varying percentages of reclaimed HFCs could be in
service gas by subsector, the Agency responds that this could create
confusion on the market. Equipment owners and operators would be
required to ensure that the correct service gas was being used to
service and/or repair their refrigerant-containing equipment depending
on the subsector they are in. The established requirements for the
standard on reclaimed HFC refrigerants avoid this confusion by ensuring
there is a consistent understanding of reclaimed HFC refrigerant on the
market. This standard and the established labeling requirements
(discussed in section IV.E.1) properly support the requirements for the
servicing and/or repair of refrigerant-containing equipment with
reclaimed HFCs in certain RACHP subsectors, such that equipment owners
or operators in these subsectors can be sure that the reclaimed HFC
refrigerants are compliant and can be used to service and/or repair
their refrigerant-containing equipment.
As explained in other responses in this section, the provisions
that EPA is finalizing to require that the servicing and/or repair of
refrigerant-containing equipment with reclaimed HFCs in certain RACHP
subsectors are within the authority of subsection (h) of the AIM Act.
EPA is also notes that the Agency discusses considerations and responds
to comments related to establishing the servicing and/or repair with
reclaimed HFCs provisions with a GWP limit (including considering those
GWP levels established in the 2023 Technology Transitions Rule). The
Agency is not establishing GWP-based cut-offs for reclaimed HFC
refrigerants for the provisions in this rulemaking for servicing and/or
repair of refrigerant-containing equipment in certain RACHP subsectors.
Further, the Agency is not establishing requirements for reclaimed HFC
refrigerants in the initial fill of any refrigerant-containing
equipment in this rulemaking.
Comment: Several commenters expressed concern about patent and
intellectual property issues with reclamation. One commenter
recommended that EPA provide an exception for certain newer and
commonly used low-GWP refrigerants such as R-448A, R-449A and R-407A,
given that they are unlikely to be reclaimed in sufficient quantity to
satisfy industry needs, as these substances have only recently started
to be used in newly installed or retrofitted commercial refrigeration
systems. The commenter further claimed that these refrigerants are
subject to patents held
[[Page 82787]]
by their manufacturers; thus, not all reclaimers can legally formulate
their blends, which will constrict supply. The commenter also stated
that the proposed rule does not clarify EPA's analysis with respect to
patent issues when carrying out HFC reclamation activities. Another
commenter requested that EPA exclude patented or intellectual property-
protected products from these requirements. One commenter stated that a
portion of reclaimer recovered refrigerants are patented and cannot be
reclaimed to AHRI 700 specifications without ``rebalancing'' through
the addition of blend components. The commenter claimed that
rebalancing puts reclaimers at odds with patent laws and the
refrigerant producers. The commenter noted that if out-of-specification
patented refrigerants fell under RCRA, within a year the reclaimers
would be unable to process the material and unable to store it. Another
commenter expressed concern about intellectual property restrictions,
particularly for new low-GWP refrigerants. The commenter stated that
reclaimers would need to secure authorization from producers to re-
blend recovered HFCs into mixtures. The commenter suggested that this
would be a bottleneck in the supply of reclaimed refrigerant and that
recovered refrigerant should be primarily utilized to service the
installed base (e.g., R-410A) instead of for the production of low-GWP
blends (e.g., R-32 from R-410A to blend R-454B). Another commenter
pointed out that many refrigerant blends are patented and cannot be
reclaimed until the patents expire, which would make it impossible to
supply the necessary refrigerants for this proposal.
One commenter recommended that the final rule exclude patented
refrigerants from any reclaim requirements under subsection (h) due to
the requirements' potential to create serious issues for patented
blends and incentivize patent infringement. The commenter stated that
licensing rights would need to be secured to sell patented blends.
Alternatively, the commenter suggested that the reclaim mandates could
compel owners or operators to prematurely decommission equipment,
leading to high costs and waste, counteracting sustainability goals.
Another commenter highlighted that other free market initiatives are
already underway to support refrigerant recovery, reclaim, and
recycling by U.S. companies exploring programs to enable the
circularity of proprietary HFO blends. The commenter stated that EPA
should not finalize any rule that incentivizes or requires patent
infringement or authorizes reprocessing of patented blends when source
material is unknown.
Response: On a global basis,112 113 EPA is also aware
that some chemical producers have entered into agreements with
reclaimers that support additional reclamation particularly where
patents may be in place. EPA acknowledges there may be patents,
licensing agreements, and other business practices that may impact the
ability of some reclaimers to reclaim certain refrigerants. The Agency
saw a similar situation when the market shifted from ODS to HFC
refrigerants and to some extent has seen it with each introduction of a
new HFC blend. However, requiring an upper bound of virgin HFCs, as the
Agency is doing in this final rule, would not change whether or not a
reclaimer could reclaim or introduce to commerce reclaimed HFCs.
---------------------------------------------------------------------------
\112\ Chemours and Honeywell Announce Program to Enable
Reclamation and Recycling of Refrigerants in Support of Circular
Economy, November 16, 2022, available: https://www.chemours.com/en/news-media-center/all-news/press-releases/2022/chemours-and-honeywell-announce-program-to-enable-reclamation-and-recycling-of-refrigerants-in-suppo.
\113\ A-Gas Named Authorised Reclaimer of Patent Protected
Refrigerants, 2023, available: https://www.agas.com/uk/news-insights/a-gas-named-authorised-reclaimer-of-patent-protected-refrigerants/.
---------------------------------------------------------------------------
Comment: Two commenters stated that the proposal to mandate the use
of reclaimed HFCs in servicing/repair for certain subsectors exceeds
EPA's authority in subsection (h) of the AIM Act, as the Act provides
no authority for the Agency to single out specific subsectors to
shoulder the increased costs of using reclaimed HFC refrigerants. The
commenters noted that subsection (i) of the statute provides specific
authority for EPA to ``restrict, fully, partially, or on a graduated
schedule, the use of a regulated substance in the sector or subsector
in which the regulated substance is used,'' and that EPA has used that
authority to promulgate specific requirements for subsectors in the
2023 Technology Transitions Rule. One commenter continued by stating
that subsection (h), the authority for this rulemaking, does not refer
to ``sectors'' or ``subsectors,'' giving no basis for EPA to treat
subsectors differently in requiring the use of reclaimed HFCs. The
commenter noted that this action exceeds the scope of EPA's AIM Act
authority and is arbitrary and capricious within the meaning of the
Administrative Procedure Act.
Two commenters stated that the proposed rule would regulate the
``use'' of HFCs, which would require fulfilling prerequisites under
subsection (i) of the AIM Act, and that this rulemaking does not
fulfill them. The commenters stated that manufacturing a new unit or
supplying refrigerant for servicing is not such a practice, process, or
activity related to the servicing, repair, disposal, or installation of
equipment. One commenter stated that subsection (h) provided one
specific example for what would be ``appropriate''--requiring
servicing, repair, disposal, or installation to be performed by a
trained technician. The commenter further stated that the same
practices, processes, or activities are done for virgin or reclaimed
HFCs and the requirement to use reclaimed HFCs is removed from
subsection (h)'s example of what is appropriate--technician training.
The commenter also claimed that EPA's interpretation of subsection (h)
was impermissibly broad and could cover ``anything and everything''
that has to do with HFCs as connected to equipment. The other commenter
claimed that these practices do not include opportunities for
reclamation. The commenter stated that EPA's justification under
subsection (h) to require the use of reclaimed HFCs in certain
applications to minimize the release of regulated substances is
creating a situation where EPA's authority could theoretically become
unlimited. The commenter gave a theoretical example of EPA requiring
lower-GWP refrigerants in certain applications to ``minimize releases''
of HFCs.
Response: EPA disagrees with the comment that the requirement for
the servicing and/or repair of refrigerant-containing equipment with
reclaimed HFCs in certain RACHP subsectors exceeds EPA's authority in
subsection (h) of the AIM Act. EPA does not consider the authority
conveyed in subsection (i)(1), or the use of the terms ``sector'' and
``subsector'' in subsection (i), to preclude EPA from tailoring its
regulations under other provisions of the Act to particular sectors or
subsectors, where it is appropriate and reasonable to do so. As noted
elsewhere in this action, EPA interprets the AIM Act as providing
separate and distinct regulatory authorities, which can be implemented
in ways that reinforce and complement one another. In this final rule,
EPA is requiring that the servicing and/or repair of certain
refrigerant-containing equipment be done with reclaimed HFCs as part of
the regulations implementing its authority
[[Page 82788]]
under subsection (h) of the Act. That provision directs EPA to
promulgate regulations to control, where appropriate, any practice,
process, or activity regarding the servicing, repair, disposal, or
installation of equipment that involves: a regulated substance, a
substitute for a regulated substance, the reclaiming of a regulated
substance used as a refrigerant, or the reclaiming of a substitute for
a regulated substance used as a refrigerant. A requirement for the
servicing and/or repair of certain refrigerant-containing equipment be
done with reclaimed HFCs controls a practice, process, or activity
regarding the servicing or repair of equipment and involves a regulated
substance or the reclaiming of a regulated substance. This requirement
also supports and encourages reclamation of HFCs and thus is consistent
with at least one of the purposes identified in subsection (h)(1).
Accordingly, this requirement is within the scope of EPA's authority
under subsection (h). In contrast to the regulations established under
the 2023 Technology Transitions Rule, in this rule, EPA is not
restricting the use of specific HFCs in a sector or subsector, nor is
it limiting the use of HFCs based on a GWP threshold. Rather, it is
requiring that the HFCs used in servicing and/or repair of refrigerant-
containing equipment in certain RACHP subsectors meet criteria related
to the processing of the HFC before it is used; specifically, requiring
that the reclaimed HFC refrigerants meet specific purity standards and
meet the established standards in this rulemaking limiting virgin HFC
content (see section IV.E.1). EPA identified the refrigerant-containing
equipment subject to this requirement by sector or subsector in part to
build on terms that are already familiar to the regulated community so
that it is easier to understand how these requirements will apply.
Nothing in subsection (h) requires that regulations established under
this subsection apply equally to all types of equipment. Such an
interpretation would make little sense, as different types of equipment
necessarily involve different practices, processes, or activities
regarding their servicing, repair, disposal, or installation. EPA has
explained its rationale for this action elsewhere in this preamble, and
for those reasons, views this requirement as a reasonable measure to
implement its authority under subsection (h)(1) of the Act.
In response to comments that state that subsection (h) provides
one, specific example of what is ``appropriate'' to control, which the
commenter states is technician training, EPA disagrees that the
statutory language under subsection (h) is best read as narrowly
defining technician training as the only appropriate practice, process,
or activity regarding the servicing, repair, disposal, or installation
of equipment. Rather, EPA interprets the text at subsection (h)(1) to
simply identify an example of a requirement that would fit within the
scope of (h)(1), not as a limitation that would preclude establishing
other regulations that are also within the scope of (h)(1). The fact
that the statutory text says, ``including requiring, where appropriate
. . .,'' indicates that the example was not intended as a limitation,
as ``including'' makes clear that what follows is a potential
requirement contemplated under the statutory text but does not exclude
other possibilities. Further, the phrase ``where appropriate'' in the
parenthetical suggests that Congress contemplated that the Agency would
consider whether such a requirement was appropriate before establishing
it, not that Congress automatically assumed that any such requirement
would necessarily be appropriate, much less be the only appropriate
option. Moreover, as discussed previously in this preamble, the phrase
``where appropriate'' in subsection (h)(1) provides EPA discretion to
reasonably determine how the regulations under subsection (h)(1) will
apply. Thus, as explained above, the phrase ``where appropriate'' in
the parenthetical in subsection (h)(1) clearly leaves EPA flexibility
to determine whether and in what circumstances to require that ``such
servicing, repair, disposal, or installation be performed by a trained
technician meeting minimum standards, as determined by the
Administrator,'' as well as discretion to establish such minimum
standards.
Comment: Two commenters stated that EPA lacks authority over non-
servicing actions under the AIM Act. The commenters claimed that EPA's
proposal in section 84.112 to regulate the marketing and sale of HFCs
in commerce upstream from the use of HFC gas in equipment is not
reasonably within EPA's authority. In particular, EPA's proposal to
restrict the sale of reclaimed gas in section 84.112(b) does not relate
to servicing of equipment, but rather restricts the sale of reclaimed
gas upstream from the equipment. EPA's rule would restrict any sale of
reclaimed HFCs in lieu of virgin gas for any uses that are still
available to virgin gas under EPA's various AIM Act regulations. One
commenter claimed that EPA is going beyond its subsection (h) authority
by implementing reclaim requirements that go beyond maximizing reclaim
and minimizing emissions that occur during specified events such as
servicing and repair, and that EPA only has explicit authority to
regulate releases from equipment and to ensure safety of technicians
and consumers. The other commenter further asserted that, read
together, the terms that Congress used--``servicing, repair, disposal,
or installation of equipment''--naturally refer to work performed on
equipment, not to the design of the equipment or the choice of which
refrigerant gas is used in the equipment, and that given the context of
the statute, it is not natural (and therefore not reasonable) to
describe the choice of what gas is used in equipment as a ``practice,
process, or activity.'' The commenter maintained that the choice or
specification of what refrigerant gas to use to charge a system is
simply not an ``activity'' as used in the statute, and that EPA's
reading of the concept of ``activity,'' which they characterize as
overly expansive, would lead to unexpected and overbroad results if,
for example, specification of equipment components is considered to be
an activity and EPA could dictate the type of steel used in the
refrigeration system or the energy efficiency of the system.
The commenter asserted that the mandate to use reclaimed gas when
servicing or repairing equipment relates to the choice of which gas to
use, not to the activities that are normally considered repair and
servicing such as refrigerant recovery or charging gas (apart from the
choice of using virgin or reclaimed gas), replacing parts, or fixing
coupling or seals, and further claimed that if Congress had intended to
delegate to EPA the authority to dictate the type of refrigerant gas
that can be sold in the marketplace, it would have provided express
authority similar to that in subsection (i) relating to technology
transitions. The commenter further stated that there is no indication
in subsection (h) that Congress intended to give EPA the ability to
``eliminate virgin gas'' and replace it with reclaim gas. The commenter
further claimed that had Congress intended to give EPA the power to do
so, it would have ``stated so in clear terms.'' There is no indication
in the AIM Act that the reclaim provision was intended to trump the
allowance program and technology transition provisions in this way. The
commenter claimed that in contrast, a narrower approach focused on
equipment servicing is entirely consistent with the statutory goal of
[[Page 82789]]
increasing reclaim, reducing emissions, and enhancing safety.
Response: The Agency disagrees with the comments that these
provisions go beyond its authority under subsection (h) of the AIM Act.
The AIM Act provides various grants of authority to EPA, which, while
separate and distinct, can be implemented in ways that reinforce and
complement one another. Under subsection (h), for purposes including
maximizing reclaiming and minimizing the release of a regulated
substance from equipment, Congress directed the Administrator to
promulgate regulations to control practices, processes, or activities
regarding the servicing, repair, disposal, or installation of equipment
that involves a regulated substance and the reclaiming of a regulated
substance used as a refrigerant. This final rule, including the
requirements related to the servicing and/or repair of refrigerant-
containing equipment with reclaimed HFCs in certain RACHP subsectors,
carries out this direction in subsection (h). The requirement for the
servicing and/or repair of certain refrigerant-containing equipment
with reclaimed HFCs controls a practice, process, or activity regarding
the servicing or repair of equipment and involves a regulated substance
or the reclaiming of a regulated substance. This requirement also
supports and encourages reclamation of HFCs and thus is consistent with
the purposes identified in subsection (h)(1). Accordingly, this
requirement is within the scope of EPA's authority under subsection
(h). While this requirement regulates the activities of the person
performing the servicing or repair by requiring that the refrigerant
used during servicing or repair meet certain criteria, Congress did not
limit EPA's authority under (h)(1) to only servicing activities that
are performed directly on equipment. Rather, as noted previously,
Congress authorized EPA to regulate a broader scope of processes,
practices or activities regarding servicing, repair, disposal, or
installation of equipment. The statutory term ``regarding'' is quite
expansive and EPA interprets it broadly in this context. Selection of a
refrigerant for servicing and/or repair is an important part of the
servicing or repair process, as not all refrigerants are compatible
with all equipment, and it is critical to select a refrigerant for
servicing or repair that can appropriately be used with the equipment
being serviced or repaired. For example, it would not be appropriate to
use a flammable refrigerant in equipment that is designed to use only
nonflammable refrigerants, so selecting the appropriate refrigerant for
recharging such equipment after repair is a vital part of the repair
process. The commenter's hypothetical examples regarding EPA dictating
the steel used in the refrigeration system or its energy efficiency are
inapposite because neither of those choices appear to involve a
regulated substance or substitute, nor the reclaiming of a regulated
substance (or substitute) used as a refrigerant. See subsection
(h)(1)(A)-(D).
The limitation on selling, identifying, or reporting a refrigerant
as reclaimed unless it meets certain criteria helps ensure that the
refrigerant used to comply with the requirements for reclaimed
refrigerants actually contains HFCs that have had bona fide use in
equipment and been recovered from equipment before being reclaimed.
This provision helps ensure that the requirements in this final rule
achieve their regulatory purposes of maximizing reclamation and
minimizing release of HFCs from equipment. For instance, it gives
assurance to a technician purchasing refrigerant for servicing
equipment in a RACHP subsector subject to the requirement to service
with reclaimed refrigerant that refrigerant that is marketed as
reclaimed refrigerant will meet EPA's regulatory requirements. Under
EPA's interpretation of subsection (h), the practices, processes, or
activities regulated by this provision have sufficient relation to
servicing or repair of equipment to also be within the Agency's
authority under subsection (h)(1). Because EPA is not finalizing, at
this time, the proposed requirement for the initial fill of
refrigerant-containing equipment with HFCs, it is not responding to
comments concerning its authority for that provision.
Contrary to the commenters' assertions, EPA further notes that this
provision does not restrict the sale of all refrigerants in the
marketplace, but rather only applies to those refrigerants that are
being sold, identified or reported as reclaimed. Further, these
requirements do not mandate elimination of virgin gas from the supply
chain, but rather prevent it from being sold, identified, or reported
as reclaimed refrigerant and limits its use in servicing or repairing
certain refrigerant-containing appliances. Moreover, this final rule
does not reflect an approach that would ``trump the allowance program
and technology transition provisions'' but rather contains requirements
that are designed to serve the direction and purposes in subsection
(h). Finally, EPA acknowledges the commenters' suggested approaches to
refrigerant management that it believes EPA should adopt. Some of those
suggestions are consistent with regulations that EPA is finalizing in
this action; others reflect approaches that EPA did not propose and is
not finalizing in this action, but which may be considered in the
future under subsection (h).
Comment: A few commenters claimed that the proposed rule, if
finalized, would improperly accelerate the phasedown of HFC production
and import for specific sectors by restricting HFC use in those sectors
to 15 percent of (baseline) levels for repair and servicing in
contravention to the AIM Act and the HFC phasedown regulations. The
commenters claimed that the proposed rule effectively mandates an 85
percent reduction of production and import of HFCs for use in those
sectors by 2028, which is substantially faster than the 40 percent
reduction in 2028 required by the AIM Act.\114\ While the commenters
recognized that the proposed acceleration is limited to certain
subsectors and activities, the practical implications are much broader
because HFCs are specific to end-use. The commenters requested that EPA
reconsider the reclaim requirements because the AIM Act does not
authorize such an acceleration of the HFC phasedown in these sectors;
there is not sufficient evidence that supply of reclaimed HFCs can meet
demand for the specific sectors; and the mandate will increase HFC
prices in the sectors, resulting in harm to consumers.
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\114\ EPA is clarifying the commenters' characterization of the
phasedown on the production and consumption of HFCs under the AIM
Act. The phasedown requires a 40 percent reduction from the baseline
in 2024 (i.e., 60 percent of the baseline) and a 70 percent
reduction from the baseline in 2029 (i.e., 30 percent of the
baseline).
---------------------------------------------------------------------------
Another commenter stated that the possible outcome suggested in the
Draft RIA addendum for the proposed rule that the requirements for the
use of reclaimed HFCs in refrigerant-containing equipment in certain
RACHP subsectors would reduce the need for production of refrigerant.
Further, the commenter cited that the high additionality case in the
Draft RIA addendum showed environmental benefits related to reduced
consumption. The commenter stated that to the extent that occurs, it
would be an improper acceleration of the phasedown in contravention
with subsection (f). The commenter, however, also suggested that EPA
separately consider accelerating the
[[Page 82790]]
HFC phasedown pursuant to subsection (f) as a means of supporting
reclamation. The commenter stated that there currently is an excess of
HFCs available in the market due to stockpiling and soft demand for
RACHP equipment. The commenter mentioned that the current over-supply
of HFCs discourages reclamation. The commenter suggested that a 10
percent step-down in each of 2027, 2028, and 2029 would help prevent
the shock of a sudden drop in supply and encourage reclamation.
Response: The Agency responds by noting the AIM Act provides
various grants of authority to EPA, which, while separate and distinct,
can be implemented in ways that reinforce and complement one another.
As explained elsewhere in this notice, the requirements for the
servicing and/or repair of certain refrigerant-containing equipment
with reclaimed HFCs are being finalized under subsection (h) of the AIM
Act, consistent with the direction and purposes identified in that
subsection. The Agency did not propose to and is not accelerating the
HFC phasedown through this action, nor does the RIA addendum analyze an
acceleration of the HFC phasedown. Rather, HFCs will continue to be
available consistent with the phasedown codified at 40 CFR part 84,
subpart A. Even if commenters' contentions were correct that these
requirements would in effect reduce the production or consumption of
HFCs used in particular sectors or subsectors faster than the scheduled
reductions under the Act, that does not make this rule an acceleration
under subsection (f). Subsection (f) addresses the EPA Administrator's
authority to ``promulgate regulations that establish a schedule for
phasing down the production or consumption of regulated substances that
is more stringent than the production and consumption levels of
regulated substances required under subsection (e)(2)(C)'' and the
requirements for such regulations. As discussed in greater detail
elsewhere in this notice, subsection (e)(2)(C) establishes an economy-
wide phasedown schedule from baselines that are established pursuant to
subsection (e)(1)(A) ``for all regulated substances in the United
States,'' and the production and consumption phasedown is implemented
on an exchange value-weighted basis (rather than establishing caps for
particular HFCs). This rule does not change the phasedown schedule,
alter the amount of HFC production and consumption allowed in any year
on an exchange value-weighted basis, nor does it alter the number of
allowances that EPA will allocate in a future year. Further, this rule
does not prohibit any production or import of any HFC. Instead, the
provisions in this rule govern specified processes, practices, and
activities concerning the servicing and/or repair of certain
refrigerant-containing equipment with reclaimed HFCs in specific
subsectors.
EPA notes that consideration of accelerating the phasedown under
subsection (f) of the AIM Act is beyond the scope of this rulemaking
and thus the comment suggesting that EPA consider such an acceleration
requires no further response.
Regarding the claim that the supply of reclaimed HFCs cannot meet
the demand, the Agency notes that the Economic Impact and Benefits TSD
examined such supply. While EPA's analysis does show that the amount of
HFCs reclaimed in 2023 (latest year available) was less than the
estimated demand, the data showed a significant increase in HFC
reclamation compared to the previous year and showed that if this trend
continued, there would be enough reclaimed HFC to meet the projected
demand many times over. Further, in the Economic Impact and Benefits
TSD, EPA evaluated the expected amount of HFCs from equipment coming
out of service when the requirements for servicing and/or repair of
refrigerant-containing equipment with reclaimed HFCs in certain RACHP
subsectors take effect, and sees that such amounts, if reclaimed, could
meet the demand on a chemical-by-chemical basis. Further, nothing in
this rule prevents reclamation of refrigerants in compliance with the
standard in this rule before the reclaim requirements take effect.
Reclaimers or users may then choose to hold such materials for any
expected demand later on, meeting the recordkeeping and reporting
provisions that apply to such material.
In the Economic Impact and Benefits TSD, EPA assumed an increase in
price for reclaimed refrigerant compared to virgin refrigerant. Based
on comments received, the Agency also provided a sensitivity analysis
under which it assumed cost parity between reclaimed and virgin
refrigerant.
Comment: Two commenters recommended that EPA consider an
accelerated reclaim refrigerant requirement for federally owned
equipment or buildings to lead by example and stimulate reclaim market
expansion. One of the commenters recommended this as a pilot program to
assemble real-world data on costs and various issues. The commenter
stated that a pilot could allow the validation of the Agency's
assumptions about reclaim supply without risking adverse consequences.
The commenter claimed that imposing a requirement for the use of
reclaimed HFCs on Federal departments and agencies would allow EPA to
assess the feasibility and resulting costs without imposing a
widespread requirement nationwide. The commenter claimed that such a
pilot would allow for the assembly of verified data and lead to
``lessons learned'' and the refinement of resulting regulation,
minimizing any consumer and community impact that EPA may not have
considered. Another commenter pointed to California as an example where
reclaim requirements were implemented for State owned or operated
equipment and noted the large number of buildings owned or leased by
the Federal government. Another commenter noted that many large-scale
purchasers are already purchasing reclaimed refrigerants and encouraged
the General Services Administration and other Federal agencies to
continue to support the reclaim market. Another commenter stated that
the Biden Administration previously announced that the General Services
Administration would review contracts to support the use of reclaimed
refrigerants in facilities.\115\
---------------------------------------------------------------------------
\115\ The White House, ``FACT SHEET: Biden Administration
Combats Super-Pollutants and Bolsters Domestic Manufacturing with
New Programs and Historic Commitments,'' The White House, September
23, 2021, available at: https://www.whitehouse.gov/briefing-room/statements-releases/2021/09/23/fact-sheet-biden-administration-combats-super-pollutants-and-bolsters-domestic-manufacturing-with-new-programs-and-historic-commitments.
---------------------------------------------------------------------------
Response: EPA appreciates the suggestion for a program aimed at
federally-owned buildings. The Agency will share with other relevant
Federal entities, including the General Services Administration, these
comments encouraging a Federal program. While such a program is out of
scope for this rulemaking and thus requires no further response, the
Agency does note that for the leak repair provisions, the Agency did
not propose and is not finalizing flexibilities that allow for
additional time for federally-owned buildings, which is allowed under
the related CAA section 608 regulations.
Comment: One commenter stated that, if EPA finalizes any of the
proposed reclaim requirements, EPA should: require contractors to
maintain records (subject to audit) of the quantity and type of
refrigerant recovered and used to service equipment, require OEMs,
distributors, reclaimers, and other allowance holders to annually
report on the quantities of refrigerant recovered,
[[Page 82791]]
reclaimed, disposed of, and introduced into commerce, and review EPA's
program, including opportunity for public comment, by October 1, 2026,
and finalize revised standards by 2027. The commenter also requested
that EPA ``condition the effectiveness of such requirements on the
development of new certification standards for contractors.''
Response: EPA responds to this comment that the Agency solicited
comments in an ANPRM related to technician training, certification, and
other considerations. The Agency acknowledges the comment related to
requiring certain recordkeeping and/or certification standards for
contractors and considers this comment related to the ANPRM. As such,
the Agency is not addressing the comment at this time.
As discussed earlier in this section, EPA is establishing a
discrete reporting requirement for relevant data to be submitted to the
Agency to evaluate the availability of reclaimed HFC refrigerants being
supplied for servicing and/or repair of refrigerant-containing
equipment in the supermarket systems, refrigerated transport, and
automatic commercial icemakers subsectors. EPA is establishing these
reporting requirements to be prior to the compliance date of the
requirements for reclaimed HFC refrigerants used for servicing and/or
repair in these subsectors. EPA intends to consider the reported data
and evaluate the requirements that begin as of January 1, 2029.
Comment: One commenter claimed that subsection (h)(2) does not give
EPA authority to require the use of reclaimed substances or
substitutes. The comment stated that subsection (h)(2) simply provides
that ``[i]n carrying out this section'' EPA is to ``consider the use''
of authority under ``this section'' with regard to opportunities for
reclaim. The commenter asserted that this provision must be read within
its statutory context and does not provide EPA with authority to
utilize authority contained outside of subsection (h). The commenter
stated that subsection (h)(2) is ``most naturally read'' to mean that
when instituting regulations relating to servicing, repair, disposal,
or installation of equipment, EPA consider opportunities for
refrigerant reclamation. The commenter also stated that EPA cites no
legislative history to support a broader interpretation of (h)(2), and
asserts that EPA is arbitrarily creating an unauthorized, mandatory
market for reclaimed HFCs based on its reading of the purposes of this
section, while simultaneously claiming that market forces alone will
increase the amount of reclaimed HFCs available. The commenter further
stated that there is no ``market failure'' for EPA to correct via
regulation, and that market forces should take precedence.
Response: Although the commenter does not specify which part of
subsection (h)(2) of the AIM Act the comment is referencing, the
Agency, based on the excerpt quoted (which appears in subsection
(h)(2)(A) of the Act) interprets this comment to relate to subsection
(h)(2)(A) but not subsection (h)(2)(B), which as discussed elsewhere in
this notice pertains to reclamation of recovered HFC refrigerants. As
discussed in the proposal and in this final rule, the Agency has
considered the use of authority available to the Administrator to
increase opportunities for reclamation of HFCs used as refrigerants in
developing the requirements established in this rule. As this action is
taken under subsection (h) of the Act, EPA need not address the
application of subsection (h)(2)(A) to other subsections of the AIM
Act, and to the extent that the comment relates to other subsections of
the Act it is beyond the scope of this rulemaking and thus requires no
further response. As discussed in more detail elsewhere in this
preamble and in other responses to comment, EPA interprets the
requirements established in this final rule to perform servicing and/or
repair of certain appliances in certain sectors or subsectors with
reclaimed HFCs as being within the scope of its regulatory authority
under subsection (h)(1) of the Act. Subsection (h)(1) of the AIM Act
directs the Agency to establish regulations to control, where
appropriate, practices, processes, or activities regarding the
servicing or repair of equipment that involves a regulated substance or
the reclaiming of a regulated substance used as a refrigerant. The
relevant provisions in the final rule control the servicing and/or
repair of certain refrigerant-containing equipment by requiring that it
be done with reclaimed HFCs and thus are within this authority and
support the purpose of maximizing reclaim of HFCs. This interpretation
is based on the text of subsection (h), as the available legislative
history for the AIM Act is very limited, and the commenter does not
cite any statutory text or legislative history to suggest that this
interpretation is inconsistent with Congressional intent. Given that
the statutory text in subsection (h)(1) identifies particular purposes
for regulations established under this provision, it is reasonable to
consider those purposes in establishing such regulations, as EPA is
doing in this rule. The Agency disagrees with the commenter's assertion
that these requirements arbitrarily create an unauthorized, mandatory
market for reclaimed HFCs. While EPA acknowledges that existing market
dynamics may incentivize the use of reclaimed refrigerants over time,
as explained elsewhere in this final rule, the Agency disagrees with
the conclusion that those possible incentives mean this requirement is
unneeded or that those market dynamics mean that the Agency should not
establish these requirements. Congress put particular weight on
reclamation in subsection (h) of the AIM Act, including through the
provisions of (h)(1) and (h)(2)(A) referenced previously in this
response. Even assuming that market dynamics or implementation of other
programs lead to some additional use of reclaimed refrigerant over
time, the commenter did not provide any reason to think that those
factors alone would ``maximize'' reclamation as stated in subsection
(h)(1). It is the Agency's view that the reclaim requirements
established in this action will help increase reclamation and support
additional recovery of HFC refrigerants, are within its authority under
subsection (h) of the Act, and will help serve the purposes identified
in that subsection.
Comment: One commenter requested that EPA revise its proposed
language in sections 84.112(e) and (f) to specify that all permissible
substitutes will continue to be allowed for servicing and repair. The
commenter stated that EPA's proposed regulatory language in sections
84.112(e) and (f) could be read to require that refrigerant-containing
appliances in the identified subsectors may only be serviced and
repaired with reclaimed HFCs, to the exclusion of substitutes.
The commenter stated that robust demand for reclaimed HFC
refrigerant already exists and will continue to grow significantly due
to the AIM Act's phasedown of HFCs. The commenter requested that EPA
revise its proposed language to specify that all permissible
substitutes will continue to be allowed for servicing and repair and
include a regulatory exception to relieve the obligation to comply
where there is an inadequate supply of reclaimed HFCs to meet service
and repair needs in the identified subsectors.
Response: EPA responds that substitutes for HFCs can be used in the
servicing and/or repair of refrigerant-containing equipment in the
RACHP subsectors included in this rulemaking (i.e., supermarket
systems, refrigerated
[[Page 82792]]
transport, and automatic commercial ice makers). The proposed
regulatory text at section 84.112(f) was intended to require that the
servicing and/or repair of refrigerant-containing equipment in these
subsectors must be done with reclaimed HFCs, where those pieces of
refrigerant-containing equipment use a refrigerant containing an HFC,
but would not apply to refrigerant that contains no HFCs or to any non-
HFC constituents in the refrigerant. For example, if an owner or
operator uses CO2 as the refrigerant in its existing
supermarket system, they would not be required to service and/or repair
the refrigerant-containing equipment with reclaimed refrigerant, since
such equipment is not using a refrigerant that contains an HFC. EPA is
finalizing revisions to the regulatory text to make this intent clearer
in response to this comment but does not view these edits as changing
the substance of the provision. As discussed elsewhere in this
preamble, EPA is not finalizing in this rule, the proposed requirement
for the initial charge of new refrigerant-containing equipment with
reclaimed HFCs and thus, is not making parallel edits to that
provision. For the reasons described in a prior response to comment in
this section, the Agency does not agree that exceptions are needed for
the requirements to service and/or repair existing equipment in the
covered subsectors using reclaimed HFCs when there is an inadequate
supply and thus is not finalizing such an exception. The Agency
recognizes that commenter's points on the existing market for reclaimed
HFCs and agrees with that commenter's views that this market will in
fact grow. The Agency is finalizing provisions to support and encourage
growth in reclamation.
Comment: One commenter suggested EPA allow the use of reclaimed
refrigerant for servicing in 2025 to be credited against compliance
obligations in future years. Another commenter requested that EPA
confirm that exports of virgin HFCs will be eligible under the Request
for Additional Consumption Allowance (RACA) program, regardless of when
the original HFCs or individual blend components were imported. The
commenter added that it is critical that the RACA program, under 40 CFR
84.17, be available to obtain allowances for HFCs that can be used in
the United States and that EPA has projected will be available in the
market. The commenter stated that this is essential to minimizing
stranded assets and preventing further disruptions to the market that
would ultimately effectuate significant commercial harm to the after-
market and ultimately to consumers).
Response: EPA disagrees with the suggestion that the Agency allow
the use of reclaim refrigerants for servicing and/or repair in 2025 to
be credited against compliance obligations for future years. The Agency
did not propose and is not finalizing any sort of early crediting
regime. In the NPRM, EPA did discuss scaling the reclaim requirements
for servicing and/or repair on a percentage basis, but as discussed in
responses earlier in this section, the Agency is not finalizing that
approach. However, EPA encourages early action by industry to support
the uptake of reclaimed HFC refrigerants ahead of the compliance date.
Comments or requests concerning the structure of the allocation
program are beyond the scope of this rulemaking. However, the Agency
notes, allowing entities to receive allowances for the reclamation of
refrigerant would artificially inflate the number of allowances in the
market.
EPA agrees that the RACA process under 40 CFR part 84 subpart A is
important to allowance holders. EPA is not modifying that RACA program
in this rulemaking, and EPA further notes that the reclamation
requirements for servicing and/or repair of refrigerant-containing
equipment in certain subsectors in this rulemaking will not impact the
RACA program.
Comment: Another commenter recommended that EPA not replicate
California's HFC programs because California State law has no bearing
on how the Agency interprets the AIM Act and because the State's
current R4 Program is short term in nature. The commenter stated that
EPA should avoid adopting different regulatory provisions based on
State law instead of the intentional design of the AIM Act. The
commenter claimed that the R4 Program was created as an interim measure
after CARB finalized sector control limits that could not be
implemented by the effective date. The commenter suggested that EPA
consult with OEMs to understand the complications and burden of the R4
Program when the first reports are due in July 2024 and not to adopt
provisions until after this.
Response: EPA acknowledges these comments and responds that the
Agency proposed a rule and is now establishing provisions based on that
proposal that are in correspondence with the AIM Act, not a State's
regulation or legislation. EPA referenced and reviewed multiple States'
programs and policies in place or under consideration, including the
California regulations, when developing the proposed rule. The Agency
reviewed these regulations for informational purposes and awareness of
what was being implemented under those programs; however, EPA did not
propose and is not finalizing regulations that mirror, fully, any
specific State requirements, nor was it the Agency's intent to do so.
EPA consulted with many different stakeholders when developing the
proposal, including information from comments received on the Agency's
NODA, through multiple webinars, and through the comment period,
including from OEMs. EPA is finalizing requirements for the servicing
and/or repair of refrigerant-containing equipment in certain RACHP
subsectors and is not finalizing requirements for reclaimed HFC
refrigerants in the initial fill of refrigerant. The Agency
acknowledges that in many instances, the industry seeks alignment with
Federal and State regulations. However, this regulation is being
finalized consistent with, and to serve the particular purposes of and
direction in, subsection (h) of the AIM Act, and EPA understands that
States are promulgating regulations based on their State authorities.
Comment: EPA received a few comments on establishing requirements
for refrigerant recovery. One commenter was disappointed that EPA did
not propose requirements that would increase recovery of refrigerants
from existing equipment, but instead focused requirements on increasing
demand for reclaimed refrigerant. The commenter stated that government
mandates are not needed to increase demand through the HFC phasedown
and that such solutions will not maximize reclamation. The commenter
also stated that there does not appear to be a bias for or against
reclaimed refrigerant according to distributors, so the emphasis should
be on increasing refrigerant recovery. The commenter suggested that, if
mandates are put in place, such mandates should be visible to the
technician community by creating access to reclaimed refrigerant to
create an incentive to increase their recovery rates. The commenter
claimed that technicians understanding that reclaimed refrigerant must
be used in servicing and that no additional virgin material is allowed
will have a better understanding of why recovery is required.
Another commenter stated that not only is recovered refrigerant not
reaching reclaimers, there also seem to be stockpiles not turned in to
reclaimers. The commenter also stated that they have heard that it
takes too long to recover refrigerant, especially R-410A. The commenter
noted that this
[[Page 82793]]
could be because of using the recovery equipment for R-22 instead of R-
410A. The commenter suggested that EPA may want to consider using some
of its funding for small contractors serving low and medium-income
communities to apply for grants or to outright purchase the correct
recovery equipment. The commenter further suggested that EPA may wish
to interview contractors to better understand the challenges they face
with recovery and price points to incentivize purchasing reclaimed
refrigerant. The commenter noted that despite these relatively high
prices, reclaim rates have never been above 5,000 metric tons per year
for HCFC-22, even with a complete ban on newly produced HCFC-22 for
servicing, according to EPA's Summary of Refrigerant Reclamation.
One commenter states that the proposed rule did not pay sufficient
attention to the role of recovery in maximizing reclamation. The
commenter further proposed that, given the central role recovery plays,
EPA should initiate a new rulemaking under subsection (h) of the AIM
Act as soon as possible to ensure these and other issues related to
recovery are adequately addressed before any further reclaim mandates
are considered.
Another commenter recommended considering process enhancements to
reduce refrigerant contamination before reuse or return for reclaim
arguing that many reclamation facilities without fractional
distillation capacities cannot separate components when contamination
is above 15 percent. The commenter requested that EPA evaluate how much
refrigerant is returned contaminated and how much is destroyed annually
and integrate tools to reduce cross-contamination to maximize the
potential for reusing refrigerants.
One commenter stated that increasing the recovery of HFCs for
reclamation is essential for economic growth and other environmental
benefits, while another commenter stated the importance of mandates for
increased recovery is needed to support reclamation. Another commenter
noted that financial incentives for technicians may be effective to
enhance recovery of HFCs. Another commenter stated that in addition to
incentivizing recovery, regulations can be effective for enforcement of
recovery of HFCs.
One commenter stated that the requirements for reclaimed HFCs would
lead to increased demand for reclaimed HFCs and thus incentivize
recovery of HFCs; however, additional measures may also be needed to
bolster recovery. The commenter requested that EPA consider
establishing a standard for equipment used to recover refrigerant to
control leakage during recovery.
Response: EPA responds to these comments that requirements
established for the recovery of HFCs from equipment would be related to
those requirements for technicians and contractors performing the
actual recovery. EPA understands that critical link between recovery
and reclamation and agrees that increased recovery of refrigerants
supports the increased reclamation of those refrigerants. The Agency
views requirements related to recovery under the authority of
subsection (h) of the AIM Act, as they are related to practices,
processes, or activities related to the servicing, repair, or disposal
of equipment. Recovery of the refrigerant would likely be a practice,
process, or activity required to remove the charge of refrigerant to
repair the equipment or would be performed during the process of
disposing the equipment to recover the refrigerant before it is
disposed. EPA views such practices, processes, or activities as those
performed by a technician or contractor, and the Agency refers to the
ANPRM published related to technician training, certification, and
other considerations. The Agency, thus, acknowledges these comments and
will consider them for a future rulemaking under subsection (h) of the
AIM Act.
EPA acknowledges comments related to using the proper recovery
machines to recover refrigerants from equipment. EPA also notes that
certified recovery equipment is required for such practices, as handled
under other regulations under the CAA.\116\ EPA acknowledges the
comment related to grant funding for recovery equipment and notes that
such considerations are outside of the scope of this rulemaking. EPA
agrees there is value in understanding challenges faced with recovery
of refrigerants. As previously stated, EPA solicited comments in an
ANPRM on considerations related to technicians and, while not
addressing in this rulemaking, the Agency will review and consider
those for future rulemakings.
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\116\ EPA has established standards for recovery and/or
recycling equipment under section 608 of the CAA for the service,
repair, or disposal of appliances containing ODS and ODS substitutes
(e.g., HFCs) under 40 CFR 82.158. Additionally, EPA has standardized
equipment for the servicing of refrigerant from MVAC systems under
CAA section 609, and any technician servicing equipment for
consideration must use approved refrigerant handling equipment
pursuant to 40 CFR 82.36.
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Comment: One commenter suggested that there is evident viability of
on-site recycling during the refrigerant recovery process for HVACR
appliances. The commenter stated that as long as HVACR technicians use
AHRI 740 certified equipment and establish refrigerant identification
protocols, the recycled refrigerant will be suitable for reuse within
the same system. The commenter recommended that this industry learn
from the successes that the MVAC industry has had with refrigerant
reclamation. The commenter also recommended that there be a defined
process to qualify refrigerant for reuse in the field alongside on-site
analyses. In addition, the commenter stated that a refrigerant
identifier or analyzer should be present. The commenter noted that such
measures are fundamental to the safe and proper recycling of
refrigerants to mitigate risks associated with the use of unqualified
or contaminated refrigerants and to provide an alternative to
reclaiming all refrigerant extracted.
Response: EPA responds to this comment that on-site recovery and
recycling for stationary refrigerant-containing equipment is a current
practice in industry, such that the recovered refrigerant is used in
the same piece of refrigerant-containing equipment or is recovered and
used in another piece of refrigerant-containing equipment of the same
owner. This practice is consistent with the requirements under 40 CFR
82.156(h), which are applicable to appliances containing ODS
refrigerants as well as certain substitutes for ODS refrigerants (e.g.,
HFCs). This rulemaking does not affect such practice and EPA notes that
HFC refrigerants that are recovered can continue to be recycled to the
same piece of refrigerant-containing equipment that the HFC refrigerant
was recovered from or another piece of refrigerant-containing equipment
under the same ownership.
EPA recommends but does not require the use of refrigerant
identification technology in the servicing of AC systems. EPA agrees
that refrigerant analyzers are an important tool to identify
contaminated systems and to prevent a technician from charging the
incorrect refrigerant into an air conditioning system. While not
addressed in this rulemaking, EPA considers this comment to fall under
the scope of the ANPRM as it relates to considerations for technicians.
As explained in section VIII below, EPA is not responding to comments
related to the ANPRM in this final rule.
Comment: One commenter stated that the proposed rule disrupts the
supply
[[Page 82794]]
chain by creating a captive market where specific market transitions
are mandated, losing economic incentives to lower the costs of
products. The commenter claimed that the proposed rule requires that
OEMs and technicians buy reclaimed HFCs, creating a closed market with
a finite amount of reclaimed HFCs. The commenter claimed that EPA has
not analyzed the cost impact of such an unbalanced, artificial market
to the end consumer, nor the potential concentration of a finite
reclaimed HFC supply within a small number of suppliers. The commenter
recommended that proposed mandates be validated by robust supply/demand
modeling.
Response: EPA responds to the commenter's concerns for a closed
market and relevant analysis. This rulemaking does not limit the
production or consumption of HFCs. HFCs will continue to be produced
and imported in accordance with the phasedown schedule. HFCs will be
available to be sold and distributed for a range of eligible
applications. It is likely that as the phasedown continues, shifts in
which HFCs are produced and imported will occur as well. The Agency
notes and directs interested readers to the Allocation Framework Rule,
where the Agency discussed more fully the use of an exchange value
weighted approach rather than a chemical-to-chemical approach to
phasing down HFCs.
The Agency acknowledges that by requiring the servicing and/or
repair of refrigerant-containing equipment with reclaimed refrigerant
in certain RACHP subsectors, the Agency is precluding the use of virgin
HFCs for servicing and/or repair in those applications. The Agency
disagrees that requiring the servicing and/or repair of refrigerant-
containing equipment with reclaimed HFCs in certain subsectors would
create any sort of monopoly, as EPA has not mandated that stakeholders
purchase refrigerant from any specific entity.
The Agency notes that there are over 50 certified reclaimers in the
United States. Therefore, there will be sufficient competition among
those reclaimers to supply reclaimed HFCs. The Agency further notes
that there are only five HFC producers with production facilities in
the United States, and often there is only one facility producing each
of the HFCs that are produced domestically, with other HFCs only
available through imports. Supply of virgin HFCs is significantly
augmented by imports, and on an annual basis between 2024 and 2028,
there are, or will be, approximately 75 companies with EPA-issued
consumption allowances that allow them to legally import virgin or
reclaimed HFCs.
EPA has analyzed the compliance costs and benefits for using
reclaim requirements in the Economic Impact and Benefits TSD included
with this rulemaking. Results from this analysis indicate that
requiring the servicing and/or repair of refrigerant-containing
equipment with reclaimed HFCs in the covered subsectors by this
rulemaking may result in incremental costs to industry while also
reducing demand for virgin HFCs. This reduction in demand may in turn
reduce costs to industry by alleviating potential supply shortages,
although EPA has not quantified such cost savings in its analysis. A
study \117\ cited by EPA in the Economic Impact and Benefits TSD and
comments EPA has received from at least one reclaimer of HFCs also
indicate that the use of reclaimed HFCs may actually be on par with or
more cost-effective than the use of virgin HFCs. Therefore, EPA has
included a sensitivity analysis in its Economic Impact and Benefits TSD
in which the use of reclaimed HFCs is assumed to be cost-neutral.
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\117\ Yasaka, Yoshihito, et al. ``Life-Cycle Assessment of
Refrigerants for Air Conditioners Considering Reclamation and
Destruction.'' Sustainability, vol. 15, no.1, 2023, p. 473,
doi:10.3390/su15010473.
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Comment: One commenter claimed that the existing record does not
show a current need for the requirements for the use of reclaimed HFCs
in certain RACHP subsectors, noting that the proposed rule extols the
successes of recycling and reclaiming Class II ODS. The commenter cites
EPA's Draft Report--Analysis of the U.S Hydrofluorocarbon Market:
Stakeholders, Drivers, and Practices (September 2023) in arguing that
the use of recycled/reclaimed HFCs was already anticipated as a path to
compliance with the phasedown. Further, the commenter noted that among
impediments to the U.S. reclaim market noted in the draft report,
inadequate demand for reclaimed HFCs was not identified as such an
impediment to the market. The commenter also stated that environmental
benefits estimated for the requirements for using reclaimed HFCs are
non-existent, and that the requirements could result in shifting
allowance use to meet demand in other sectors and subsectors.
Response: EPA responds that the requirements for reclaimed HFC
refrigerants in the servicing and/or repair of refrigerant-containing
equipment in certain RACHP subsectors are being established under
subsection (h)(1) of the AIM Act, which provides EPA with the authority
to promulgate regulations to control, where appropriate, ``any
practice, process, or activity, regarding the servicing, repair,
disposal, or installation of equipment'' for purposes that include
maximizing reclamation and minimizing releases of HFCs from equipment.
EPA views these requirements for using reclaimed HFC refrigerants in
the servicing and/or repair of refrigerant-containing equipment as
controlling a practice, process, or activity regarding the servicing
and/or repair of such equipment, and as helping serve the purpose of
maximizing reclamation, as the requirements present opportunities for
increased recovery of used refrigerants and use of and demand for
reclaimed HFCs and thus increased reclamation. Even assuming increased
recycling or reclamation is anticipated to occur under the phasedown,
the commenter provides no reason to think that such voluntary increases
alone would be sufficient to serve the statutory purpose identified in
subsection (h)(1) of maximizing reclamation. To the extent that the
commenter suggests that EPA must demonstrate a particular degree or
magnitude of current need to establish regulations under subsection
(h)(1), EPA disagrees, as such a requirement is not explicitly stated
in the statutory language of subsection (h). Nonetheless, for the
reasons described earlier in this response and elsewhere in this final
rule, the Agency concludes that these requirements are appropriate to
serve purposes identified in subsection (h)(1) and to implement that
provision.
EPA acknowledges that inadequate demand was not identified as a
barrier to increased reclamation in the Draft Report. However, as the
Agency explains in this rulemaking and consistent with the proposed
rule, these provisions are expected to support additional recovery of
HFC refrigerants and, thus, reclamation. As noted in a previous comment
response, EPA's Economic Impact and Benefits TSD does not include
increased recovery in the base case for this rule based on the
assumptions for that scenario; however, EPA did consider an alternate
scenario with increased recovery and anticipates that the reclamation
provisions could support increased recovery during servicing or
disposal where the refrigerant may otherwise have been vented or
released. EPA notes that the barriers described in the Draft Report
were intended to capture the status of the reclamation industry and
inform this rulemaking. The Draft Report identified barriers such as
separating
[[Page 82795]]
mixed refrigerants and refrigerant release events (e.g., leakage during
operation or venting at EOL), among others. The provisions in this rule
and current market dynamics help to address these barriers. This final
rule is expected to encourage reclamation and drive innovation in
separation technologies as well as capacity of these technologies to
meet the estimated demand of reclaimed HFCs related to the requirements
in this rule. Further, the requirements related to leak repair and ALD
systems will lead to reduced amounts of emissions of refrigerants from
appliances; thus, ensuring additional material is available to be
recovered and reclaimed.
The Agency acknowledges that allowance use for virgin HFCs may
shift related to the provisions established in this rulemaking.
However, the Agency anticipates that any such shifts in use of
allowances would be related to allowances needed for difficult to
transition applications where a path to substitutes for HFCs is less
clear at this time. Further, even assuming such shifts occur, they do
not provide a reason to not finalize the requirements in this rule. If
anything, they merely provide an example of how implementation of this
rule may also have the effect of assisting in supporting implementation
of other programs under the AIM Act.
Comment: One commenter suggested that EPA did not analyze the
economic cost and consumer pricing impacts of the HFC supply and demand
mismatch. The commenter stated that EPA's awareness of impact without
analysis is not consideration of relevant factors required by
subsection (h). The commenter stated that the NPRM does not estimate
the costs of resetting the market through new customer/supplier
relationships, and the commenter further stated that restricting HFC
quantities would increase refrigerant prices. The commenter stated that
certain refrigerants from producers (e.g., certain HFC-32 lines) may no
longer be economically viable and stated that the NPRM should have
considered the likelihood of stranding production assets. The commenter
additionally asserted that the reclaim mandate eliminates incentives to
develop low-GWP blends with an HFC component, and recommended that EPA
base any reclaim requirement on robust and appropriate data.
Response: The HFC allowance allocation system is out of scope for
this rulemaking; however, EPA reminds readers that the United States is
phasing down HFC production and consumption. The overall phasedown of
HFCs will result in changes in production and consumption of specific
HFCs and blends. Furthermore, the commenter mischaracterizes the
relevant factors for this rulemaking. The Agency has provided an
analysis of the costs and benefits of this rule for informational
purposes and to address E.O. requirements. The Agency does not rely on
this information as a record base for this rule and would have reached
the same conclusions without this analysis. Instead, this rule is
focused on serving the statutory purposes identified in subsection (h),
which are maximizing reclaiming and minimizing the release of regulated
substances from equipment and ensuring the safety of technicians and
consumers.
EPA disagrees that the proposed rule disincentivizes the
development and deployment of low-GWP blends. As noted elsewhere, the
overall phasedown of HFC production and consumption, as well as the
2023 Technology Transitions Rule, will affect both the overall supply
and demand for virgin HFCs. The Agency does not agree that this rule
results in a mismatch of supply and demand. Nor does the Agency
consider this rule as contributing to a disincentive for U.S.
innovation. The Agency further notes that innovation can come in many
forms. It could be the introduction of new chemistry, and it also could
include better and more efficient ways to recover and reuse HFCs,
including through HFC reclamation technologies.
Further, EPA is establishing a reporting requirement in this
rulemaking for information related to the availability of reclaimed HFC
refrigerants in the supermarket systems, refrigerated transport, and
automatic commercial ice makers subsectors. EPA intends to assess the
reported data and consider further evaluating the established
requirements for reclaimed HFC refrigerants in the servicing and/or
repair of refrigerant-containing equipment in these subsectors.
Comment: One commenter expressed concern that there is no plan for
banned virgin refrigerants that can no longer be used for service in
the proposed sectors. The commenter claimed that these virgin
refrigerants would have no value. The commenter stated that EPA has not
done research to determine the quantity of HFCs currently stockpiled in
the country (imported before the AIM Act) and that this quantity is
large. The commenter recommended a carbon credit program for destroyed
HFCs and stated that without such a program the price of virgin HFCs
will drastically decline as distributors with stockpiles sell this
material, limiting the number of system retrofits to lower-GWP
refrigerants. The commenter noted that this would continue until late
2027, at which point companies would be forced to change or use
expensive and scarce refrigerant to service equipment, leaving
considerable virgin material with no value and no destruction and
carbon credit program. The commenter questioned if there was a need to
speed up the HFC phasedown that is already in place.
Another commenter stated that the requirements for using reclaimed
HFC refrigerants for refrigerant-containing equipment in certain RACHP
subsectors could have adverse effects on existing allowance holders by
denying them customers and therefore harming business plans and
investments.
Response: EPA disagrees that a specific plan is needed for the
virgin HFCs that would have been used for the servicing and/or repair
of refrigerant-containing equipment in the covered RACHP subsectors
where this rule requires that those activities be done with reclaimed
HFCs. EPA also disagrees that these virgin HFCs would have no value, as
they could still be used other applications, such as the servicing and/
or repair of refrigerant-containing equipment in other RACHP
subsectors. Furthermore, the Agency is not at this time finalizing
requirements for the initial charge of refrigerant-containing
equipment, and the virgin HFCs could be used in these cases. EPA notes
that the requirements to service and/or repair refrigerant-containing
equipment in the supermarket systems, refrigerated transport, and
automatic commercial ice makers subsectors will be effective beginning
January 1, 2029. Regulated entities would have approximately four years
to determine how to best use any remaining virgin HFCs that they own,
which includes the option to continue servicing and/or repairing
refrigerant-containing equipment with any virgin HFCs they own until
these requirements are effective.
The Agency disagrees with the need to establish a destruction
program for virgin HFCs for generating carbon credits. As stated above,
EPA disagrees with the commenter's statement that virgin HFCs would
lose their value, as they could be used in other applications. Further,
the Agency notes that it has been more than 30 years since the CFC
phaseout, yet there is still demand for reclaimed CFCs, indicating
there is continued demand for these substances. EPA believes there will
continue to be demand for both virgin and reclaimed HFCs as the
phasedown progresses and even after the final step of the phasedown,
when 15 percent of
[[Page 82796]]
the baseline of production and consumption of virgin HFCs will be
allowed. EPA discusses this in a prior response in this section, noting
that any such program would, among other things, need to consider
additionality of any generated credits and moreover such consideration
of carbon credits is outside of the scope of this rulemaking. EPA notes
that the phasedown of production and consumption addresses virgin HFCs
by reducing the overall levels in a stepwise fashion while not
precluding their use generally in a range of acceptable applications.
Regarding comments about stockpiles of HFCs in the United States, the
Agency responds that as with the CFC phaseout, the Agency anticipates
the continuing demand for these HFCs in the multitude of acceptable
applications. The 2024 Allocation Rule provides additional detail
related to assessing stockpiling and how that is considered in the
methodology for allocating allowances.\118\ EPA notes that allocation
of allowances is out of scope for this rulemaking.
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\118\ 88 FR 46843, July 20, 2023.
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EPA disagrees that this rulemaking would accelerate the phasedown
of HFCs under the AIM Act, which would require meeting specific
criteria as provided in subsection (f) of the AIM Act. EPA responds to
comments regarding the acceleration of the phasedown in an earlier
response in this section.
EPA disagrees that the requirements for the servicing and/or repair
of refrigerant-containing equipment with reclaimed HFCs in certain
RACHP subsectors would drastically disrupt current allowance holders'
business plans. EPA is not establishing requirements for reclaimed HFC
refrigerants in the initial fill of refrigerant-containing equipment in
this rulemaking. Such requirements are only for the servicing and/or
repair of refrigerant-containing equipment in certain RACHP subsectors.
Most of these existing types of equipment are currently using
refrigerants that contain HFCs that have been in equipment for an
extended period of time. As such, these types of refrigerant-containing
equipment are likely to continue to rely on reclaimed HFCs as the
phasedown progresses. EPA does not dictate how allowance holders use
their allowances but understands that some may use allowances for
refrigerants that contain HFCs that would be compliant with the 2023
Technology Transitions Rule. Further, as noted above, EPA is
establishing a compliance date of January 1, 2029, for the requirements
for reclaimed HFC refrigerants for servicing and/or repair of
refrigerant-containing equipment in certain RACHP subsectors. This
period of approximately four years provides entities with time to
secure and adjust business relationships as needed.
Comment: One commenter recommended that, if after each three-year
period (starting in 2028) EPA requires each consumption allowance
holder to acquire a quantity in exchange value equivalent metric tons
of reclaimed HFCs produced by any U.S. reclaimer equal to a portion of
their consumption allowance allocation (capped at a maximum five
percent to reasonably balance the supply of reclaimed material with
consumption holder demand) and the program remains necessary, then the
percentage be adjusted for the following three-year period based on
changes over the prior three-year period in reclaim capacity and
availability, the supply of HFCs, and market demands. The commenter
stated that the program could include exemptions for de minimis
allowance holders and economic hardships, such as lack of reclaimed
HFCs in the market or unreasonable prices.
Response: EPA responds that this comment is out of scope for this
rulemaking. EPA did not propose or seek comments on changes to the
allowance system codified at 40 CFR part 84, subpart A.
Comment: One commenter stated that if EPA goes forward with these
requirements, it should make grant funding available to offset the
increased costs associated with purchasing reclaimed HFC refrigerant,
and the requirement should be imposed only on grant recipients.
Response: EPA notes that establishment of grant funding is outside
the scope of this rulemaking.
Comment: One commenter expressed concern that the proposed rule
could impact smaller businesses by adding tasks for recovering HFCs and
for related logistics and that burdensome demands coupled with
potentially unrealistic reclaim targets may divert resources from core
operations and stifle innovation of the value chain.
The commenter further stated that requirements for reclaimed
refrigerants at the OEM level is impractical, and that the Agency
should shift its regulatory scope to focus on chemical producers and
importers, which could allow the Agency to reduce its burden on small
businesses and reduce supply chain disruptions and costs. The commenter
stated that it will be difficult for the Agency to achieve its goal of
regulating anyone who produces, imports, reclaims, repackages, or fills
a container with a regulated substance used in servicing, repair, or
installation of equipment by regulating at the wholesaler/distributor
or contractor level. The commenter asserted that doing so would require
extensive container tracking and reporting frameworks alongside
enforcement mechanisms. The commenter claimed that since a majority of
wholesalers and contractors are small businesses, EPA would have to
complete EPA's Small Business Ombudsmen assessment. Additionally, the
commenter claimed EPA would have to regulate over 1,000 wholesalers/
distributors and 200,000 contractors, making enforcement more
difficult. Additionally, the commenter stated that EPA would require
significant support from industry, potentially delaying implementation.
Alternatively, the commenter stated that EPA should regulate
reclaim at the producer/importer level. The commenter mentioned that
chemical producers/importers are already regulated under the AIM Act,
and that these entities already have established infrastructures to
report sales, imports, production, and destruction of refrigerants. The
commenter continued that regulating at the point of sale would make
implementing reclaim requirements easier, reduce the number of
companies that EPA would have to regulate, and allow for more effective
communication and collaboration between EPA and the regulated entities.
The commenter further noted that 14 companies control 89% of the
consumption allowances and that eight of these 14 are reclaimers
themselves, reducing the need for new infrastructure and investment.
The commenter stated that this approach would also reduce the burden on
small businesses.
Response: EPA disagrees with the commenter both on the small
business impacts associated with recovering refrigerant and with how
those impacts would be affected by the reclamation provisions. The
Agency conducted a small business screening analysis and refers readers
to section VI of this preamble and to Appendix G of the Economic Impact
and Benefits TSD. The commenter did not provide sufficient information
to explain how these provisions would divert resources from core
operations and stifle innovation of the value chain. EPA considered
supply chain and logistics when drafting the rule, including
projections of future refrigerant supply. Based on these projections,
EPA determined that finalizing requirements for the servicing and/or
repair of refrigerant-containing
[[Page 82797]]
equipment with reclaimed HFCs in the covered subsectors is feasible.
EPA responds to the commenter's suggestion to regulate reclaim at
the producer/import level by noting that it is not clear to the Agency
how such a regime would work in practice. The commenter provides
information on the potential benefits of efficiency and a reduced
number of regulated entities, but does not make clear statements how
this program could work. The commenter States that the existing
framework under 40 CFR 84 could simplify to implementation for point of
sale for the reclaim requirements. However, it is unclear how the
majority of reclaimers who are not importers or who do not receive
allowances would operate under such a program for the effective
implementation of the requirements for reclaimed HFC refrigerants for
servicing and/or repair of refrigerant-containing equipment in certain
RACHP sectors. Further, to the extent that this comment relates to
proposed requirements that EPA is not finalizing at this time, EPA
notes that it is not responding to comments on those aspects of the
proposal in this final rule.
Comment: One commenter stated that to purchase ``reclaim
materials'' in the market, a company would need to be an EPA-certified
reclaimer; have reporting responsibility under EPA's HAWK (HFC and ODS
Allowance Tracking) \119\ electronic reporting system; demonstrate
analytical chemistry and blending capabilities; avoid engaging in
transshipping or various import schemes; demonstrate chain of custody
ability; have a fleet of refillable cylinders; and maintain a physical
reclamation facility in the United States. The commenter asserted that
a company should not be engaged in simply drop-shipping refrigerants to
actual EPA-certified reclaimers to control access to the market.
Similarly, no company involved in market manipulation or illegal
imports should be allowed to grow market share by forcing small
reclaimers out of the market and purchasing their allowances. Given the
increased emphasis the proposed rule places on the role of EPA-
certified reclaimers, the commenter recommended that EPA develop
enhanced requirements for reviewing the qualifications of certified
reclaimers. The commenter noted that this process should also involve
the inclusion of individuals on their hotline who are not reclaimers
but are buying material.
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\119\ EPA's HAWK electronic reporting system can be accessed
through the Electronic Greenhouse Gas Reporting Tool (e-GGRT).
Regulated entities that are subject to reporting requirements under
the AIM Act submit reports this electronic reporting system.
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Response: EPA acknowledges this comment. EPA understands the term
``reclaim materials'' to refer to recovered materials that are
available to be reclaimed. The Agency appreciates these considerations,
but notes that it is neither reopening nor modifying the criteria and
qualifications for certification for reclaimers under 40 CFR part 82,
subpart F in this rulemaking. EPA has established recordkeeping and
reporting requirements for reclaimers under both the AIM Act and CAA
section 608. In addition to these requirements, starting in 2024, EPA
is requiring third-party auditing of EPA-certified reclaimers.
Information related to the auditing of reclamation facilities can be
found in 40 CFR 84.33.
Comment: One commenter recommended that EPA consider a mechanism
that would allow negotiations between entities to fulfill reclaim
requirements. The commenter stated that, for example, allowance holders
of refrigerants, who may not want to manage reclaim operations or
purchase reclaimed gas directly, could negotiate with another entity to
take on CO2 equivalent reclaim obligations, allowing smaller
entities to participate in the reclaim program without significant
investments in infrastructure or expertise. The commenter claimed that
this would make the reclaim program more accessible and flexible for
smaller allowance holders, promoting broader participation.
Response: EPA responds that EPA is not implementing a reclaim
program based on CO2 equivalency at this time. EPA notes
that the established requirements in this rulemaking may result in some
allowance holders purchasing reclaimed HFC refrigerants to service or
repair their equipment in the covered RACHP subsectors; however, EPA
does intend for all of these allowance holders to manage their own
reclamation operations. Reclaimers, who in some cases are also
allowance holders, are certified under 40 CFR 82.164. If an allowance
holder who is not already a certified reclaimer wishes to manage their
own reclamation operations, they would need to be approved by EPA to
become a certified reclaimer.
The Agency understands the availability of advanced reclamation
technology and describes some of these considerations in section IV.E.1
of this preamble, related to the reclamation standard. As EPA
understands, some reclaimers have access to more advanced separation
technologies to reprocess materials to proper specifications. These
advanced technologies can be useful for reclaiming more complex and
multi-component refrigerants blends. However, the Agency is
establishing that reclaimed refrigerant may still contain an amount of
virgin HFCs that may be necessary for reclaiming these blends. Further,
the Agency is not establishing requirements for the initial fill of
refrigerant-containing equipment with reclaimed HFCs in RACHP
subsectors, including those where newer blends of refrigerants that are
compliant with the 2023 Technology Transitions Rule would be used in
new equipment. By limiting requirements for reclaimed HFCs to servicing
and/or repair, EPA is focusing on existing equipment where more common
HFCs and HFC blends have been used for years and are currently being
reclaimed.
Comment: One commenter recommended that EPA put a per-pound deposit
on regulated refrigerants that would be refunded when the substance is
recycled. The commenter noted a potential downside due to the creation
of a market for stolen refrigerant but noted that recordkeeping
requirements would deter theft. The commenter suggested a balance
between a price that could encourage recycling but not encourage theft
and claimed that the cost would also support leak reduction measures.
The commenter also recommended monthly reporting of refrigerants given
the importance of the issue but noted a negative impact on consumers as
the cost of reporting increases. The commenter recommended relying on
market forces where possible and providing rewards for compliance.
Response: EPA did not propose and is not finalizing a refrigerant
deposit program. If in the future, the Agency were to consider such a
program, the Agency would evaluate the potential drawbacks of
implementing such a program (such as the potential for fraud and
increased recordkeeping or reporting burden) that could outweigh
potential benefits. EPA notes that the requirements in the rulemaking
have been established considering market conditions and other analyses
as described in the Economic Impact and Benefits TSD for this rule.
Comment: Another commenter supported the provision in section
84.104(a) to prevent resale of reclaimed refrigerant for any purpose
besides reclamation and recommended that there be explicit enforcement
mechanisms. The commenter requested that EPA provide clearer guidance
for
[[Page 82798]]
what enforcement would entail under this rulemaking.
Response: EPA acknowledges this comment and notes that this
provision is consistent with the statutory language in subsection
(h)(2)(B) of the AIM Act, which provides that recovered regulated
substances that are used as a refrigerant must be reclaimed before it
is sold or transferred to a new owner, unless the recovered regulated
substances are being sold or transferred to a new owner solely for the
purposes of reclamation or destruction. As described above, under 40
CFR part 82, subpart F, recovered refrigerant may be recycled and used
for servicing or repair of the same appliance or another appliance of
the same owner. EPA clarifies that this rulemaking does not prevent
that practice.
EPA notes that the provisions related to reclaimed refrigerant use
for servicing and/or repair of certain equipment build on the
established reclamation standard for limiting the virgin HFC content in
reclaimed refrigerant to 15 percent, by weight. This requirement, as
described in section IV.E.1 includes labeling, recordkeeping, and
certification requirements to ensure reclaimed refrigerants are meeting
the established standard. Certification must be provided to the
purchaser of the reclaimed refrigerants to verify that the product does
not exceed the limit on virgin HFCs. Thus, the purchaser can ensure
that reclaimed HFCs are appropriately used to service or repair
equipment in the covered subsectors of this rulemaking. Enforcement
action may be taken where virgin HFC refrigerant is used for servicing
or repairing equipment in the covered subsectors, where containers of
refrigerant do not have the proper labeling for reclaimed refrigerants
and records/certifications can be checked. Specific requests about what
more information is being asked for has not been described by the
commenter, and the Agency may consider issuing additional guidance in
the future.
Comment: One commenter expressed concern that the proposed rule
does not allow sufficient flexibility to spread reclaimed refrigerants
across the entire market, allowing for potential circumvention in the
aftermarket space. The commenter requested that EPA tailor reclaim
requirements for sectors and end users to create a more flexible,
practical, and achievable program. The commenter stated that reclaiming
many newer refrigerants with HFO components is currently impractical
and that EPA should proceed on a CO2e net basis to allow
producers to provide more virgin lower-GWP substances and offset them
with higher-GWP substances, in order to ensure both the transition to
low-GWP alternatives and continued reclaim activity and to encourage
the responsible transition to low-GWP refrigerants without hindering
the overall effectiveness of the reclaim program, with requirements
implemented at the producer or importer level to streamline AIM Act
reporting.
The commenter further stated that companies should be encouraged to
recover low-GWP refrigerants by receiving GWP credit towards compliance
requirements, incentivizing low-GWP recovery. The commenter requested
that EPA allow companies to voluntarily reclaim and place on the market
refrigerants exceeding the 2023 Technology Transitions Rule thresholds
beyond their percentage reclaim requirements and receive GWP credits.
The commenter claimed that these two measures would encourage a
consistent culture of refrigerant management across the industry,
reward companies for reclaiming, and pave the way for future
regulations. The commenter additionally proposed that EPA consider
requiring that businesses or persons offering refrigerant for sale or
distribution for service must receive recovered refrigerant for reclaim
in a ratio determined and updated by the Administrator, preferably
based on CO2 equivalents. The commenter stated that, if
implemented at the wholesaler/distributor level, this could be audited
using the proposed container tracking system.
Response: EPA acknowledges the commenter's interest in flexibility
and in spreading the requirements to service and/or repair refrigerant-
containing equipment with reclaimed HFCs across additional subsectors
as well as their concerns for reclaiming blends with HFOs. As described
above in section IV.E.1 of this preamble, EPA is establishing a limit
of 15 percent, by weight, virgin HFCs in reclaimed HFC refrigerants.
Further, EPA notes that it is not establishing a limit on the amount of
virgin HFC substitutes that can be used in a reclaimed refrigerant
blend and is thus not requiring reclamation of HFC substitutes.
However, EPA recognizes that for HFC/HFO blends the commenter is likely
referring to concerns with patents, licensing arrangements, and other
business practices that may limit who can reclaim certain newer
refrigerants. As discussed in a previous response in this section, the
Agency is aware of these practices. However, the Agency has considered
these concerns and made modifications to what it is finalizing in this
rule that are intended to address these concerns with respect to
provisions finalized in this rule. For example, EPA delayed the
compliance date, which will allow regulated entities additional time to
prepare to comply with the rule. Further, EPA is finalizing the
requirement for servicing and/or repair with reclaimed HFCs for
refrigerant-containing equipment in only three RACHP subsectors; EPA is
not finalizing requirements for the initial fill of refrigerant-
containing equipment with reclaimed HFCs or the proposed requirement
for the servicing and/or repair of refrigerant-containing equipment in
the stand-alone refrigeration subsector at this time. Existing
equipment in the majority of cases currently uses HFCs or HFC blends
that are common and are currently being reclaimed.
The Agency did not propose and is not finalizing a crediting
system. Moreover, the 2023 Technology Transitions Rule sets GWP limits
for certain new equipment and not for existing equipment where this
rule will establish requirements for reclaimed HFCs. EPA did not reopen
the 2023 Technology Transitions Rule in this rulemaking and is not
making any changes to its requirements in this rule. EPA further notes
that these requirements are not optional, and the Agency is not
establishing a credit system that could be related to exceeding the
requirements in those regulations. The Agency is requiring the
servicing and/or repair of refrigerant-containing equipment with
reclaimed HFCs in certain RACHP subsectors in the ER&R regulations
established in this rulemaking. Moreover, EPA anticipates that there
will be reclaimed refrigerant to meet demand for refrigerant servicing
in the affected subsectors consistent with the compliance date, which
may prevent the early retirement of existing equipment.
The Agency did not propose and is not finalizing refrigerant
reclaim requirements on a CO2e net basis. EPA acknowledges
the comment on the use of a tracking system and notes that the Agency
is not finalizing the proposed tracking system at this time.
Comment: One commenter stated that the supply of virgin
refrigerants is far more plentiful than anticipated in 2021. The
commenter stated that there seems to have been significant stockpiling,
some amount of illegal imports, and significant growth in the import of
products containing HFCs, with the value of imported air conditioning
systems from Mexico increasing by approximately 50 percent from 2020 to
2022. The commenter noted that the allowance for Mexican refrigerant
[[Page 82799]]
extends to R-410A containing condensing units, which may currently be
imported with no restriction other than a label for service consistent
with the 2023 Technology Transitions Rule. The commenter stated that
EPA could increase demand for reclaimed refrigerant by addressing this
issue under the Technology Transitions Program. The commenter claimed
that without these changes, it is unlikely that a transition away from
R-410A will occur fully in the United States until 2034 when both
countries are impacted by their phasedown schedules. The commenter also
claimed that there will not be any significant demand for reclaimed
refrigerant because of this legal allowance of imported products
containing HFCs.
Response: EPA acknowledges these comments and concerns related to
demand for reclaimed refrigerant due to the factors mentioned. EPA
notes that this comment is out of scope for this rulemaking.
F. How is EPA establishing an HFC emissions reduction program for the
fire suppression sector?
HFCs and substitutes for HFCs are used in many different sectors,
subsectors, and applications beyond those in the RACHP sector, and EPA
interprets its authority under subsection (h) to include promulgating
regulations that control the types of practices, processes, or
activities identified in subsection (h)(1) in those sectors,
subsectors, and applications, with the limitation that the Agency does
not interpret its regulatory authority under subsection (h) to extend
to HFCs or substitutes for HFCs when they are contained in foams.
HFCs are also used in the fire suppression sector. EPA is
establishing certain requirements to address HFC management for fire
suppression under subsection (h), further described in section IV.F.2
of this preamble. EPA proposed and is finalizing requirements for the
initial installation \120\ and servicing and/or repair of fire
suppression equipment to be done with recycled HFCs as well as
requirements for minimizing HFC releases during the servicing, repair,
disposal, or installation of fire suppression equipment; technician
training; recycling of HFCs prior to the disposal of fire suppression
equipment containing HFCs; and recordkeeping and reporting. EPA is
finalizing a compliance date of January 1, 2026, for the following fire
suppression requirements: (1) Minimizing HFC releases during the
servicing, repair, disposal, or installation of fire suppression
equipment; (2) the servicing and/or repair of fire suppression
equipment to be done with recycled HFCs; (3) technician training; (4)
recycling of HFCs prior to the disposal of fire suppression equipment
containing HFCs; and (5) recordkeeping and reporting. EPA is finalizing
a compliance date of January 1, 2030, for the requirement for the
initial installation of fire suppression equipment to be done with
recycled HFCs.
---------------------------------------------------------------------------
\120\ EPA understands these terms ``initial installation,''
``initial charge,'' or ``initial fill'' to be synonymous when
discussing fire suppression equipment to done with recycled HFCs.
---------------------------------------------------------------------------
EPA notes that the finalized definition of ``fire suppression
equipment'' for purposes of subsection (h) excludes military equipment
used in deployable and expeditionary applications, as well as space
vehicles. Those applications are exempt from the requirements to use
recycled HFCs in the installation, servicing, and/or repair of such
fire suppression equipment. This exclusion is based on EPA's
understanding that there are situations in which the unique design and
use of such military equipment and space vehicles make it impossible to
recover fire suppression agents during the service, repair, disposal,
or installation of the equipment. They are also exempt from the
requirement to use recycled HFCs for the initial installation of
equipment and for the servicing and/or repair of equipment.
Application-specific HFC allowances are available to mission-
critical military end uses as well as on board aerospace fire
suppression \121\ applications under regulations at 40 CFR 84.13. EPA
is not extending the requirement to use recycled HFCs in the
installation, servicing, and/or repair of such fire suppression
equipment provided that they meet the requirements for application-
specific allowances in 40 CFR 84.13. As long as they meet the
requirements for application-specific allowances, these applications
are also exempt from the requirement to use recycled HFCs for the
initial installation of equipment and for the servicing and/or repair
of equipment.
---------------------------------------------------------------------------
\121\ On board aerospace fire suppression is defined at 40 CFR
84.3.
---------------------------------------------------------------------------
1. Nomenclature Used in This Section
This section uses the term ``recycled'' or ``recycling'' to
describe the testing and/or reprocessing of HFCs used in the fire
suppression sector to certain purity standards.\122\ HFCs that are
recycled for fire suppression use include HFC-227ea, HFC-125, HFC-
236fa, and HFC-23. The term ``recycled'' or ``recycling'' as used in
the fire suppression sector is similar, but not identical, to the term
``reclaim'' as defined under the AIM Act. Under the AIM Act, the terms
``reclaim; reclamation'' are defined in subsection (b)(9) of the Act,
and that definition refers to the purity standards under AHRI Standard
700-2016 (or an appropriate successor standard adopted by the
Administrator) and the verification of purity using, at a minimum, the
analytical methodology described in that standard.
---------------------------------------------------------------------------
\122\ These industry standards may include NFPA 2001 (Standard
on Clean Agent Fire Extinguishing Systems), NFPA 10 (Standard for
Portable Fire Extinguishers), ASTM D6064-11 (Standard Specification
for HFC-227ea), ASTM D6231/D6231M-21 (Standard Specification for
HFC-125), ASTM D6541-21 (Standard Specification for HFC-236fa), and
ASTM D6126/D6126M-21 (Standard Specification for HFC-23).
---------------------------------------------------------------------------
The fire suppression industry describes clean agent as ``a gaseous
fire suppressant that is electrically nonconducting and that does not
leave a residue upon evaporation,'' and the term ``clean agents''
includes HFCs, according to the National Fire Protection Association
(NFPA).\123\ For the purposes of this section, EPA is generally
referring to the term ``clean agents'' as HFCs. While the term ``fire
suppressants'' may have a broader meaning, including non-gaseous agents
for example, EPA generally views the terms ``fire suppressants'' and
``fire suppression agents'' as interchangeable for the purposes of this
section.
---------------------------------------------------------------------------
\123\ National Fire Protection Association, NFPA Today, May 6,
2022, https://www.nfpa.org/News-and-Research/Publications-and-media/Blogs-Landing-Page/NFPA-Today/Blog-Posts/2022/05/06/Clean-Agent-System-Basics.
---------------------------------------------------------------------------
2. Emissions Reduction in the Fire Suppression Sector
As part of implementing subsection (h)(1), EPA is finalizing a
number of requirements to minimize releases of HFCs during the
servicing, repair, disposal, or installation of fire suppression
equipment containing HFCs or during the use of such equipment for fire
suppression technician training. These requirements are similar to the
halon emissions reduction requirements found at 40 CFR part 82, subpart
H. The fact that recycled halons have been the only supply of halons in
the United States 30 years after its production and consumption
phaseout in 1994 demonstrates the important role recovery and recycling
of clean agents from fire suppression equipment can
[[Page 82800]]
play by providing an ongoing supply where substitutes may not be
suitable. As discussed in the proposal, EPA understands that this model
has carried over on a voluntary basis to the management of HFCs by many
in the fire suppression sector.
a. Minimizing Releases of HFCs
To minimize releases of HFCs, EPA is requiring that covered
entities installing, servicing, repairing, or disposing of fire
suppression equipment containing a regulated substance may not release
into the environment, such as by intentional venting, any HFCs used in
such equipment. EPA is also requiring that owners and operators of fire
suppression equipment containing HFCs not allow the release of HFCs as
a result of failure to maintain such equipment.
Recognizing the extensive requirements for testing (e.g., Federal
Aviation Administration, United States Coast Guard, Department of
Defense) associated with the approval for use of fire suppressants in
certain applications, certain limited HFC releases for health, safety,
environmental, and other considerations are exempted, including:
Releases during the testing of fire suppression equipment
only if the following four criteria are met: (1) Equipment employing
suitable alternative fire suppressants is not available, (2) release of
fire suppressants is essential to demonstrate equipment functionality,
(3) failure of the equipment would pose great risk to human safety or
the environment, and (4) a simulant agent cannot be used in place of
the regulated substance for testing purposes.
Releases associated with qualification and development
testing during the design and development of equipment containing
regulated substances only when (1) such tests are essential to
demonstrate equipment functionality, and (2) a suitable simulant agent
cannot be used in place of the regulated substance for testing
purposes.
In addition, these requirements to minimize HFC releases do not
apply to emergency releases of HFCs for actual fire extinguishing,
explosion inertion, or other emergency applications for which the
equipment was designed.
Below, EPA is responding to comments related to its approach and
requirements to minimize releases of HFCs from the fire suppression
sector.
Comment: Several commenters expressed support for the requirements
to reduce HFC emissions from the fire suppression sector. One of the
commenters stated that the proposed requirements are akin to the 1998
halon emissions reduction requirements. The commenter stated that the
fire suppression sector has developed several voluntary measures to
decrease emissions, such as the voluntary code of practice (VCOP) and
the voluntary recycling code of practice, and that these voluntary
programs and the industry's experience in recycling halons provide the
infrastructure necessary for the success of the HFC recycling
requirements in EPA's proposal. The commenter also maintained that the
required use of recycled HFCs is important in mitigating emissions and
encouraging the use of other alternatives due to the high-GWP HFCs
typically used in the fire suppression sector. Another commenter stated
that the fire suppression industry fully supports EPA's goals of
minimizing emissions of HFCs and encouraging the recycling and reuse of
HFCs. The commenter stated that as a companion to the VCOP, an HFC
emissions estimating program (HEEP) was developed that collects data on
sales of HFCs for recharge of fire protection equipment as a surrogate
for emissions. The commenter stated that compiled data of estimated
emissions of HFCs from fire protection equipment have been submitted to
EPA and published each year since 2002. Another commenter generally
supported exploring potential practices that can help expand HFC
recycling and reduce GHG emissions, while expressing concern with
whether there is a sufficient supply of recycled HFCs for use in fire
suppression systems.
A couple of commenters stated that the proposed requirements of 40
CFR 84.110(a), (b), (d), (e), and (f) are similar to the halon emission
reduction requirements found at 40 CFR part 82, subpart H. One of the
commenters stated that the halon emission reduction requirements have
proven to be effective and useful in the responsible management of fire
suppressants and that these practices are commonplace in the fire
protection industry and are incorporated into industry codes and
standards. Another commenter commended EPA for basing the requirements
for HFC management in fire suppression equipment on the halon emission
reduction rule, as these practices are commonplace within the fire
protection industry and incorporated into industry codes and standards.
The commenter expressed support for the prohibition in 40 CFR 84.110(a)
against knowingly venting HFCs in the installation, servicing, repair,
or disposal of fire suppression equipment. The commenter stated that
the proposed exemptions for testing fire suppression equipment and
qualification testing during system design and development are
appropriate. The commenter also expressed support for the prohibition
in section 84.110(b) against allowing release of HFCs as a result of
failure to properly maintain equipment.
Response: EPA acknowledges the commenters' general support of the
fire suppression requirements, and that the Agency considered the fire
suppression industry's past experience with recycled halons as well as
their voluntary efforts with recycled HFCs to develop fire suppression
requirements that complement current industry practices to minimize
emissions of HFCs.
Comment: A commenter recommended a stricter set of terms and
greater consistency in alignment between industry groups represented in
subsection (h), including the fire suppression industry and the RACHP
industry. The commenter expressed support for the proposal to align
requirements for recyclers of fire suppression or refrigerant-based
systems to meet the same rigid standards as EPA's CAA section 608
certified reclaimer program. The commenter maintained that voluntary
practices do not require the level of recycling, such as the need for
reclaim, so recycled HFCs sourced from fire suppression applications
``could act to undermine the integrity and quality of the refrigerant
supply chain.'' The commenter stated that the marketplace should be
able to expect the same quality, rigor, and tracking as proposed for
refrigerants in the rulemaking.
Response: The Agency considers the fire suppression sector and the
RACHP sector as distinct sectors with unique specifications and
experiences; thus, the requirements established for each sector are
tailored to that sector. EPA understands that entities in the U.S. fire
suppression industry typically operate in accordance with requirements
from NFPA 2001 \124\ or NFPA 10 \125\ or appropriate American Society
for Testing and Materials (ASTM) standards to recover and recycle HFCs
during servicing and/or repair of fire suppression equipment. None of
these current industry standards or specifications related to HFCs used
in
[[Page 82801]]
fire suppression contain specific requirements to minimize releases of
HFCs, including during servicing or repair of the equipment. Therefore,
and as noted by the commenter, efforts by the industry to minimize
emissions of HFCs used in the fire suppression sector have to date been
on a voluntary basis. For example, the VCOP includes as part of its
emission reduction strategies during storage, handling, and transfer of
HFCs to recover and recycle agents during servicing and to adopt
maintenance practices that reduce leakage as much as is technically
feasible. By adopting regulatory requirements informed by these current
voluntary practices and relevant industry standards, this action will
minimize emissions of HFCs more broadly within this sector of where
HFCs are used, consistent with the purposes identified in subsection
(h), and in a manner that maintains the integrity of recycled HFCs from
this source.
---------------------------------------------------------------------------
\124\ NFPA 2001 Standard on Clean Agent Fire Extinguishing
Systems. Available at: https://www.nfpa.org/codes-and-standards/nfpa-2001-standard-development/2001.
\125\ NFPA 10 Standard for Portable Fire Extinguishers.
Available at: https://www.nfpa.org/codes-and-standards/nfpa-10-standard-development/10.
---------------------------------------------------------------------------
b. Requirements for Initial Installation of Equipment for Fire
Suppression
EPA is requiring for the fire suppression sector where HFCs are
used, that the initial installation of fire suppression equipment,
including both total flooding systems and streaming applications, must
be with recycled HFCs, starting on January 1, 2030. Specifically, for
factory-charged equipment that uses HFCs, EPA is requiring that in
order to install such equipment, the equipment is required to use
recycled HFCs for the initial installation during the manufacture of
the equipment. These requirements apply whether the HFCs are used neat
or in a blend.
However, EPA notes that most often, where fire suppression agents
are needed and HFCs are being used, these are single component HFCs
with some of the highest GWPs for the regulated HFCs. Given the high
GWPs for the commonly used HFC fire suppression agents, this aspect of
the action is anticipated to further minimize emissions by requiring
that recycled HFCs be used for the initial installation of fire
suppression equipment.
Currently, recycled HFCs are primarily used for the servicing and
recharge of existing fire suppression equipment. EPA understands that,
in practice, recycled HFCs are required to meet applicable purity
standards and function the same as their virgin counterparts when used
in equipment in the fire suppression sector.
Comment: One commenter expressed support for EPA's proposal to
increase the use of reclaimed and recycled HFCs in new and existing
HFC-containing fire suppression equipment. Some commenters expressed
concern with the requirement to use recycled HFCs for the initial
installation of fire suppression equipment. One of these commenters
stated that the requirement to use recycled HFCs for the first fill of
fire suppression equipment should not be included in the final rule.
The commenter also stated that there is uncertainty in whether the
supply of recycled HFCs will be adequate to serve new and existing
equipment. The commenter questioned the appropriateness and necessity
of the requirement to use recycled HFCs for the initial fill of fire
suppression equipment. Additionally, the commenter stated that during
meetings with EPA staff and in the public stakeholder meeting, no
indication was given that initial fill of equipment would be regulated
in this rule, as the commenter understood that the technology
transition section of the AIM Act was the appropriate place for such
proposed regulations.
Another commenter stated that the proposed requirement to use only
recycled HFCs for the initial fill is not supported based on the
historical success of halon recycling. The commenter stated that the
current market for clean agent fire systems and the need for virgin
HFCs are very different from the historical halon market. The commenter
stated that they are a contributor to this success and suggested that
EPA should not equate the current HFC market with that of halon given
important differences between halons and HFCs and their use patterns.
Specifically, the commenter stated that recycled halon has been made
available for redeployment by a steady system of replacement with HFCs
on a comparable performance basis, while current non-HFC replacement
fire technologies provide many challenges to comparable replacement,
extending the lifetime for HFC fire systems to remain in place, and
reducing the availability of material to be recycled. The commenter
also maintained that installed halon systems are significantly older
than HFC systems, and that the accelerated changes in facilities and
technologies being protected make many of these halon installations
obsolete, providing sufficient stocks for recycling. The commenter
provided an example that shipbreaking of aged vessels is a significant
halon source for which there is no HFC equivalent. Additionally, the
commenter stated that halon recovery and recycling is active and viable
on a global basis and the United States receives significant quantities
of halon from non-domestic sources, while non-domestic HFCs for
recycling will require AIM Act allowances limiting their viability to
relocate to the U.S. market, requiring a domestic bank of installed HFC
to support requirements for both service and new systems. However, the
commenter stated that most installed HFC fire systems are protecting
viable ongoing facilities with no anticipated need to convert or
retrofit to alternate technologies, reducing the available resource
bank.
Response: In response to the comment's assertions that there was no
notice in public meetings of an intent to cover initial fill or
installation, EPA notes that the proposed rule provided notification of
the Agency's intention to include both initial installation and
servicing requirements (88 FR 72216, October 19, 2023). EPA disagrees
with the commenter's assertion that it should not draw parallels
between the experience with recycled halons and with recycled HFCs.
There are numerous similarities between the use of halons and the use
of HFCs for fire suppression. This includes the supply chain, the types
of applications and equipment, and general industry practices. Recycled
halon is still available today, 30 years after the United States phased
out production and consumption of halons. It is this experience, since
the phaseout of the halons in 1994, that demonstrates the important
role recovery and recycling of fire suppression agents can play by
providing an ongoing supply of HFCs in fire suppression applications
especially where other substitutes may not be suitable. EPA understands
that this model has carried over on a voluntary basis to the management
of HFCs by many in the fire suppression sector.
In response to the comments questioning the appropriateness and
necessity of the requirement for initial installation of fire
suppression equipment with recycled HFCs, EPA views the requirement to
use of recycled HFCs for the initial installation of fire suppression
equipment as part of its efforts to minimize emissions of HFCs from
equipment, consistent with one of the purposes identified in the Act
for regulations under subsection (h). EPA notes that most often, where
fire suppression agents are needed and HFCs are being used, these are
single component HFCs with some of the highest GWPs for the regulated
HFCs. Given the high GWPs for the commonly used HFC fire suppression
agents, this provision will further minimize emissions by requiring
that only
[[Page 82802]]
recycled HFCs be used in fire suppression equipment as well as ensuring
that HFCs have been recovered and recycled from the equipment prior to
the final step of the disposal of the equipment so that HFCs are not
released during the disposal of the equipment. EPA understands that, in
practice, recycled HFCs are required to meet applicable purity
standards and function the same as their virgin counterparts when used
in equipment in the fire suppression sector. Currently, recycled HFCs
are primarily used for the servicing and recharge of existing fire
suppression equipment. Comments by Halon Alternatives Research
Corporation (HARC) on the October 2022 NODA indicate that it does not
anticipate major barriers to using recycled HFCs in new fire
suppression equipment. EPA understands while there may not be barriers
to using recycled HFCs in new fire suppression equipment, commenters
have stated that there may be uncertainty in the supply of recycled
HFCs. EPA acknowledges the need for allowances to import recycled HFCs
for fire suppression, however the Agency anticipate that as the HFC
Phasedown progresses, HFCs no longer needed in larger uses such as
refrigeration and air conditioning may become available for fire
suppression applications. Informed by comments, EPA acknowledges that
commenters expressed concerns regarding the supply of recycled HFCs and
is extending the compliance dates for the use of recycled HFCs to
ensure that the infrastructure and supply will be available for
affected stakeholders to be able to comply with requirements, further
described later in this section IV.F.2.b of this preamble.
With regards to the sourcing of used HFCs, the comments concerning
the need for allowances are outside the scope of this rulemaking. In
this section IV.F.2.b of the final rule, the comments regarding the
RACA process, are also beyond the scope of this action and thus require
no further response, as EPA has proposed no changes to the requirements
of the RACA process.
Comment: One commenter stated that their support for the AIM Act
was based on there being a phasedown of HFC production, not a complete
phaseout. The commenter stated that EPA's proposal is equivalent to an
HFC phaseout for fire protection in the United States, stating that
they did not believe that it was appropriate or necessary for EPA to
regulate initial fill of fire suppression equipment in this rule. The
commenter also stated that it would put HFCs domestically in a more
restrictive position than halons and CFCs, as these chemicals can be
imported without the expenditure of allowances. In addition, the
commenter stated that due to the high-GWP nature of HFCs used for fire
protection, the observed effect of the AIM Act has been to reduce the
production and consumption of virgin HFCs in the sector, below the
phasedown schedule, and that companies have obtained the required
listings and approvals so that a transition to the use of recycled HFCs
in new fire suppression systems is underway. The commenter expressed a
view that they would expect this transition to occur naturally and
expand as the phasedown proceeds and claimed that it was not
environmentally justified to force this transition on the industry by
regulation in what in their view is a short time frame.
Another commenter asserted that the proposed requirements for use
of recycled HFCs for initial fill and recharge, would, in effect, ban
the production of fire suppression HFCs as of January 1, 2025, and it
would mean there would be no commercial market for virgin fire
suppression HFCs, since any use of the agents (other than in extremely
limited essential uses) would be illegal. The commenter contended that
the AIM Act implements the phasedown under the Kigali Amendment to the
Montreal Protocol and does not authorize EPA to issue a rule that
results in a total ban on the production and consumption of HFCs,
including fire suppression HFCs, and therefore that the proposed rule
is not authorized by the AIM Act.
This commenter also stated that the proposed rule also violates the
accelerated schedule provision of the AIM Act (42 U.S.C. 7675(f)). This
commenter maintained that the proposed fire suppression requirements
would result in a total ban on the production and consumption of virgin
fire suppression HFCs as of January 1, 2025, which would be more
stringent than the phasedown schedule under subsection (e)(2)(C) of the
AIM Act. Thus, they asserted that establishing an effective total ban
on the production and consumption of virgin fire suppression HFCs as of
that date would require rulemaking following receipt of a petition as
specified in subsection (f) of the AIM Act. The commenter also stated
that the proposed requirement to use only recycled HFCs for initial
fill is not supported based on the historical success of halon
recycling, due to important differences between halons and HFCs and
their use patterns. For example, the commenter stated that an important
difference between HFCs and halons is their relative firefighting
effectiveness. The commenter stated that halons, bearing no blanket
import restrictions, were successfully funneled into reuse under a
production phaseout due to halon's uniquely effective fire
extinguishing properties. The commenter further stated that market
forces in critical applications like aerospace consistently supported a
recycle market, maintaining sufficient value to drive recycling
activity. The commenter maintained that HFCs do not have the same level
of market pull to support recycling activity in a market that
immediately accelerates the sunset of virgin material for initial fill
versus the anticipated phasedown schedule supported by the AIM Act
framework rule.
Response: EPA disagrees with the commenters' assertion that
finalizing these requirements under subsection (h) regarding recycled
fire suppression agents is a phaseout of HFCs or an acceleration of the
phasedown under subsection (f) of the AIM Act. EPA further disagrees
with the commenters' conclusion that these requirements are not
authorized under the AIM Act.
While the AIM Act includes provisions related to the phasedown of
production and consumption of HFCs, including the provisions in
subsections (e) and (f) of the Act, it also includes separate and
additional regulatory authorities, such as those in subsection (h) of
the Act. As explained in detail throughout, this rule is promulgated
under subsection (h) of the AIM Act, not subsections (e) or (f).
Subsection (h) uses different language from subsections (e) and (f),
and it is framed differently. EPA interprets Congress' direction under
these subsections as different and as providing distinct authorities
that are tailored to the respective areas of focus of these
subsections, so that EPA can establish regulatory regimes that
effectively achieve each subsection's purposes. For example, subsection
(e)(1)(A) directs EPA to establish production and consumption baselines
``for all regulated substances in the United States,'' and subsection
(e)(2)(B) describes the methodology for determining the quantity of
regulated substances that may be ``produced or consumed in the United
States'' in a particular calendar year by multiplying the percentage
listed for that year in subsection (e)(2)(C) by the production or
consumption baseline. EPA's implementing regulations for these
provisions establish limits on the ``[t]otal production and consumption
of regulated substances in the United States in each year'' (40 CFR
84.7) that apply to HFC production and consumption in the United States
on an
[[Page 82803]]
economy-wide basis. Subsection (f) addresses the EPA Administrator's
authority to ``promulgate regulations that establish a schedule for
phasing down the production or consumption of regulated substances that
is more stringent than the production and consumption levels of
regulated substances required under subsection (e)(2)(C)'' and the
requirements for such regulations. The comment does not provide any
data or analysis that indicates that the requirements to use recycled
fire suppression agents in this rule would alter the phase down
schedule established under subsection (e)(2)(C). EPA codified numeric
levels of permissible production and consumption in 40 CFR 84.7(b)(3),
Table 2. EPA did not propose and is not taking any action in this
rulemaking that would change the economy-wide phasedown schedule
established in subsection (e)(2)(C) or the numeric levels of
permissible production and consumption codified in 40 CFR 84.7(b).\126\
The production and consumption phasedown is implemented on an exchange
value-weighted basis (rather than establishing caps for particular
HFCs), and this rule does not alter the amount of HFC production and
consumption allowed in any year on an exchange value-weighted basis,
nor does it alter the number of allowances that EPA will allocate in a
future year. Further, it does not prohibit any production or import of
any HFC. HFCs affected by the rule's requirements to use recycled fire
suppression agent are not exclusively used for fire suppression.
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\126\ As this rule does not prohibit any production or
consumption of HFCs, EPA need not and is not further addressing the
comment's assertion that the AIM Act does not authorize EPA to issue
a rule that results in a total ban on the production and consumption
of HFCs, including fire suppression HFCs.
---------------------------------------------------------------------------
In contrast to the focus on the phasedown of production and
consumption in subsections (e) and (f), subsection (h) is targeted at
management of regulated substances. As relevant here, subsection (h)(1)
directs EPA to ``promulgate regulations to control, where appropriate,
any practice, process, or activity regarding the servicing, repair,
disposal, or installation of equipment'' that involves a regulated
substance, for purposes that include minimizing releases of HFCs from
equipment. This final action is an appropriate use of EPA's authority
under subsection (h), as requiring the servicing, repair, and
installation of fire suppression equipment with recycled HFCs at a set
date in the future is exactly the type of activity that the AIM Act
envisions in subsection (h) since the requirements are controlling
practices, processes, and activities regarding the servicing, repair,
disposal, and installation of fire suppression equipment that involves
a regulated substance.
To the extent these commenters contend that these requirements
would in effect ban the production or consumption of fire suppression
HFCs, that is a mischaracterization of the requirements of the rule.
These requirements involve the practice or activity of using recycled
HFCs to service, repair, and install fire suppression equipment, with
different compliance dates for existing and new equipment, and thus
also control the practice or activity of using of virgin HFCs during
these activities in fire suppression equipment. However, even if the
requirements result in virgin HFCs no longer being used to service,
repair, and install fire suppression equipment, that is not a ban on
production or consumption of HFCs, as those are distinctly defined
terms under the AIM Act. Requiring this practice or activity is
appropriate under subsection (h). There is availability of recovered
and reprocessed HFCs that can be used for this purpose. While opposing
the time frame of the proposed rule, one commenter indicated that the
transition to recycled HFCs in fire suppression is underway and would
expand as the phasedown proceeds. Further, this provision will foster
additional recycling of these HFCs and thus fewer emissions of HFCs
from this equipment, consistent with the purposes identified in
subsection (h).
EPA acknowledges that while there are numerous similarities, there
may be certain market and efficacy differences between halons and HFCs,
such as halons not requiring expenditure of allowances as described
earlier in this section. Since 1994, with the phaseout of the
production and consumption of halons, recycled halons have been
available and are still available today, which demonstrates the
important role recovery and recycling of fire suppression agents can
play by providing an ongoing supply of HFCs in fire suppression
applications, especially where substitutes may not be suitable. As
discussed in the proposal, EPA understands that this model has already
been carried over on a voluntary basis to the management of HFCs by
many in the fire suppression sector. In 2002, the fire suppression
industry developed a VCOP for the reduction of emissions of fire
suppression agents including HFCs. The VCOP was developed by HARC, an
industry organization, in partnership with EPA, the Fire Suppression
Systems Association (FSSA), the Fire Equipment Manufacturers
Association (FEMA), and the National Association of Fire Equipment
Distributors (NAFED). Many of the practices have already been
voluntarily adopted by the fire suppression sector, such as equipment
manufacturers or distributors. In EPA's view, the fire suppression
requirements will benefit from and bolster these efforts. While EPA
notes that the commenter did not think HFC extinguishants would have
the same market demand that supports halon recycling, the Agency views
VCOP as an example of this industry already significantly supporting
HFC recycling and reuse of fire suppression agents and understands that
with the extended compliance dates, it would provide the market time to
adjust. EPA acknowledges that HFCs are not used in all of the same
applications as halons for various reasons and for the near term those
applications will continue to rely on the over 30-year practice of
recycling and reusing halons. EPA considers the longstanding and highly
successful use of recycled halons for both installation and servicing
of fire suppression equipment in the United States to be a premier
example of the effectiveness of relying on recycling.
The Agency responds to the comments regarding the compliance
timelines to meet these requirements by noting that EPA is finalizing
compliance dates for the initial installation with recycled HFCs
(beginning January 1, 2030) and for servicing and/or repair with
recycled HFCs (beginning January 1, 2026) of fire suppression
equipment, as described in more detail in sections IV.F.2.b and
IV.F.2.c of this preamble.
Comment: One commenter mentioned that the final rule should
preserve the ability to use substitutes for initial installation and
servicing/repair of fire suppression equipment. The commenter stated
that the proposed regulatory language could be read to suggest that
only recycled regulated substances, and not their substitutes, could be
used to fill and/or service fire suppression equipment. The commenter
stated that this result was likely unintended because it overlooks the
potential use of HFC substitutes in fire suppression equipment, which
in some cases may be more environmentally friendly than recycled HFCs.
The commenter requested that EPA amend 40 CFR 84.110(c) to clarify that
fire suppression equipment must be initially charged and serviced with
recycled HFCs or allowable HFC substitutes, as such substitutes become
available on the market.
[[Page 82804]]
Response: EPA did not propose and is not finalizing requirements
for the use of recycled HFC substitutes in fire suppression equipment
at this time. EPA notes that nothing in this final rule impedes the use
of fire suppression alternatives. EPA determined that it is prudent to
limit the requirements to HFCs, noting that the consumption and
production phasedown will create scarcity for certain HFCs and such
demand should partly be addressed by the increased use of recycled
HFCs. The Agency acknowledges the importance of HFC substitutes and
encourages the development and deployment of HFC substitutes to the
extent possible. EPA also recognizes that in the context of a
phasedown, certain uses of HFCs will continue indefinitely.
Comment: A commenter mentioned that because the Federal Aviation
Act and controlling case law interpreting the Act reserve to the FAA
primary jurisdiction over matters related to aircraft safety and
operations, requirements related to passenger aircraft air conditioning
and fire suppression equipment necessarily falls within the purview of
FAA's authority and therefore cannot be infringed upon by EPA. The
commenter also states that more important than any jurisdictional
considerations, any acknowledged threat to passenger safety is
unacceptable as a regulatory requirement, and notes that a lack of
meaningful coordination with the FAA could result in a failure to
ensure that air safety is the top consideration when determining
applicability of the proposed rule's requirements to the commercial
aviation sector. The commenter expressed support for EPA's proposed
exemption for onboard aerospace fire suppression systems from the
requirement to use recycled HFCs and recommended that the exemption be
expanded to hangar fire suppression systems. The commenter also
requested the broadest application possible for this proposed exemption
given the potentially lengthy process for FAA approval of such products
and their potential to impact the safe operation of aircraft.
The commenter stated that the proposed rule does not appear to
contain a similar exemption from the requirement to use recycled HFCs
for fire suppression systems in hangars. The commenter stated that
hangar fire suppression systems are highly specialized, and mandating
that new and existing hangar fire suppression systems use recycled HFCs
could be incredibly costly for their members and potentially disruptive
to safe and smooth commercial aviation operations. The commenter also
stated that such a requirement for hangars must also go through the FAA
consultation process to ensure that any final requirements that may
apply to the commercial aviation sector and its ground facilities do
not jeopardize safety or the smooth and efficient operation of the
commercial aviation industry when planes are in the air and on the
ground.
Response: EPA disagrees with the commenter's broad assertions that
EPA does not have authority to issue regulations pertaining to HFCs in
aircraft and aircraft operations. While EPA agrees that the FAA has
jurisdiction over matters related to aircraft safety and operations
consistent with its Congressionally mandated authorities, under CAA
title VI and the AIM Act, EPA has issued numerous regulations that
concern the use of ODS and HFCs in many applications including onboard
aviation and flight operations. With respect to this action, the AIM
Act does not exclude aircraft or aircraft operations from the scope of
implementing regulations. As noted previously in this notice, the
inclusion in the statute at subsection (e)(4)(b)(iv) of ``on board
aerospace fire suppression,'' which includes aircraft, indicates that
Congress did not intend to exempt aircraft and aircraft operations from
the AIM Act. In addition, the commenter does not address the provisions
of subsection (h) itself. None of the text of subsection (h) indicates
that Congress contemplated that these provisions would not apply to
equipment used in commercial aviation. Congress expressly addressed
inapplicability of regulations under (h) in subsection (h)(4), in which
it provided that regulations under subsection (h) shall not apply to
HFCs or their substitutes contained in foams. If Congress had intended
to exclude equipment used in commercial aviation from regulations
promulgated under subsection (h), it would be reasonable to expect that
the statute would include similar language creating that exclusion.
Although the commenter did not appear to base objections on the text of
subsection (h), to the extent they intended to argue that this
rulemaking exceeds EPA's authority under that provision, EPA notes that
it is establishing the subsection (h) requirements in this final rule
to control practices, processes, or activities regarding the servicing,
repair, disposal, or installation of equipment that involves a
regulated substance or a substitute for a regulated substance and to
serve the statutory purposes identified in subsection (h). Thus, this
final rule is within the scope of EPA's authority under subsection
(h)(1), including as it pertains to equipment used in commercial
aviation. Further, as discussed above, EPA is not extending the
requirements for recycled HFCs under this rule to on board aerospace
fire suppression applications, as listed at previously finalized EPA
regulations at 40 CFR 84.13, for a year or years for which that
application receives an application-specific allowance as defined at
Sec. 84.3.
With regard to the commenters' assertions that finalizing the
proposed rule would conflict with the Federal Aviation Act's statutory
purpose and scheme and that this statute reserves to the FAA
jurisdiction over matters related to aircraft safety and operations and
broadly preempts the field of regulation with respect to commercial
aviation, aircraft operations, and aircraft safety, EPA responds that
the information presented in the comment letter does not indicate that
EPA is generally precluded from including requirements related to the
commercial aviation sector in this rulemaking. The comment cites and
quotes cases that speak to the pervasive nature of Federal regulation
in this area and address the preemption of State and local regulations.
However, preemption of State and local laws is not relevant to EPA's
authority to establish regulations.
In response to the commenter's assertions that EPA did not consult
with the FAA on these regulations, particularly for any fire
suppression requirements that may apply to the commercial aviation
sector, the Agency notes that it reached out to FAA on certain topics
in developing the draft final rule prior to interagency review.\127\
Further, FAA and other Federal agencies had an opportunity to review a
draft of the final rule during interagency review.
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\127\ See memo titled EPA Questions to FAA, which is available
in the docket for this rulemaking, EPA-HQ-OAR-2022-0606.
---------------------------------------------------------------------------
EPA also disagrees with the commenter that hangars or ground
facilities are not subject to this rule and should be exempted. EPA is
not requiring the initial installation or servicing and/or repair of
fire suppression equipment with recycled HFCs in certain applications
that receive application-specific allowances, including mission-
critical military end uses and on board aerospace fire suppression. On
board aerospace fire suppression is one of the six applications listed
in the AIM Act that allows companies that use HFCs to receive
application-specific allowances.
[[Page 82805]]
Specifically, as defined in EPA's implementing regulations at 40 CFR
84.3, on board aerospace fire suppression means use of a regulated
substance in fire suppression equipment used aboard commercial and
general aviation aircraft, including commercial-derivative aircraft for
military use; rotorcraft; and space vehicles. Onboard commercial
aviation fire suppression systems are installed throughout mainline and
regional passenger and freighter aircraft, including engine nacelles,
auxiliary power units, lavatory trash receptacles, baggage/crew
compartments, and handheld extinguishers. As such, hangars or ground
facilities do not fall under this purview.
Comment: The Agency also received comments regarding the supply of
recycled HFCs. One commenter stated that while they mentioned that
there are no barriers to using recycled HFCs for initial fill, they
provide no information that could be used to conclude that the supply
of recycled HFCs is adequate to serve new and existing equipment. The
commenter also stated that their concern is not currently when the
supply of recycled HFCs may be high, but five to ten years in the
future, when there may still be a significant installed base of HFC-
containing equipment. Another commenter maintained that recycled HFCs
have been used for years to recharge most fire systems in the event of
discharge, and that historically the availability of recycled HFCs has
balanced well with the nominal requirements for system service. The
commenter stated that there are not sufficient recycled HFCs available
to the market to confidently supply all domestic fire suppression needs
for both service and new systems now and into the future. The commenter
also stated that the lack of sufficient available fire suppressants to
meet crucial fire suppression needs will put critical facilities, and
the people who work in those facilities, at risk of harm from fire
events and reduce market confidence in the use of fire suppression
technologies for special hazard applications. The commenter also stated
that the remaining need for HFCs in new systems in the United States is
due to a lack of viable alternatives for meeting very challenging
technical requirements for special hazard fire systems. The commenter
maintained that implementing the rule as proposed will make providing
effective fire suppression more difficult for these applications
without providing a meaningful impact on emissions associated with the
use of HFCs in fire suppression.
Another commenter stated that while there is a robust recycling
market in the fire suppression industry, there is concern that the
availability of recycled HFCs would not always balance market demand
under the proposed rule requirements. Instead, the commenter suggested
that the availability of recycled HFCs would adjust to balance the
required market needs given time under the current AIM Act rule
structure. The commenter stated that the required use of recycled fire
suppression agent would be unnecessary and counterproductive to the
existing market-driven activities in the fire suppression industry.
One of the commenters expressed concern over whether the proposed
requirements would ensure that there is a sufficient supply of recycled
HFCs available for use in fire suppression systems, especially for
hangars. The commenter stated that if EPA intends for hangars to be
covered by the proposed fire suppression system requirements, it is
imperative that the requirements ensure that a sufficient supply of
recycled HFCs would be available so that industry sectors would have a
sufficient supply of necessary materials to ensure safe operations
while also complying with any applicable regulatory requirements.
Response: EPA acknowledges comments related to the supply of
recycled HFCs to support the requirements for recycled HFCs in fire
suppression equipment established in this rulemaking. EPA understands
that the fire suppression industry has been generally using recycled
HFCs for servicing (as shown in the HEEP data).
EPA acknowledges that the phasedown of production and consumption
of HFCs under the AIM Act and Kigali Amendment to the Montreal Protocol
will have broader impacts on HFC use and transition to HFC substitutes.
In the context of the HFC phasedown, not establishing requirements to
limit the release of HFCs will create supply issues as the phasedown
progresses. As addressed elsewhere in this preamble, this final rule is
being promulgated under subsection (h). EPA acknowledges the comments
regarding the current market structure of the fire suppression industry
with respect to the use of recycled HFCs. EPA notes that the provisions
established in this rulemaking are intended to support increased
recycling and further bolster the supply of recycled HFCs. As the
phasedown progresses, other sectors that use certain HFCs may reduce
their use of certain HFCs or no longer use certain HFCs, which may be
become available for use in the fire suppression sector. After further
consideration, EPA agrees that additional time is warranted, this will
enable the fire suppression sector to build up additional stock of
recycled HFCs to meet demand for the installation, servicing, and/or
repair of fire suppression equipment and to adjust any relevant
existing contracts. The date for the requirement for the initial
installation of fire suppression equipment with recycled HFCs is after
the next major phasedown step of production and consumption of virgin
HFCs under the AIM Act, when recycled HFCs will play an even greater
role in supporting the servicing and repair of existing equipment. The
commenters pointed to the need for additional time for the market to
further adjust supply and demand for recycled fire suppression agents.
Thus, EPA is finalizing later compliance dates than proposed for the
initial installation and the servicing and/or repair of fire
suppression equipment with recycled HFCs, as described in more detail
in sections IV.F.2.b and IV.F.2.c of this preamble. The Agency is also
finalizing differentiated dates for servicing and initial installation,
with the date for servicing earlier than initial installation based on
commenters' information on current practices.
Comment: One commenter stated the proposed requirement to only use
recycled HFCs for initial fill will disrupt the current market-driven
balance of recycled agent supply and demand, impacting the AIM Act's
important environmental goals. The commenter stated that the 2020 HEEP
data show recycled HFCs currently support the preponderance of system
service requirements (80 percent in 2020), providing a viable and
responsible life cycle process and market-driven balance. The commenter
claimed, however, that the proposal requiring the use of recycled HFCs
for initial installation would have the effect of reinforcing the
market perception that HFCs are being regulated out of existence. The
commenter stated that the EU's 2000 regulation devalued halon 1301 and
that the regulation correlated with the EU halon emissions. The
commenter voiced concerns that the requirement to use only recycled
HFCs for initial fill, by overriding current market forces, would have
a similar effect of instigating a spike in emissions due to collapse of
market confidence in HFCs. In such a market, the commenter maintained,
where used HFC stocks are of low or negative value, owners and
[[Page 82806]]
service entities could be negatively incentivized to release stocks of
HFCs to the atmosphere in anticipation of further regulations or to
avoid storing a valueless commodity. The commenter also stated that
with the termination of production of a potential fire suppression
agent (i.e., FK-5-1-12) from a manufacturer, there may likely be
insufficient supply of a low-GWP alternative for HFCs, causing
uncertainty about the long-term viability of fire suppression
technologies. The commenter further stated that, as with the EU in
2000, they expected a rise in HFC emissions from the fire suppression
sector if the requirement to use recycled HFCs for initial fill is
promulgated. The commenter stated that the proposed rule, along with
potential supply issues, would severely restrict market access to
effective fire suppressants, further eroding customer confidence in
clean agent protection and putting additional critical facilities and
people at risk from a fire event.
Response: EPA disagrees with the commenter's assessment of the
requirement for recycled HFCs in the fire suppression sector as
disruptive or that it would be misinterpreted as regulating HFCs out of
existence. The AIM Act directs EPA to implement an 85 percent phasedown
of the production and consumption of HFCs from baseline by 2036. This
is a phasedown and not a phaseout. The Agency foresees continued
production and consumption of HFCs beyond 2036, albeit limited so as to
not exceed the very restrictive cap. While this final rule has the
effect of restricting the use of virgin HFCs for particular practices,
processes, and activities related to servicing, repair, and
installation of particular equipment, those requirements do not apply
to all applications in which HFCs are used, and they do not limit the
use of recycled or reclaimed HFCs that meet the regulatory criteria. In
fact, as discussed throughout this final rule, the Agency expects that
virgin production and consumption consistent with 40 CFR part 84,
subpart A will continue and anticipates continued use of both virgin
and reclaimed or recycled HFCs. Consistent with subsection (h), in
developing this rule, the Agency explored options that would serve the
purposes identified in subsection (h)(1), including minimizing
emissions of HFCs from equipment and maximizing reclamation where
appropriate. The Agency considers fire suppression, with its long and
successful history of using recycled HFCs, an appropriate application
for this requirement. As the phasedown continues, the availability of
virgin HFCs decreases while the market demand for recycled HFCs
increases in the fire suppression sector; however, EPA anticipates
there will be continued demand for and use of virgin HFCs for other
applications for many years. Unlike halons, most of the HFCs used in
fire suppression have other uses (e.g., HFC-227ea is used as a
propellant for metered dose inhalers). Halons generally have only been
used for fire suppression. Contrary to the comment, recent updates to
the EU regulation 2024/590 puts a high value on existing supply of
halons by prohibiting the destruction of halons unless the purity of
the recovered or recycled substance does not allow for reclamation and
reuse.\128\ As market demand increases for recycled HFCs in the fire
suppression sector, the value of the recycled HFCs should also increase
and lead to more incentive to recover and recycle HFCs rather than
releasing them. One commenter noted that the termination of a potential
fire suppression agent (i.e., FK-5-1-12) production from a manufacturer
would mean an insufficient supply of a low-GWP alternative for HFCs,
causing uncertainty about the long-term viability of fire suppression
technologies. EPA recognizes the loss of an alternative agent may limit
one option, but with the limited use of FK-5-1-12 to date, the
termination of this agent should not cause much disruption to the
market as the search for suitable alternatives would continue in those
applications. It is unclear that the end of production of one agent
with current limited use would cause uncertainty with fire suppression
technologies in general. One commenter stated that recycled HFCs
support many service requirements, providing a viable and responsible
life cycle process and market-driven balance. EPA views the
requirements for recycled HFCs in fire suppression equipment as a
bolster to this effort.
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\128\ Regulation (EU) 2024/590 of the European Parliament and of
the Council of 7 February 2024 on substances that deplete the ozone
layer, and repealing Regulation (EC) No 1005/2009. Available at
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:L_202400590.
---------------------------------------------------------------------------
Comment: EPA received comments requesting the export of fire
suppression systems containing virgin HFCs. One commenter interpreted
the phrase ``that is installed in the United States'' in 40 CFR
84.110(c), to say that the requirement to use recycled HFCs for initial
fill of fire suppression equipment does not pertain to equipment
intended for export. The commenter stated that fire suppression
equipment intended for export could continue to be installed with
virgin HFCs and that the expended allowances would continue to be
refunded under the RACA process. The commenter asked for confirmation
on the interpretation in the final rule.
Another commenter asserted that with the implementation of the AIM
Act, the volume of HFCs placed in new fire systems in the United States
has dramatically decreased. The commenter experienced more than 90
percent reduction in volume of HFCs in new systems, far exceeding the
intent and goals of the AIM Act. The commenter further stated that the
AIM Act has motivated fire system manufacturers to promote non-HFCs
alternatives and initiate approvals for recycled HFC use in new fire
systems. The commenter stated that there is no reasonable requirement
for EPA to overreach its authority and require the use of recycled HFCs
in the fire market, and that the market is responding and progressing
in an accelerated manner without prescriptive forces. The commenter
further stated if EPA believes it has the authority under the AIM Act
and there is a need and benefit to requiring the use of recycled HFCs
for fire suppression equipment, both new systems and service, in the
United States, the export of fire systems containing virgin HFCs should
continue to be allowed and qualify for the RACA process. The commenter
stated that requiring U.S. fire system manufacturers to use only
recycled agents for all global requirements would place them at a
significant competitive disadvantage and appreciably reduce the
available inventories of domestic recycled HFC fire extinguishing
agents.
Response: In response to this comment, EPA first notes that it
views the requirement in this final rule for recycled HFCs for fire
suppression equipment to align with the purpose of minimizing the
release of HFCs from that equipment under subsection (h) and to be
consistent with its authority under that provision, as discussed in
detail elsewhere in this section.\129\ EPA notes that with certain
limited
[[Page 82807]]
exceptions discussed in section IV.F, fire suppression equipment
installed in the United States will be required to meet the
requirements the Agency is finalizing in this action. The comments
regarding RACA are beyond the scope of this action and thus require no
further response because EPA has proposed no changes to the RACA
requirements of process. However, for purposes of providing information
to regulated entities, EPA notes that whether fire suppression
equipment may qualify for the RACA process depends on whether the
equipment meets the definition of bulk in 40 CFR 84.3, which EPA is not
reopening or revisiting through this rulemaking. For the purposes of 40
CFR part 84, subpart A, system cylinders, such as those used in total
flooding systems are bulk substances and may be eligible for the RACA
process. A portable fire extinguisher, in contrast, is not considered a
bulk regulated substance because it contains a dispensing apparatus and
may be used without transferring the contained regulated substance to
another container. These portable fire extinguishers are products and
are not eligible for the RACA process. Furthermore, RACAs are not
limited to virgin HFCs--additional consumption allowances may be
requested in general for verified exports of any bulk regulated
substance.
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\129\ The comment is not clear whether it intends to suggest
that the commenter views these provisions as an overreach of EPA's
authority or rather is simply stating that there would be no need to
overreach EPA's authority in this context (without expressing any
opinion as to whether the proposed provisions did so), the commenter
fails to provide any reasoning or analysis that would support an
argument that these provisions exceed EPA's authority and does not
provide any explanation for why it disagrees with the discussion of
authority for these provisions that EPA provided in the proposal.
Accordingly, even if the comment does intend to challenge EPA's
authority for the fire suppression provisions, those points are
addressed by EPA's discussion of its authority elsewhere in this
section and no further response is needed.
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EPA proposed a compliance date of January 1, 2025, for the initial
installation of fire suppression equipment with recycled HFCs, and also
considered other potential compliance dates. In this final rule, the
Agency sets a compliance date of January 1, 2030, for the initial
installation of fire suppression equipment with recycled HFCs.
Comment: One commenter stated that the compliance date of January
1, 2025, is feasible given the sector's overall comparatively small
volumes of material, as well as existing infrastructure and practices
regarding the use of reclaimed material, which already makes up a
significant percentage of overall volumes. A few commenters expressed
concern regarding the January 1, 2025, start date for the requirement
for the use of recycled HFCs for the initial installation of fire
suppression equipment.
One commenter stated that the time to implement the recycle
requirement proposal is not sufficient for industry to adjust. The
commenter stated that the proposed rule will likely leave stranded
virgin HFCs already in the U.S. inventory, given the few alternative
applications of fire suppression HFCs have for use in other market
segments, and claimed that the timeframe would damage responsible
manufacturers and shake industry confidence in clean agent fire
protection technologies. The commenter stated that the short enaction
timeframe would create significant delays, contract disputes, and
costly modifications for projects currently in process, since new fire
system requirements are mostly for newly constructed facilities, fire
systems are often the last item to be installed before occupancy, and
construction agreements are executed in advance of the delivery of the
specified fire system, with many subcontractor agreements. The
commenter mentioned that this too will further destabilize and reduce
confidence in the overall fire system industry and stall the current
market driven shift to recycled HFCs and alternative protection
options. Additionally, the commenter maintained that the fire
suppression industry operates under existing long-term contracts that
require commitments of certain volumes using specific agents and
asserted that the rule as proposed will cause problems and irreparable
financial harm to business and users with these contractual
obligations. The commenter stated that an alternative to the initial
fill rule proposed, which is a ban on the import of virgin HFCs for use
in domestic fire protection (except for the critical end-uses) after a
certain future date, could be considered. The commenter stated that
this may help avoid the irreparable financial harm to entities that
have, since September 23, 2021, acted in good faith under the framework
rule. The commenter expressed concerns that the passage of the rule,
with the recycled HFC initial fill requirement as proposed, will not
reduce HFC emissions or improve the environmental impact of HFC fire
systems to sufficiently offset the increased risk to property and
people.
The same commenter claimed that EPA's 2025 enaction timeframe
limits the ability to revise and adjust these agreements and would
create confusion among entities who have entered into agreements in
good faith under the AIM Act framework schedules and structures. The
commenter stated that if EPA were to enact this requirement, they would
recommend a start date of January 1, 2036, or after the AIM Act
phasedown to 15 percent of baseline is complete, in order to allow
equipment manufacturers to fulfill or modify existing contracts, and
for potential low-GWP alternatives to be introduced in an orderly
manner, supportive of the market balance the commenter maintains is
necessary for a viable, long-term, recycled HFC market. The commenter
stated that if EPA believes enactment of this rule is required, an in-
force date, no sooner than a 2030 through 2036 timeframe, must be
considered to provide sufficient time to effectively prepare for such a
ruling.
Another commenter requested that EPA extend the date of
implementation to January 1, 2027, to allow proper time for fire
suppression equipment manufacturers to assess any safety concerns or
unexpected impacts of transitioning to recycled substances and
development of the reclaimed HFC supply.
Another commenter stated that since the final rule will not be
published until sometime in 2024, the industry would have less than a
year to transition to using recycled HFCs for all first fills. The
commenter stated that if EPA decides to maintain this requirement in
the final rule, a start date of January 1, 2030, would be more
appropriate. The commenter stated that this would provide time for
equipment manufacturers to fulfill or modify existing contracts that
specify newly produced agent and find alternative avenues of supply.
One commenter stated that the proposal provides a short window to
perform the transition and, in their view, the most logical year would
be to start the transition in 2029 when the next stepdown happens. The
commenter stated that the fire suppression industry is project-based
and often, projects are worked in phases over many years.
One commenter stated that the proposal does not provide sufficient
time for the commercial aviation sector to safely comply with the
proposed fire suppression system requirements at ground facilities such
as hangars. The commenter requested that EPA extend the applicable
compliance deadlines for using recycled HFCs in fire suppression
systems.
Response: EPA acknowledges these comments both in support of and
raising concerns with the timing of the requirements for recycled HFCs
including sufficient availability of recycled HFCs for the initial
installation of fire suppression equipment. EPA acknowledges the
importance of the overall HFC phasedown and notes that comments on the
phasedown's structure, including a ban on the import of virgin HFCs for
use in fire suppression and use of consumption allowances to import
virgin HFCs, are beyond the scope of this action and require no further
response. The Agency does not agree that the provisions as
[[Page 82808]]
proposed will result in irreparable financial harm, given the
adjustment made in this final rule to extend the compliance date. As
noted previously, reliance on recovered and reusable HFCs will be
increasingly important. Informed by comments and after further
evaluation, EPA is finalizing the compliance date for the initial
installation of fire suppression equipment with recycled HFCs of
January 1, 2030, five years later than proposed and after the next
phasedown in 2029. This will provide any companies using virgin HFCs
for this purpose more time to transition to recycled HFCs. It will also
allow industry time to adjust any relevant existing contracts
concerning supply of recycled HFCs and provide more time to alleviate
concern about inadequate supply of recycled HFCs.
Comment: A couple of commenters also mentioned that potential cross
contamination continues to be an issue for recycled halon and that the
requirements in 40 CFR 84.110(c)(1) and (2) should support the
avoidance of this issue for HFCs in the fire suppression sector. One of
the commenters commended EPA for the requirements intended to prevent
cross-contamination of recycled fire suppression agents during
transfer, recovery, and storage, stating that the cross-contamination
of recycled halon 1301 is an ongoing problem, and that these
requirements would enhance ongoing industry efforts and keep it from
becoming a significant issue for HFCs.
Response: EPA acknowledges the comments that the requirements in 40
CFR 84.110(c)(1) and (2) should help to address potential cross-
contamination issues with HFCs used for fire suppression.
Comment: One commenter stated that EPA's proffered options for the
use of recycled HFCs for initial fill still come with difficult
challenges: how far out to extend the requirement to ensure sufficient
available recycled material, and how to report and manage a variable
percent recycled content requirement. The commenter stated that
existing AIM Act structure already presents a challenge to the use of
virgin HFCs in fire suppression due to their high-GWP allowance
opportunity cost. The commenter stated that this intent of the AIM Act
is motivating industry towards low/no GWP options where available,
promoting the general use of recycled material when possible, but
leaving the flexibility of new, virgin material for those applications
requiring the performance and safety of an HFC fire suppression agent
when low/no GWP options are suitable and recycled HFCs may be
unavailable. The commenter suggested that this is the right way to
manage the limited use of HFCs in fire suppression without putting
critical facilities and people at risk of a fire.
Response: As described in the proposal, EPA sought comments from
stakeholders on options that would be viable. The commenter does not
cite any provision in the AIM Act to support its assertion that the
Act's intent is to leave general flexibility to use new virgin material
for fire suppression applications nor does it cite any information or
data to support the implication that there are situations when
performance and safety requirements would indicate use of an HFC fire
suppressant but no low/no GWP options are suitable and recycled HFCs
are unavailable. Thus, EPA cannot provide a more detailed response to
these concerns. As explained in detail elsewhere in section IV.F.2.b of
this preamble, the provisions finalized in this rule, including the
requirements to use recycled HFCs in fire suppression equipment are
consistent with EPA's interpretation of its authority under subsection
(h) of the AIM Act and the direction in the statutory provision.
Further, elsewhere in section IV.F.2.b of this preamble, EPA has made
adjustments to the requirements in the final rule based on points
raised in public comments by delaying the compliance dates to address
possible concerns with the supply of recycle HFCs. To the extent this
comment concerns aspects of the AIM Act or EPA's implementing
regulations beyond the proposed rule under subsection (h)--such as the
allowances, the structure of the phasedown, and tradeable allowances--
it is outside the scope of this rulemaking. EPA has a long and
successful history of working with the fire suppression industry to
lead in the production phaseout of halons and transition to safe
alternatives through testing and changes to industry standards. This
has taken into consideration the needs and challenges in sectors such
as the military, oil and gas, maritime, and aviation to protect
critical facilities, equipment, and personnel. We look forward to
managing the ER&R program in the same way.
c. Requirements for Servicing and/or Repair of Existing Equipment for
Fire Suppression
EPA is requiring the servicing and/or repair of fire suppression
equipment to be done with recycled HFCs, including both total flooding
systems and streaming applications, starting on January 1, 2026.
Covered entities are required to evacuate, as applicable, all equipment
used to recover, store, and/or transfer HFCs prior to each use to
prevent contamination, arrange for destruction of the recovered HFCs as
necessary (e.g., recovered HFCs that are too contaminated to be
recycled), and collect and dispose of wastes from recycling process. If
the recycling of HFCs is not practical, the disposal of HFCs will help
to prevent releases of used HFCs into the atmosphere.
In 2015, data on recycling of HFC fire suppression agents were
collected as part of the HEEP, which is a voluntary data collection
effort implemented by the fire suppression industry. HEEP collects data
on sales of fire suppression agents for recharge in order to estimate
annual emissions of HFCs. These data showed that the HFC-227ea, HFC-
125, HFC-236fa and HFC-23 were all recycled for fire suppression
use.\130\ In recent years, approximately 75 percent of HFCs sold for
recharge came from recyclers, with 80 percent reported in 2020, based
on data submitted voluntarily to HEEP, which may not include all
entities in this sector.\131\
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\130\ HARC comments on Notice of Data Availability Relevant to
Management of Regulated Substances under the American Innovation and
Manufacturing Act of 2020 are available in the docket (EPA-HQ-OAR-
2022-0606) for this rulemaking at https://www.regulations.gov.
\131\ HARC Report of the HFC Emissions Estimating Program (HEEP)
2002-2020 Data Collection, October 2022.
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As part of servicing and/or repairing fire suppression equipment,
recovery and recycling equipment is used to recover HFCs. EPA is also
requiring that covered entities must (1) operate and maintain recovery
and recycling equipment in accordance with manufacturer specifications
to ensure that the equipment performs as specified; (2) repair leaks in
HFC storage, recovery, recycling, or charging equipment before use; and
(3) ensure that cross-contamination does not occur through the mixing
of HFCs that may be contained in similar cylinders. Recovery equipment
collects HFCs from equipment, and recycling equipment, which is used
during servicing and/or repair, removes contaminants from HFCs. By
ensuring that this equipment is functioning properly, HFC releases can
be minimized during the recovery and recycling process. The
requirements finalized in this rule will ensure that releases from fire
suppression equipment are minimized when recycling HFCs during
servicing and/or repairing fire suppression equipment.
Comment: One commenter stated that there is no need to require the
fire suppression industry to migrate to a
[[Page 82809]]
recycled agent for servicing existing systems. The commenter stated
that most important, protected assets require quick servicing, often
within 24 hours, in order to maintain their critical functions. The
commenter stated that sometimes, to maintain critical function in a
timely manner, newly made HFCs are more expedient. The commenter stated
that the high value risk and critical function requirements of many
protected facilities supports the continued availability of both
options, virgin and recycled, to best manage risk for these facilities.
Another commenter mentioned that the AIM Act has already
effectively reduced the use of HFCs in new fire suppression systems
beyond the statutory requirements of the Act, reinforcing the use of
recycled HFCs for servicing existing systems. This comment is also
covered in section IV.F.2.b of this final rule.
As mentioned in section IV.F.2.b of this final rule, one commenter
expressed support for EPA's proposal to increase the use of reclaimed
and recycled HFCs in new and existing HFC-containing fire suppression
equipment. Another commenter also expressed support for the proposal to
require the use of recycled HFCs to service existing fire suppression
equipment. The commenter stated that as the HEEP data show, recycled
HFCs already provide the vast majority of agent used for servicing in
the United States. The commenter suggested that the requirement to use
recycled HFCs for servicing should begin on January 1, 2028, in order
to provide adequate time for any companies still using virgin HFCs for
service to make the transition.
Response: As the HEEP data show, recycled HFCs are already
extensively being used for servicing. EPA understands this to be
already industry practice used by most entities. EPA also appreciates
the need for flexibility in supporting critical function of fire
suppression equipment and in particular for high value equipment.
Therefore, EPA is finalizing a later compliance date than proposed for
the use recycled HFCs in the service and/or repair of fire suppression
equipment (i.e., January 1, 2026) to provide industry time to adjust to
the changes, make any necessary infrastructure changes, and make any
necessary changes to existing business contracts. This delay of the
compliance date will enable the fire suppression industry to build up
additional stock of recycled HFCs to meet demand for servicing and/or
repair of fire suppression equipment. While one commenter suggested a
compliance date of 2028 for servicing, EPA concludes that an earlier
compliance date than 2028 is reasonable for these requirements, given
the use of recycled HFCs is already common practice in the fire
suppression industry for this application.
Comment: As covered in section IV.F.2.b of this final rule, one
commenter mentioned that the final rule should preserve the ability to
use substitutes for initial installation and servicing/repair of fire
suppression equipment.
Response: As covered in section IV.F.2.b of this final rule, EPA
acknowledges the comment. As responded to in section IV.F.2.b of this
final rule, nothing in this final rule impedes the use of fire
suppression alternatives.
d. Fire Suppression Technician Training
Starting as of January 1, 2026, EPA is requiring that all entities
that employ fire suppression technicians who maintain, service, repair,
install, or dispose of fire suppression equipment containing HFCs must
provide training (as described in this section) and ensure that their
fire suppression technicians complete this training. Fire suppression
technicians must be trained by June 1, 2026. Fire suppression
technicians hired after January 1, 2026, must be similarly trained
within 30 days of hiring, or by June 1, 2026, whichever is later. EPA
considers this a one-time training requirement. This requirement is
intended to control practices, processes, or activities regarding
servicing, repair, disposal, or installation of such fire suppression
equipment by providing fire suppression technicians with knowledge and
skills to minimize releases of HFCs during such practices, processes,
or activities, and the requirements involve a regulated substance. Fire
suppression technicians are an important part in any effort to control
unnecessary HFC emissions from fire suppression equipment while
servicing, repairing, installing, or disposing of such equipment. By
training fire suppression technicians in the significance of minimizing
unnecessary HFC releases from fire suppression equipment and providing
information on applicable procedures such as the recovery and recycling
or reclamation of HFCs from the fire suppression equipment, technician
training supports EPA's effort to reduce HFC emissions from fire
suppression equipment.
The HFC fire suppression technician training must be designed to
include: (1) An explanation of the purpose of the training requirement,
including the significance of minimizing releases of HFCs and ensuring
technician safety; (2) an overview of HFCs and environmental concerns
with HFCs including discussion of other Federal, State, local, or
Tribal fire, building, safety, and environmental codes and standards;
(3) a review of relevant regulations concerning HFCs,\132\ including
the requirements of this section that apply with respect to fire
suppression equipment; and (4) specific technical instruction relevant
to avoiding unnecessary HFC emissions during the servicing, repair,
disposal, or installation of fire suppression equipment.
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\132\ These may include, but are not limited to, other EPA
regulations, DOT regulations, Occupational Safety and Health
Administration (OSHA) regulations, codes and standards of NFPA, and
other federal, state, or local fire, building, safety, and
environmental codes and standards.
---------------------------------------------------------------------------
Comment: A few commenters expressed their support for EPA's
proposed training requirement for fire suppression technicians. One of
the commenters expressed support for the proposed training requirements
for this sector to ensure higher rates of recovery and recycling of
HFCs. The commenter stated that the proposed training requirements will
be highly valuable to the fire suppression sector which has technicians
skilled in the recovery and recycling of HFCs. Another commenter
supported enhanced training for fire suppression technicians to
facilitate the implementation of the fire protection requirements.
One commenter requested that EPA develop course content of the
required training and make it available to the regulated community. The
commenter stated that this would ensure consistent course content
across the country and be far more cost-effective then having every
regulated facility generate training for the technicians that service
their regulated fire suppression systems.
Response: EPA acknowledges commenters' support of the training
requirement for fire suppression technicians and is finalizing this
requirement as proposed with only a change to the compliance date to
January 1, 2026, to align with other changes such as the compliance
date for the servicing and/repair of fire suppression equipment to be
done with recycled HFCs. The Agency acknowledges the request for
consistent course content across the country; however, the Agency
considers the affected entities able to design effective training on
their own taking into consideration their needs and practices, as
relevant. That said, on a voluntary basis, EPA could review and provide
[[Page 82810]]
feedback on training programs and materials. The Agency has provided a
list of the primary topics to be included in the training: (1) An
explanation of the purpose of the training requirement, including the
significance of minimizing releases of HFCs and ensuring fire
suppression technician safety; (2) an overview of HFCs and
environmental concerns with HFCs; (3) a review of relevant regulations
concerning HFCs, including the requirements of the HFC emissions
reduction program for fire suppression equipment; and (4) specific
technical instruction relevant to avoiding unnecessary HFC emissions
during the servicing, repair, disposal, or installation of fire
suppression equipment at each individual facility. EPA may provide
suggested resources to assist entities to develop the training as
necessary.
e. Recycling of HFCs Prior to Disposal of Fire Suppression Equipment
Containing HFCs
EPA proposed requirements related to the disposal of fire
suppression equipment. The intent of these requirements is to ensure
that HFCs have been recovered and recycled from the equipment prior to
the final step of the disposal of the equipment so that HFCs are not
released during the disposal of the equipment. EPA is requiring owners
and operators of fire suppression equipment containing HFCs (including
an HFC blend) to dispose of this equipment by recovering the HFCs
themselves or by arranging for HFC recovery by a fire suppression
equipment manufacturer or distributor, or a fire suppressant recycler.
EPA is also requiring that owners and operators dispose of HFCs used as
a fire suppression agent by sending them for recycling to a fire
suppressant recycler or a reclaimer certified under 40 CFR 82.164 or by
arranging for its destruction using one of the controlled processes
listed in 40 CFR 84.29. Consistent with 40 CFR part 82, subpart H,
disposal of HFCs used as a fire suppression agent means the process
leading to and including discarding of HFC-containing equipment. The
voluntary industry standards that apply to the uses of HFCs in fire
suppression equipment, NFPA 2001 for fire suppression systems and NFPA
10 for fire extinguishers, contain no current requirement for the
recovery and disposal of HFCs prior to disposal of equipment. Efforts
by the industry to minimize emissions of HFCs used in the fire
suppression sector have to date been on a voluntary basis. For example,
the VCOP includes as part of its emission reduction strategies during
storage, handling, and transfer of HFCs, requirements to recover the
agents after the end of the equipment's useful life and either recycle
or destroy them. These requirements will minimize emissions of HFCs
through recovery of the agent prior to disposal of the equipment and
ensure that recycling or proper disposal of HFCs occurs broadly within
this sector of use. Under the requirements, the owners and operators of
this equipment (e.g., specialized fire suppression systems containing
HFCs that protect high value equipment, such as electronic server rooms
or oil and gas production facilities) must ensure that HFCs are
recovered from the fire suppression equipment before it is sent for
disposal, either by recovering the HFCs themselves before sending the
equipment for disposal or by leaving the HFCs in the equipment and
sending it for disposal to a facility (e.g., fire suppression equipment
manufacturer, a distributor, or a fire suppressant recycler) operating
in accordance with industry standards (i.e., NFPA 10 and NFPA 2001
standards), as applicable. The owners or operators of fire suppression
equipment also must recover any HFCs, as part of the disposal of such
equipment, by sending them to a fire suppressant recycler operating in
accordance with the relevant industry standards, which EPA understands
to be the NFPA 10 and NFPA 2001 standards (depending on the type of
equipment), by sending them to a reclaimer certified under 40 CFR
82.164, or by arranging for their destruction by a technology that is
listed as an approved technology for destruction of the relevant
regulated substance in the regulations at 40 CFR 84.29. As part of
implementing subsection (h)(1) of the AIM Act, these requirements
control practices, processes, or activities regarding the disposal of
such fire suppression equipment by establishing certain requirements
that must be met as part of the disposal process and involve a
regulated substance.
Owners and operators of fire suppression equipment who recover HFCs
prior to disposal may already be aware of the importance of HFC
recycling given prior communication efforts by the industry and may
already take steps to ensure recovery of HFCs prior to disposal. The
recycling of HFCs plays an important role in providing the fire
suppression sector with continued supply of HFCs for fire suppression
equipment during servicing. Industry trade organizations have
encouraged owners and operators of fire suppression equipment and those
disposing of HFCs to contact fire suppression equipment manufacturers,
distributors, or fire suppressant recyclers to ensure that HFCs are
safely recovered from equipment and recycled for future use. Therefore,
the requirements finalized in this rule are likely consistent with
current industry practices. Most fire suppression systems and
extinguishers in use today are purchased, installed, and serviced by
fire suppression equipment distributors. EPA is aware that there are
established distribution channels within the commercial and industrial
sectors where these specialized systems are used. Industry
representatives have also indicated that the simplest way in their
opinion to ensure proper recycling of HFCs is to encourage equipment
owners to return equipment containing HFCs to distributors.\133\ EPA
values using established industry practices where such practices exist
and can be used to meet the Agency's intended goals.
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\133\ HARC comments, dated November 7, 2022, to Notice of Data
Availability Relevant to Management of Regulated Substances Under
the American Innovation and Manufacturing Act of 2020 are available
in the docket (EPA-HQ-OAR-2022-0606) for this rulemaking at https://www.regulations.gov.
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Comment: One commenter expressed support for the requirements in
sections 84.110(e) and 84.110(f) on the disposal of fire suppression
equipment and the disposal of HFCs used in fire suppression. Another
commenter also supported the proper disposal of HFC fire suppression
equipment and agents.
Response: EPA acknowledges the commenters' support for the
requirement to recycle HFCs prior to disposal of fire suppression
equipment containing HFCs and is finalizing as proposed requirements to
recover and recycle HFCs prior to the final step of disposal of the
fire suppression equipment.
f. Recordkeeping and Reporting
EPA is finalizing recordkeeping and reporting requirements on the
fire suppression provisions under subsection (h) for HFCs used in the
installation of new equipment and servicing and/or repair of existing
equipment. EPA is finalizing these recordkeeping and reporting
requirements mainly as proposed with some modifications to the
requested information to clarify the intent of the regulatory text. As
part of implementing subsection (h)(1) of the AIM Act, these provisions
control practices, processes, or activities regarding servicing,
repair, disposal, or installation of fire suppression equipment, and
involve a regulated substance. For example, the
[[Page 82811]]
requirements control recordkeeping and reporting practices, process, or
activities for servicing and repair that involves HFCs.
EPA is requiring covered entities in the fire suppression sector to
provide data on HFCs to the Agency. The fire suppression industry is
familiar with data collection and reporting, as some of the entities in
this industry are voluntarily reporting data to HEEP as mentioned in
section IV.F.2.b of this preamble. Relevant reporting entities covered
under this requirement include entities that perform first fill of
equipment, service (e.g., recharge) equipment and/or recycle regulated
substances. Relevant entities include companies, such as equipment
manufacturers, distributors, agent suppliers, or installers that
recycle regulated substances. Records related to the fire suppression
sector must be maintained for three years. Specifically, the covered
entities must submit a report to the Agency annually covering the prior
year's activity from January 1 through December 31. The first annual
report must be submitted to the Agency on February 14, 2027, and
subsequent annual reports must be submitted by February 14 of each
subsequent year. Each annual report must be submitted electronically,
using the Agency's applicable reporting platform. Each annual report
must contain basic identification information (i.e., owner name,
facility name, facility address where equipment is located) and the
following information for each regulated substance:
The quantity of material (the combined mass of regulated
substance and contaminants) sold for the purpose of installation of new
fire suppression equipment and servicing and/or repair of existing fire
suppression equipment;
The quantity of material (the combined mass of regulated
substance and contaminants) in inventory onsite for the purpose of
installation of new fire suppression equipment and servicing and/or
repair of existing fire suppression equipment broken out by recovered,
recycled, and virgin;
The total sold for the purpose of installation of new fire
suppression equipment and servicing and/or repair of existing fire
suppression equipment;
The total mass in inventory onsite for the purpose of
installation of new fire suppression equipment and servicing and/or
repair of existing fire suppression equipment broken out by recovered,
recycled, and virgin; and
The total mass of waste products the reporting entity sent
for disposal, along with information about the disposal facility if
waste is not processed by the reporting entity.
Covered entities must maintain an electronic or paper copy of the
fire suppression technician training as discussed in section IV.F.2.d,
and EPA can request to view a copy of the training on an as needed
basis. EPA is also requiring facilities to document that they have
provided training to personnel. For example, local personnel records
could be annotated, indicating where and when the training occurred.
Alternatively, records could be centralized. Where EPA established
requirements for recordkeeping, the Agency is requiring that the
records be maintained for three years in either electronic or paper
format.
As discussed in section IV.F.2.e, EPA is requiring that covered
entities maintain records documenting that HFCs are recovered from the
fire suppression equipment before the equipment is sent for disposal,
either by recovering the HFCs themselves before sending the equipment
for disposal or by leaving the HFCs in the equipment and sending it for
disposal to a facility (e.g., fire suppression equipment manufacturer,
distributor, or a fire suppressant recycler). Such records must be
maintained for three years.
The recordkeeping and reporting requirements in this action do not
change any recordkeeping and reporting requirements for fire
suppressant recycling per 40 CFR 84.31(j) (Subpart A) and EPA is not
reopening or revisiting those requirements through this action. If any
entity is reporting information to EPA under Subpart A that is also
required under the reporting provisions established in this final rule
at 84.110(g), EPA will consider the information reported under Subpart
A in evaluating whether the corresponding reporting obligations under
this final rule have been satisfied. There is one instance where there
is overlap between 40 CFR 84.31(j) and in this final rule at 84.110(g).
Under 40 CFR 84.31(j), each recycler of a regulated substance used as a
fire suppressant must submit a report containing the quantity of each
regulated substance held in inventory onsite broken out by recovered,
recycled, and virgin. To the extent the information reported by an
entity under Subpart A overlaps with the information that must be
reported under provisions established in this final rule at 84.110(g),
in lieu of reporting the same information twice, in completing the
reporting under 84.110(g) the entity may refer to the corresponding
information reported under Subpart A and explain how it satisfies the
reporting requirements under 84.110(g).
Comment: A couple of commenters expressed concerns about the
requirements for reporting and recordkeeping being onerous and
unnecessary. The commenters stated that the current requirements under
the Allocation Program provide sufficient information for EPA to track
the amount of HFCs being used and recycled for fire suppression. The
commenters also claimed that the domestic movement of halons or HCFCs
used for fire suppression have had no history of illegal activity,
while the high GWPs of fire suppression agents make it unlikely that
fire suppression equipment would be used to illegally move HFCs. The
commenters also claimed that existing reporting, recordkeeping, and
testing requirements under 40 CFR 84.31(j) have been challenging for
the industry, to a degree that companies in the sector who previously
performed HFC recycling in-house no longer perform that service to
avoid EPA reporting requirements. The commenters also stated that if
the proposed reporting and recordkeeping requirements take effect,
companies may choose to not to install or service HFC-based equipment,
which they claimed would work against the stated goal of the AIM Act
framework rule to stimulate HFC recycling and could lead to increased
HFC emissions. Additionally, the commenters stated that the management
of halons in the United States over the last several decades has
demonstrated a model of collaboration between industry, government, and
users, which the commenters maintained has been accomplished with the
necessary reporting requirements on manufacture, import, and export.
One of the commenters claimed that the degree of reporting and
recordkeeping requirements in the existing requirements and the
proposed action makes the regulation burdensome, while bringing no
environmental benefit. The commenter claimed this burden would further
disrupt the market balance currently allowing for environmentally
responsible, circular economy, commercial options. The commenter stated
that increasing the burden of recordkeeping and reporting beyond what
is currently proven successful would provide no value to EPA or
industry, and would add what they characterized as unnecessary
complexity to an already challenging situation. The other commenter
questioned why EPA needs a report of every HFC-based fire protection
system or extinguisher that is sold or serviced in the United States.
[[Page 82812]]
Response: EPA acknowledges the time and resources that reporters
dedicate to fulfilling reporting requirements. EPA considers these
recordkeeping and reporting requirements to be a reasonable approach to
assessing compliance with requirements under subsection (h) to help
ensure the rules serve their intended purposes of minimizing releases
of HFCs from fire suppression equipment. Additionally, the fire
suppression industry is familiar with data collection and reporting
under HEEP, which helps industry minimize emissions by setting
benchmarks, among other things. HEEP supports successful implementation
of the elements of the VCOP. EPA acknowledges that the fire suppression
industry has been voluntarily reporting under HEEP, however because
this reporting is voluntary and managed by a third party, EPA could not
reasonably be expected to have complete information in order to
accurately assess compliance by individual companies subject to this
rule. EPA is not asking for information for every individual piece of
equipment, but instead on the quantities of HFCs sold, the quantities
in inventory onsite including virgin, recovered, and recycled HFCs, and
virgin as well as quantities sent for disposal. This information is
similar to information already reported by certain members of the
industry on a voluntary basis to HEEP. The recordkeeping and reporting
requirements will support compliance and improve the overall
understanding of the availability of recycled HFCs used in the fire
suppression sector. This information may provide data that is helpful
in implementing the regulations and assessing compliance. This
information may also help to inform future rulemakings under the AIM
Act. Consistent with EPA's approach under other AIM Act programs, EPA
intends to share data publicly. Additionally, these requirements are
limited to entities that perform first fill of equipment, service
(e.g., recharge) equipment and/or recycle regulated substances.
Relevant entities include companies, such as equipment manufacturers,
distributors, agent suppliers, or installers that recycle regulated
substances. These covered entities are in the same categories as those
that provide information on a voluntary basis to HEEP (i.e., in 2020,
16 companies reported to HEEP). As a result, the Agency disagrees with
the commenters' assertion that recordkeeping and reporting would bring
no environmental benefit. Under 40 CFR part 84, subpart A, information
is collected for the purposes related to the Allocation Program and
requested from fire suppression recyclers only. EPA is requesting
information from covered entities under this provision to account for
the management of HFCs and to minimize releases in the fire suppression
sector. EPA intends to limit to the extent practicable duplicative
burden between part 84 subparts A and C by using the same reporting
systems. If there are any duplicative requirements, entities would only
report once. As noted in section II.B of this preamble, recordkeeping
and reporting under the AIM Act are also supported by section 114 of
the CAA, which applies to the AIM Act and rules promulgated under it as
provided in subsection (k)(1)(C) of the AIM Act.
Comment: Another commenter stated that fire suppression systems can
accidently be triggered to release the regulated substance (e.g.,
electronic failure) and are not situations of intentional release or
releases due to failure to maintain the system. The commenter suggested
that EPA require, under 40 CFR 84.110(g), that the owner/operator
maintain documentation for three years from the date of release of any
accidental releases of a regulated substance from a fire suppression
system that was not a result of failure to maintain the system. The
commenter also requested that EPA specify the address or location where
to send the report requested in 84.110(g).
Response: EPA acknowledges the suggestion for including the date of
release of any accidental releases of a regulated substance from a fire
suppression system that was not a result of failure to maintain the
system. EPA understands that accidental releases in these fire
suppression systems are relatively rare, and any releases are typically
addressed quickly due to the nature of the specialty equipment these
fire suppression systems are protecting. For these reasons, EPA is not
finalizing such a requirement because the Agency does not plan to use
this information at this time.
Reports requested in 84.110(g) must be submitted electronically
using the Agency's applicable reporting platform.
G. What requirements is EPA establishing for handling disposable
cylinders?
1. Requirements for Disposable Cylinders
EPA proposed to require that disposable cylinders containing HFCs
and that have been used for the servicing, repair, or installation of
refrigerant-containing equipment or fire suppression equipment must be
sent to an EPA-certified reclaimer or a fire suppressant recycler. EPA
also proposed that these entities (i.e., reclaimers and fire
suppressant recyclers) must remove all HFCs, including any remaining
amount after the cylinders are considered empty for servicing, repair,
and installation purposes (e.g., the heel), prior to discarding these
cylinders. The Agency proposed a compliance date of January 1, 2025,
for requiring that disposable cylinders be sent to a reclaimer or fire
suppressant recycler and for the removal of HFCs from disposable
cylinders. EPA also proposed that the remaining heel in containers that
have been used in the servicing, repair, or installation of equipment
would not be considered a virgin regulated substance. Additionally, EPA
requested comment on an alternative approach that would involve
requiring the final processor of a disposable cylinder to ensure that
all regulated substances, including the remaining heel, have been
recovered prior to final disposition of the cylinder; or a combination
of the lead proposal and this alternate approach. Related to the
alternative approach, EPA discussed the consideration of recordkeeping
requirements that would be necessary for the alternative approach and
requested comments on other relevant factors such as the level of
vacuum needed to ensure proper evacuation of the heel and information
on recovery machines available to perform the heel removal. EPA also
requested comment broadly on the current channels by which disposable
cylinders are transported to have the heels removed.
EPA is finalizing aspects of the proposal, with modifications,
after consideration of the comments and information received on the
proposed rule. First, EPA is requiring that disposable cylinders that
contain HFCs and that have been used for the servicing, repair, or
installation of refrigerant-containing equipment or fire suppression
equipment must be sent to a reclaimer, fire suppressant recycler, final
processor, or refrigerant supplier for removal of the heel. EPA is also
requiring that the removed heel must be sent to an EPA-certified
reclaimer for further processing. In the case where disposable
cylinders contain a heel of an HFC refrigerant that has flammability
characteristics (i.e., class 2 or class 2L), EPA is finalizing that
final processors or wholesalers/distributors may remove these heels
that would be considered ignitable spent refrigerant under 40 CFR part
266, subpart Q, as long as the recovered ignitable spent refrigerant is
sent to an EPA-certified reclaimer
[[Page 82813]]
meeting the RCRA alternate standards, as described in section IV.H. The
Agency is also delaying the proposed compliance date from January 1,
2025, to January 1, 2028, to allow additional time for implementation
(as described in subsequent responses to comments).
Finally, the Agency is establishing an alternate approach informed
by comments received on the proposed rule for appropriate levels of
evacuation of the heel from disposable cylinders. As discussed in
response to comments in this section, EPA received comments suggesting
an evacuation level of 15 inches of mercury (in-Hg) for disposable
cylinders. After consideration of the comments, EPA is establishing an
alternate compliance method where a certified technician evacuates a
disposable cylinder to a level of 15 in-Hg (relative to a standard
atmospheric pressure of 29.9 in-Hg), certifies that they have done so,
and provides a certification statement accompanying the evacuated
disposable cylinder to the final processor. If these criteria are met,
a certified technician may discard the cylinder to a final processor,
and the cylinder would not need further processing or be sent to a
reclaimer or fire suppressant recycler.\134\ In establishing this
alternate compliance method, the Agency does not intend for final
processors to accept certification statements from a certified
technician if the final processor knows or has reason to know that a
certification statement contains falsified information (e.g., if there
are clear indications that the heels within a disposable cylinder have
not been evacuated properly, such as punctures in the cylinder that
would suggest improper venting of the cylinder's heel), it would be
inconsistent with the intent of this provision for the final processor
to accept those cylinders and the accompanying certification. The
certification statement must be signed by the certified technician who
removed the heel and accompany each disposable cylinder discarded in
this way. If all the disposable cylinders in a shipment were evacuated
by the same technician, the technician may provide a single
certification that covers each of the cylinders in the shipment. The
certification must include the statement and information as provided in
40 CFR 84.116(e). EPA is also finalizing that a final processor who
receives a disposable cylinder being discarded in this way must
maintain a record of the signed certification statement for three
years.
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\134\ EPA clarifies that under 40 CFR 261.7(b)(2), a container
that has held a hazardous waste that is a compressed gas is empty
when the pressure in the container approaches atmospheric. Where a
disposable cylinder that contained a refrigerant with mild
flammability characteristics (e.g., class 2 or 2L) is being
discarded using the alternate compliance method, evacuating to a
vacuum of 15-in Hg would also meet the requirements for an ``empty
container'' under 40 CFR 261.7(b)(2), since the vacuum of 15 in-Hg
would be an evacuation level beyond atmospheric pressure.
---------------------------------------------------------------------------
Comment: Many commenters generally supported the proposed
requirements to have disposable cylinders sent to certified reclaimers
or fire suppressant recyclers for removal of the remaining heel. Some
commenters stated that the requirements would support the goals of
subsection (h) aimed at minimizing releases and maximizing reclamation.
Many other commenters opposed the proposed requirements with a few
commenters requesting that EPA eliminate the requirements from the
final rule altogether.
Response: EPA acknowledges the comments in support of these
provisions and responds that the Agency is finalizing these
requirements with additional flexibilities and a later compliance date
to ensure effective and efficient implementation. EPA agrees that these
requirements are important for meeting the purposes identified in
subsection (h) of the AIM Act and promote increased opportunities for
reclamation. As discussed in the proposed rule, heels from used
disposable cylinders provide an important source of material that can
bolster the amount of refrigerant that can be reclaimed. HFC releases
of heels are far more likely to occur from disposable cylinders than
from other types of cylinders, and those amounts of HFCs released are
not available for reclamation. Comments in opposition of the
requirements that were proposed are discussed in more detail in this
section.
Comment: Some commenters questioned EPA's authority to require that
used disposable cylinders be sent to reclaimers or fire suppressant
recyclers. One commenter stated that the proposed provision was outside
the scope of the authority of subsection (h). The commenter opposed
EPA's interpretation of ``any practice, process, or activity regarding
the servicing, repair, disposal, or installation of equipment . . .''
to cover practices, processes, and activities that may occur before or
after the servicing, repair, disposal, or installation of equipment,
stating that the interpretation took a limited grant of authority in
subsection (h) to an unlimited grant of authority over the entire HVACR
supply chain. The commenter stated that the provisions for shipping
disposable cylinders containing heels is beyond the authority granted
in subsection (h)(1), even it can increase refrigerant reclamation.
Another commenter stated that the requirement for used disposable
cylinders to be sent only to reclaimers or fire suppressant recyclers
was arbitrary and capricious and not adequately justified and that EPA
did not properly consider others in the supply chain that could remove
the heel from disposable cylinders. Another commenter stated that the
authority under subsection (h) does, in fact, allow EPA to establish
this provision, as it aligns with the statutory language in subsection
(h).
Response: EPA agrees with the commenter's conclusion that this
provision aligns with EPA's authority under subsection (h) and
disagrees with the comment asserting that EPA is interpreting an
unlimited grant of authority of the HVACR supply chain under subsection
(h). As described above in this notice and in the proposal, subsection
(h) of the AIM Act directs EPA to promulgate regulations to control,
where appropriate, any practice, process, or activity regarding the
servicing, repair, disposal, or installation of equipment that involves
regulated substances, among other things, for purposes of maximizing
reclaiming and minimizing the release of a regulated substance from
equipment and ensuring the safety of technicians and consumers. EPA
interprets this authority to include the comprehensive practice,
process, or activity regarding the servicing, repair, disposal, or
installation, including aspects that may occur before or after the
servicing, repair, disposal, or installation of the equipment. This
interpretation is supported by both the text of the provision and the
statutory context in which it appears. With respect to the text,
Congress authorized EPA to regulate ``any practice, process, or
activity regarding the servicing, repair, disposal, or installation of
equipment'' (emphasis added). The term ``regarding'' is broad and
indicates that Congress intended for EPA's authority to encompass not
only the actions or events directly involved in the servicing, repair,
disposal, or installation of equipment, but also practices, processes,
or activities that relate to or concern the servicing, repair,
disposal, or installation of equipment. This could include practices,
processes, or activities that occur before or after the servicing,
repair, disposal, or installation. Similarly, by authorizing
regulations to control ``any practice, process, or activity,'' Congress
conveyed EPA authority to control actions or
[[Page 82814]]
situations that occur throughout, or at any point, during the relevant
practice, process, or activity. This interpretation is also consistent
with ensuring that the regulations can fully serve the purposes
identified in subsection (h)(1) (``maximizing'' reclamation,
``minimizing'' release, and ``ensuring'' safety), as EPA may need to
regulate actions or situations that occur before or after the
servicing, repair, disposal, or installation to achieve these purposes.
EPA acknowledges the statutory language to promulgate regulations ``as
appropriate'' to control such practices, processes, and activities.
Based on EPA's interpretation of this provision, subsection (h)(1)
authorizes the Agency to develop regulations that include provisions
for the handling of HFCs in a disposable cylinder when the cylinder and
a portion of the HFCs contained therein were used in the servicing,
repair, disposal, or installation of equipment. The use of HFCs in
these cylinders is a typical practice during servicing, repair, or
installation of equipment and the associated disposal of the cylinder,
and typically some HFCs remain in the cylinder after such use, unless
steps have been taken to remove them from the cylinder. Accordingly,
the disposition of the HFCs remaining in the cylinder is inherent to
the use of HFCs in such cylinders in the servicing, repair, disposal,
or installation of equipment. Thus, the Agency considers these
requirements as establishing appropriate controls for a practice,
process, or activity as related to the servicing, repair, or
installation of equipment.
Comment: A number of commenters questioned the amount of HFC
refrigerant that remains in the heel of disposable cylinders. Some
commenters provided information on the amount left in the heels of
disposable cylinders based on experience and data. Commenters provided
various estimates, including (percentages based on a nominal 30-pound
disposable cylinder): 0.1 pounds (~0.33%), 0.3 pounds (1%), 0.5 pounds
(~1.67%), 1.25 pounds (~4.16%), and 1.5 pounds (5%). One commenter
cited various other estimates including 1.85 percent from CARB, noting
this was also corroborated by Heating, Air-conditioning and
Refrigeration Distributors International (HARDI), and 0.2 percent to
4.4 percent from Chemours, an HFC producer. The commenter also cited
National Refrigerants, a reclaimer, stating that 90 percent of
cylinders have a remaining heel of 0.5 pounds (about two percent by
weight) or less and that 60 percent have no discernible heel. One
commenter provided sample data from UL testing of an SAE J2788 AC
Service Machine, noting the net remaining heel was around 50 grams
(~0.1 pounds), and was typical of heels in disposable cylinders used in
the MVAC industry. Another commenter stated that around two-thirds of
used cylinders are completely empty. Other commenters stated that the
remaining heel in disposable cylinders is minimal as contractors and
technicians have a strong incentive to use as much refrigerant from
disposable cylinders as possible. Another commenter provided data on
remaining refrigerant in small cans of automotive refrigerant per
CARB's regulations, with a remaining amount of 4 percent.
One commenter stated that there were inconsistencies in the draft
RIA and supporting draft Cylinder Analysis TSD.\135\ Further, the
commenter stated EPA did not clearly and consistently identify heel
estimates used when assessing potential benefits of the cylinder
management requirements. The commenter stated that the proposed rule
preamble was not clear in how the heel estimate of 1.25 pounds was
concluded, while relevant analyses assumed a heel of 0.96 pounds. The
commenter stated that EPA referenced personal communications for the
heel estimates but did not make clear the sources of the information or
provide them or supporting documentation in the docket for the
rulemaking and that other relevant studies are available and could have
been used to provide information on concluding an accurate heel
estimate. Such studies were provided to EPA in previous comments to the
Allocation Framework Rule. The commenter provided studies and related
data that they stated could be used to estimate the heel in a
disposable cylinder. The commenter also stated that EPA's assumption
that 95 percent of all cylinders are vented is an extraordinary
assumption, though 95 percent may be feasible if it is based on the
number of cylinders that are not returned to companies after they are
sold. The commenter continued to state that there is currently no
nationally applicable cylinder take-back program, and licensed
professionals who use the cylinders would not be expected to return
them but, rather, dispose of them properly without illegal venting,
such as through recovery of heel with a vacuum pump in the field; in-
house refrigerant recovery or recycling; or sending non-refillable
cylinders to a reclamation facility. The commenter noted previously
available information on rates of cylinder venting.
---------------------------------------------------------------------------
\135\ EPA further notes that this comment stated that it was
incorporating the OMB Pass-Back records in EPA-HQ-OAR-2022-0606-0028
with the stated goal of ensuring that these records would be
included within the administrative record for any subsequent
judicial review of this rulemaking. EPA responds that section
307(d)(7)(A) of the CAA is clear that the record for judicial review
does not contain interagency review materials as described in CAA
307(d)(4)(B)(ii).
---------------------------------------------------------------------------
Response: EPA acknowledges these comments and understands that the
estimate of a typical heel in a disposable cylinder may vary. Given the
wide variety of estimates from commenters on the amount of heel in a
typical disposable cylinder, EPA maintains its central estimate that a
typical heel is 4 percent by weight of the cylinder. We have updated
the Refrigerant Cylinders: Analysis of Use, Disposal, and Distribution
of Refrigerants TSD to more clearly and consistently show this
assumption as well as a low and high estimate. In the Economic Impact
and Benefits TSD, the Agency also provides a sensitivity analysis using
a value of 1.2 percent, as provided by a commenter, which EPA
understands to be a possible estimate for the remaining heel in a
cylinder. The amount (mass) of an HFC held in a full disposable
cylinder varies by HFC, and hence the amount of the heel would vary.
Although typical full sizes include 30 pounds (e.g., HFC-134a) and 25
pounds (e.g., R-410A), to be conservative EPA used 24 pounds (e.g., R-
404A) as the cylinder size, thus leading to a heel of 0.96 pounds or
0.288 pounds in the sensitivity analysis. As one commenter pointed out,
at proposal, EPA had estimated higher heel amounts; this was due to the
higher estimates of the charge size of cylinders and has been updated
in the Economic Impact and Benefits TSD. EPA further notes that the
information on which it was relying for the analyses for the proposed
rule was reflected in the draft Cylinder Analysis TSD, which was
included in the docket for this rulemaking. As noted, EPA has updated
the draft TSD and includes revisions to clarify the source of
information that is presented in the TSD and used for relevant
calculations. Thus, the relevant information that was considered in
developing the proposed rule was available in the docket at the time of
proposal. Likewise, the information and data on which the final rule is
based is also included in the docket.
In addition to the above sensitivity analysis, EPA performed
analyses assuming a much higher number of disposable cylinders,
assuming full recovery of a large share of such cylinders, and a
combination of all three assumptions. EPA refers to the
[[Page 82815]]
Economic Impact and Benefits TSD for additional details and results.
EPA responds to the commenter regarding the venting rate of
refrigerant heels in disposable cylinders. EPA is not using the
assumption that 95 percent of heels are vented as a basis for its
analysis in either the preamble, the Economic Impact and Benefits TSD,
or in any other supporting documents. In the Economic Impact and
Benefits TSD, EPA provided a cost and emissions reduction analysis for
disposable cylinder heels with two venting scenarios: a scenario in
which 10 percent of cylinder heels are vented, and a control analysis
in which 100 percent of refrigerant heels are vented. See Table K-5 of
the TSD. Readers may estimate approximate costs and benefits at
different venting scenarios by linearly interpolating between the
results of the two scenarios conducted. EPA acknowledges that there are
other publicly available estimates of refrigerant venting, including
CARB's estimate that 70 percent of disposable cylinders are recycled or
disposed of without heel evacuation.
Comment: One commenter expressed concern with the Agency's draft
RIA addendum and conclusions regarding sufficiency of the
infrastructure necessitated by the proposed new cylinder management and
tracking requirements, as well as the time and costs associated with
its implementation and broad application across multiple industry
sectors; requiring thousands of businesses, including many small
businesses, to comply with extensive new obligations on extremely short
timelines. The commenter stated that EPA must use relevant data to
develop a reasonable estimate of the number of refrigerant cylinders
that these thousands of newly regulated entities will be required to
manage and track, stating that the assumption that ``4.5 million HFC
cylinders will be sold in the United States in 2025'' represents a
substantial underestimation that is not based on, and in fact fails to
consider, relevant and credible data in the Agency's possession,
including comments on the proposed 2021 NRC Ban and confidential sales
data provided to the Agency, as well as data from the United States
International Trade Commission. The commenter further stated that the
Agency's 4.5 million cylinder estimate only represents the number of
30-pound refrigerant cylinders used annually in the United States, and
this estimate does not include 15-pound cylinders, 50-pound cylinders,
or any other bulk refrigerant containers that would be subject to the
proposed rule's cylinder management and tracking requirements, noting
that without a reasonable estimate of the universe of refrigerant
cylinders potentially impacted, EPA cannot assess small business
impacts as required by the Regulatory Flexibility Act (RFA) or the cost
of the proposed rule's recordkeeping and reporting requirements under
the Paperwork Reduction Act (PRA). The commenter urged EPA reevaluate
its conclusions in light of the data provided to the Agency throughout
the course of multiple cylinder-related rulemakings and to reconsider
the cylinder management. The commenter stated that proposed
requirements do not appear to be based on a complete and legally
sufficient analysis of the best available data, and that EPA may have
overstated the environmental benefits of the proposed cylinder
management.
Response: EPA acknowledges this comment and reads it as referring
to the proposed requirements for container tracking as well as the
requirement to remove heels from disposable cylinders. In response to
the former, EPA is not finalizing cylinder tracking requirements in
this rule. In response to comments on managing the removal of heels
from disposable cylinders, please see the response above related to
additional considerations and estimates in the Economic Impact and
Benefit TSD.
EPA also responds that the requirements for removing the heels from
disposable cylinders before they are discarded are being modified from
the proposal, based on comments received on the proposal and further
considerations. EPA is finalizing additional flexibilities, including
allowing the heels of disposable cylinders to be removed at different
points in the reverse supply chain (e.g., by a final processor or a
wholesaler/distributor). Further, EPA is delaying the compliance date
for these requirements from January 1, 2025, to January 1, 2028, to
allow for additional time for industry to become familiar with the
regulations and secure necessary connections within the reverse supply
chain. EPA is also establishing an alternative approach to allow
disposable cylinders that are evacuated to a specified level of vacuum
to be discarded with an accompanying certification. EPA provides
additional details on these requirements in responses throughout this
section. Overall, these modifications provide additional flexibilities
as compared to the proposed requirements while also helping to achieve
the purposes identified in subsection (h) of the AIM Act.
With respect to the number of cylinders that the requirement to
remove heels covers, EPA notes that it has used data from the commenter
to perform a sensitivity analysis. See the Economic Impact and Benefits
TSD for additional details.
Comment: EPA received some comments related to the data collection
and tracking of transporting disposable cylinders and the associate
heel recovery. Some commenters were opposed and stated that the
proposed tracking and data collection requirements were burdensome.
Another commenter expressed concerns that the effectiveness of
compliance with the requirements to remove heels from disposable
cylinders would be lacking absent adequate tracking provisions. Another
commenter expressed support for tracking the cylinders until they reach
a reclaimer or fire suppressant recycler.
Response: EPA acknowledges these comments. The Agency is not
finalizing, as part of this rulemaking under the AIM Act, the proposed
provisions for container tracking of HFCs that could be used in the
servicing, repair, and/or installation of refrigerant-containing or
fire suppression equipment. However, as discussed in this section, the
Agency is finalizing provisions to ensure that used disposable
cylinders are properly handled and the removed heels are sent to
reclaimers. EPA is including flexibilities, as discussed throughout
this section, for the removal of the heel from used disposable
cylinders. EPA understands that these flexibilities are, in some cases,
consistent with current practices for the management of used disposable
cylinders to remove the heel, such that entities in the reverse supply
chain are capable of removing the heel and consolidating to a recovery
cylinder to send to reclaimers. EPA is also requiring that heels
removed from used disposable cylinders must be sent to reclaimers,
where the used disposable cylinder is not already being directly sent
to a reclaimer. Further, the Agency is establishing an alternate
approach allowing certified technicians to certify that a disposable
cylinder has been evacuated to a specified level of vacuum and the
cylinder can be discarded with no further processing.
Comment: Multiple commenters voiced concerns regarding the ability
and capacity of reclaimers to process the influx of many disposable
cylinders and remove heels. One commenter requested that EPA consider
allowing reclaimers to use a batch method of removing the heels from
disposable cylinders and report as a net amount, rather than per
cylinder. A couple of commenters noted
[[Page 82816]]
that reclaimers may not be prepared and have the capacity to handle the
volume of incoming disposable cylinders and that the compliance
timeline is inadequate. The commenters stated the need for additional
storage space for the cylinders and potential investments in transfer,
recovery, and crushing and disposal equipment. Some commenters further
stated that the associated costs of these types of equipment may
ultimately be passed down in the form of charging to accept disposable
cylinders. Another commenter stated that the Agency confounded the
distinct actions of removal and reclamation, and this requirement to be
responsible for removal and reclaiming the material would be burdensome
on reclaimers.
One commenter further expressed uncertainty as to whether EPA-
certified refrigerant reclaimers have adequate capacity to manage the
volume of HFCs that would be required to be reclaimed or whether that
capacity can sufficiently increase within the proposed compliance
deadline. The commenter cited that the Agency's solicitation of
comments on whether to allow recovery by parties other than certified
reclaimers suggests its concern that the current 63 EPA-certified
refrigerant reclaimers may not be able to manage timely HFC recovery
from 4.5 million estimated cylinders. The commenter further stated that
the actual domestic refrigerant cylinder market of nearly twice this
size will surely create a massive refrigerant recovery bottleneck that
will cascade throughout the refrigeration and HVACR supply chain and
could undermine the purpose and intent of the proposed rule.
Response: EPA acknowledges the comments related to logistical
concerns with handling the influx of disposable cylinders with the
proposed requirements. In response to comments stating concerns about
reclaimers having capacity, storage space, and other resources to
process the influx of disposable cylinders, the Agency notes it is
finalizing modifications to the provisions for handling of used
disposable cylinders. As explained in this section, EPA is finalizing
flexibilities to these requirements that would achieve the goals of
subsection (h) of the AIM Act. These flexibilities would also help
alleviate the number of disposable cylinders that would be sent
directly to a reclaimer to have the heel removed and processed. Among
these provisions, EPA is finalizing that used disposable cylinders can
be sent to a final processor or back through the reverse supply chain
to have the heels removed and consolidated. EPA recognizes these
current channels in the reverse supply chain or the waste distribution
chain that make for effective processing of used disposable cylinders
and removal of heels for ultimate reclamation or, for fire
suppressants, recycling. EPA anticipates that this would reduce the
number of individual, used disposable cylinders that a reclaimer
receives for heel removal and processing. Further, the Agency is
establishing a compliance date of January 1, 2028, as compared to
January 1, 2025, in the proposed rule to allow the industry to prepare
effectively.
EPA acknowledges there is a value in disposable cylinders and
estimates those benefits in the Economic Impact and Benefits TSD. This
analysis includes estimated costs for transportation, assumed by truck,
as compared to business-as-usual practices. Whether a wholesaler
chooses to inventory disposable cylinders that are returned, remove the
heels and consolidate them, or expeditiously send them to locations
allowed under the final rule, is a business decision; therefore, any
value lost due to occupying inventory space is not assessed as doing so
is not a requirement in this final rule and EPA does not have
information on how to place a value or cost estimate on such inventory
space.
In response to the comment about processing removed heels in a
batch method as compared to the single cylinder level, EPA views this
comment as related to the proposed container tracking requirements. As
explained in section I.B, the Agency, at this time, is not taking final
action on container tracking requirements, and this rulemaking does not
establish reporting requirements for the amount of heels removed by
reclaimers at the single cylinder level. Additionally, reclaimers who
receive disposable cylinders and remove the heels are not required to
record data for each single cylinder received. Reclaimers will continue
to report their totals of refrigerant received or reclaimed when
reporting under the CAA section 608 programs (40 CFR part 82, subpart
F) and the HFC Allocation Program (40 CFR part 84, subpart A).
EPA acknowledges comments related to current reclaimer capacity and
meeting supply of reclaimed refrigerants as required to support
provisions in this rulemaking. EPA addresses comments related to
reclaimed refrigerant supply in section IV.E.2 of this rulemaking.
Regarding comments related to uncertainty of reclaimers to process the
influx of a volume of HFCs being sourced from heels of disposable
cylinders, EPA responds that comments to the proposed rule describe
that reclaimers have the capacity to process the volume of HFCs. EPA is
aware of reclaimers expanding capacity volume-wise and increasing
capacity of advanced separation technologies to effectively process
additional material. EPA notes that comments related to uncertainty of
reclaimers' capacity received in this rulemaking were related to
processing the influx of disposable cylinders and removing heels. The
additional flexibilities being finalized related to the handling of
used disposable cylinders help to address these concerns (as discussed
in responses in this section).
Comment: EPA received multiple comments related to the distribution
chains that would support the movement of disposable cylinders to
reclaimers. Some commenters stated that the distribution chains for
returning recovered materials, as EPA alluded to in the proposed rule,
may have difficulty accommodating the increase in magnitude of
disposable cylinders per the proposed requirements, since these
distribution chains are typically used more for return of recovery
cylinders. Other commenters noted that the existing distribution chains
could be used to support the movement of disposable cylinders per the
proposed requirements. One commenter stated that in current practices,
contractors may already be consolidating recovered material into a
recovery cylinder (including heels) before taking them to a
distributor. Another commenter stated that there are multiple avenues
for refrigerant recovery from cylinders, such as current practices to
send disposable cylinders to reclaimers or wholesale distribution-
operated cylinder recycling programs, and allowing contractors to
recover the remaining refrigerant and be compensated for sending the
recovered refrigerant to a certified reclaimer. The commenter noted
that while programs for returning disposable cylinders to reclaimers
exist, this method for recovery of the heel may be inefficient and rely
on proximity to a reclaimer.
EPA received many comments on alternate approaches that shared
features with the alternate approaches described in the proposed rule,
one of which would allow final processors (e.g., landfill operators,
scrap metal recyclers) to be the entity to recover heels from
disposable cylinders prior to discarding, and another of which would
have allowed more than just reclaimers to recover the heel, while still
requiring that all the removed material be sent to reclaimers for
further processing. Many commenters were supportive of aspects of the
alternate approach in
[[Page 82817]]
combination with the proposed requirements. One commenter stated that
EPA should consider alternatives to send near-empty disposable
cylinders to a local appliance disposal outlet in addition to sending
directly to a reclaimer. Another commenter supported the implementation
of similar regulations to those for small appliance disposal under CAA
section 608, such that a final processor is responsible for ensuring
the remaining refrigerant is removed from a cylinder either by them or
prior to them receiving the cylinder. Another commenter stated they
supported alternative approaches to allowing others in the supply chain
to remove heels from disposable cylinders provided the entities have
associated reporting requirements for total amounts recovered annually.
The commenter further noted that the benefits of the alternate approach
could help address any increase in transportation emissions or costs
related to shipping disposable cylinders. One commenter stated that the
alternate approach matches practices that are already occurring
effectively where disposable cylinders are collected by recycling
companies, distributors, and appliance recyclers. The commenter further
stated that there may be cases where entities send disposable cylinders
that contained a unique refrigerant to reclaimers ``as is'' rather than
recovering and mixing refrigerants in a common recovery cylinder.
Another commenter stated that another consideration could be for the
cylinders to be sent back to the refrigerant company for proper
disposal or recycling.
One commenter stated that the alternate approach may also provide
benefits for supermarkets, which may not have direct relationships with
reclaimers, but rather rely on third-party service providers. The
commenter noted the importance of using the existing channels to send
disposable cylinders to distributers or suppliers to then be sent to a
final processor or reclaimer.
Some commenters discussed other approaches to be considered for the
recovery of heels from disposable cylinders. One commenter supported
provisions to recover heels from disposable cylinders in general, but
stated that certified technicians should be trained and able to recover
heels from disposable cylinders before disposal of the cylinders. The
commenter noted the efficiency and reduced transportation burden
associated with allowing certified technicians or others (e.g.,
distributors) to remove and aggregate heels to a recovery cylinder for
shipping, rather than shipping many individual disposable cylinders.
The commenter stated that EPA should at least conduct a lifecycle
analysis of net GHG emissions in various scenarios to understand their
environmental impacts. Other commenters stated that EPA could allow any
certified technician to recover heels prior to disposal of the
cylinder. One commenter also suggested considering associated
recordkeeping that could be subject to auditing. The commenter
described an approach that would involve contractors and technicians
recovering the heels from disposable cylinders prior to disposal and
includes suggestions for establishing programs for cylinder returns to
wholesalers or distributers. The commenter stated that the approach
described could be made less burdensome by extending the program to
contractors and disposable cylinder users, in addition to certified
technicians, and coordinating with wholesalers, reclaimers, and/or
refrigerant suppliers.
One commenter was opposed to the approach to allow a final
processor to recover the heel from disposable cylinders, noting this
practice could lead to venting remaining heels by metal recyclers or
waste disposal facilities. Another commenter, while not opposing the
alternate approach, stated it is advantageous to have the disposable
cylinders sent to reclaimers, enabling them to promptly remove and
reclaim the heel and allowing EPA to gauge success through required
reporting.
One commenter stated that establishing collection points,
especially in areas with few EPA-certified reclaimers, could help
mitigate concerns with costs and logistics, though there may still be
some associated costs. Another commenter stated that requiring
disposable cylinders to be sent to EPA-certified reclaimers or fire
suppressant recyclers would compete for truck space with shipping
recovery cylinders that are full of recovered material. Another
commenter stated that the logistics and costs of being able to first
aggregate heels from disposable cylinders into a larger recovery
cylinder would be more efficient, and transporting one larger recovery
cylinder would greatly reduce transport of many disposable cylinders.
Response: EPA acknowledges that the current reverse supply chain
and waste distribution channels are varied. Many distribution channels
for reclaimers are generally more limited to the processing of recovery
cylinders to reclaimers, though not exclusively. EPA is also aware that
many of these same channels are also currently being used for the
transport of disposable cylinders with a remaining heel. As commenters
noted, the current channels are effective, as many contractors or
technicians may rely on sending used disposable cylinders to a
wholesaler or distributer that consolidates and then sends them for
further processing to a reclaimer. EPA is finalizing that disposable
cylinders with a heel may continue to be sent through these channels
with their intermediate steps to ultimately reach a reclaimer, such as
through distributors or wholesalers. EPA recognizes that these current
practices can be effective and allowing their continued use for
processing of used disposable cylinders provides flexibilities to
manage the volume of disposable cylinders being transported for
recovery of the heel. The Agency notes that it may be appropriate for
the distributor or wholesaler to be the entity that recovers and
consolidates the heels from disposable cylinders, recognizing the
improved logistics of consolidating heels to a single recovery
cylinder. Where this practice may be occurring, EPA anticipates that
the distributor or wholesaler has demonstrated the capability to remove
all of the heel from the disposable cylinder prior to discarding. EPA
expects this is reasonable, as commenters have stated this is a common
practice that is currently occurring for the processing of a used
disposable cylinder. Further, EPA anticipates that distributors or
wholesalers that are performing this practice recognize the value in
the removed heel that can be sent to a reclaimer.
In this action, EPA is adopting portions of the alternative
approach; specifically, EPA is finalizing an option for used disposable
cylinders to be sent to final processors (e.g., landfill operators,
scrap metal recyclers, etc.) for removal of the heel. As noted earlier
in this response, EPA is also finalizing that the reverse supply chain
may be utilized for the transport of used disposable cylinders to have
the heel removed (e.g., sent to a distributor or wholesaler capable of
removing the heel). EPA is establishing requirements that heels removed
by final processors or distributors/wholesalers must be sent to a
reclaimer or fire suppressant recycler. The added flexibilities should
allow those with used disposable cylinders to have additional options
for the proper handling of such cylinders. In general, the Agency
anticipates that the added flexibility will provide access to discard
used disposable cylinders at locations in closer proximity to
contractors and
[[Page 82818]]
technicians, reducing transportation \136\ costs and emissions
associated with disposing the used cylinders. Final processors may
already be receiving small appliances (e.g., less than five pounds of
refrigerant) and consistent with the regulations promulgated under CAA
section 608, may already be recovering these refrigerants per those
requirements and sending them for reclamation per those requirements.
Further, where used disposable cylinders have been sent for processing
by a final processor or a distributor or wholesaler, the removed heels
would be consolidated into a common recovery cylinder. As commenters
stated, this practice could help to improve logistics related to truck
space for shipping materials to a reclaimer or fire suppressant
recycler for further processing. Therefore, EPA is finalizing these
flexibilities for sending the disposable cylinders to the reclaimers,
which are intended to result in the proper removal of the heel and to
ensure that the HFCs from removed heels are sent to reclaimers or fire
suppressant recyclers for further processing and reuse.
---------------------------------------------------------------------------
\136\ EPA addressed transportation related costs in the draft
Economic Impact and Benefits TSD and further addresses such costs in
the Economic Impact and Benefits TSD accompanying this final rule.
---------------------------------------------------------------------------
EPA acknowledges other comments that suggest that a certified
technician be allowed to remove the heel from disposable cylinders. As
described more fully in a response later in this section, EPA is
finalizing an alternate approach where certified technicians may
certify that a heel has been removed from a disposable cylinder to a
vacuum level of 15 in-Hg, relative to standard atmospheric pressure of
29.9 in-Hg. In this case, a used disposable cylinder certified to have
been evacuated to a vacuum level of 15 in-Hg may be discarded to a
final processor without further processing. This alternate approach
being finalized by the Agency helps to ensure the contents of
disposable cylinders are effectively used and the remaining heel is
negligible before the cylinder is discarded.
EPA acknowledges the comments suggesting establishment of
collection points for used disposable cylinders to promote further
organization for the recovery of heels. The Agency agrees that
collection points could be an effective avenue for facilitating the
return of disposable cylinders to entities capable of properly removing
the heel and disposing of them. EPA is aware of reclaimers that offer
services such as collection sites for returning recovered refrigerant,
which may include returning used disposable cylinders. The Agency sees
these collection facilities and practices as appropriate avenues for
discarding cylinders and proper heel removal, so long as they are in
compliance with all regulatory requirements, including those being
established in this rulemaking.
Finally, EPA is establishing a compliance date of January 1, 2028,
which is three years later than the proposed compliance date. The later
compliance date will allow additional time for the distribution
networks to be established and allow industry to set up necessary
contracts and logistics for the transport of used disposable cylinders
and the recovery of the remaining heels.
Comment: Many commenters expressed concerns regarding the logistics
related to the proposed requirements and consideration of the net
benefits (costs and GHGs emissions avoided) when comparing the
potential costs and emissions related to transporting the disposable
cylinders to reclaimers or fire suppressant recyclers. Some commenters
stated that the transportation of the disposable cylinders would incur
costs and require complex logistics. The commenters stated that the
contractors or technicians using the disposable cylinders may not be
located near an EPA-certified reclaimer or a fire suppressant recycler
and would be required to travel further than they normally do to
dispose of a used cylinder. Further, the commenters stated that the
logistics of transporting and handling the used disposable cylinders
would require additional labor and coordinating with reclaimers or fire
suppressant recyclers within their operating hours. One commenter noted
that labor shortages are present in the industry and there may be a
challenge in these requirements competing with other revenue-generating
activities. Another commenter stated that shipping disposable cylinders
to reclaimers is inefficient and noted that others in the supply chain
are also capable of removing the heel properly per AHRI Guideline Q.
Other commenters stated that the emissions associated with transporting
disposable cylinders for heel recovery may exceed those avoided by
recovering the heel, and the associated costs may outweigh the value of
the recovered refrigerant. Further, other commenters stated that
associated costs for collecting disposable cylinders could end up
getting passed on to contractors or technicians and then further passed
on to customers. Additional commenters expressed concerns about
wholesalers' storage space for used disposable cylinders that they
would accept to then be sent to a reclaimer.
Response: EPA acknowledges these comments on the logistics of this
provision and responds that the Agency is finalizing modifications that
would allow for additional flexibilities for proper handling of used
disposable cylinders. The final rule allows for additional avenues for
the transport of used disposable cylinders and the removal of the heel;
for example, as described in this section, sending used disposable
cylinders to a final processor or through the reverse supply chain
(e.g., distributors or wholesalers) for the removal of the heel to be
sent to a reclaimer or fire suppressant recycler. EPA acknowledges the
importance of the reverse supply chain and waste distribution chains
and the capability of distributors and wholesalers to remove heels or
otherwise facilitate the transport of the disposable cylinders to a
reclaimer, fire suppressant recycler, or final processor for proper
heel recovery and cylinder disposal. These additional avenues provide
flexibility and improved logistics for returning disposable cylinders.
The Economic Impact and Benefits TSD accompanying this rulemaking
provides additional detail on costs and considerations of logistics
described in these comments. While comments noted that a person may
have limited access to returning a disposable cylinder to a reclaimer
or fire suppressant recycler as proposed, it is likely that person
would have access to a distributor, wholesaler, or final processor
where they can transport the disposable cylinder. Further, this
additional accessibility includes the consideration of proximity and
other logistics, such as cutting down on the overall number of
disposable cylinders that would be in transit. These considerations
would reduce the overall transportation distance needed to bring these
disposable cylinders to proper disposal and the number of trips, by
allowing the consolidation of heels by other entities in the
distribution chain. Thus, overall emissions associated with
transportation of the disposable cylinders would be reduced. Further,
EPA is aware that some reclaimers operate collection sites or offer
services to pick up recovered refrigerant, which could be an additional
avenue that provides a closer cylinder return option for returning
disposable cylinders to reclaimers.
Allowing the use of the typical avenues for processing disposable
cylinders (e.g., through distributors or wholesalers) and the inclusion
of the alternate approach to allow final processors to recover heels
and dispose
[[Page 82819]]
cylinders would also alleviate concerns related to labor and
coordination with reclaimers to accept cylinders. These flexibilities
would make use of existing avenues to transport and process disposable
cylinders and remove heels as they are sent along to reclaimers or fire
suppressant recyclers for further reprocessing. EPA recognizes that
factors such as available labor will be a consideration for covered
entities as they decide among the expanded available compliance options
on removal of heels and proper discarding of disposable cylinders. EPA
is aware that reclaimers often buy back recovered refrigerant, and the
Agency expects that this practice would also be relevant to returned
disposable cylinders with remaining heels or with heels that have been
recovered and consolidated from disposable cylinders. Others may choose
to send cylinders to final disposal entities. Reclaimers may choose to
expand the use of collection points or work with distributors. The
final rule provides additional flexibility while still increasing the
removal of heels from disposable cylinders for further reclamation.
Related to storage of flammable refrigerants at wholesaler
facilities, as discussed in section IV.H, EPA is finalizing
requirements that allow final processors or those in the reverse supply
chain (e.g., distributors or wholesalers) to manage ignitable spent
refrigerant removed from disposable cylinders under the finalized RCRA
alternative standards, which include emergency preparedness and
response requirements to address the risk of fire from the storage of
flammable refrigerants. As part of compliance with the RCRA alternative
standards, final processors or those in the reverse supply chain (e.g.,
distributors or wholesalers) that remove heels of ignitable spent
refrigerants are required to send the materials to an EPA-certified
reclaimer that is in compliance with the RCRA alternative standards.
The criteria of the RCRA alternative standards are such that handling
of these used cylinders is done so properly and safely.
Comment: One commenter recommended the Agency withdraw the proposed
requirements for disposable cylinders and consider re-proposing in a
separate action.
Response: EPA responds that the Agency is finalizing these
requirements with a later compliance date and increased flexibility for
achieving the outcome. The Agency notes that recovering the heels from
disposable cylinders is an important opportunity to help achieve the
guiding goals of subsection (h) to minimize releases and maximize
reclaim. The heels in disposable cylinders provide an important source
of recovered refrigerant that will be necessary to help support the
supply of reclaimed HFCs as the phasedown progresses and the required
uses of reclaimed HFCs per this rulemaking become effective.
Comment: EPA received multiple comments about the proposed
compliance dates for these requirements. Some commenters stated that
the proposed compliance date of January 1, 2025, would be difficult to
meet. One commenter stated that the compliance date should be no
earlier than January 1, 2028, due to supply chain constraints and new
processes and equipment needed in the supply chain. Another commenter
stated that contracts that are already in place would need to be
revised or established per this provision, but could not be done so
until the regulation is final. Setting up these contracts would take
longer than the anticipated time between the regulation being finalized
and the proposed compliance date of January 1, 2025. The commenter
suggested that the compliance date be 18 months from the final
regulation being published in the Federal Register. Another commenter
stated that these provisions should not be in effect until reclaimers
are able to sufficiently secure the resources (e.g., recovery
equipment, storage/warehouse space) and logistics (e.g., agreements
with scrap metal recyclers to accept the empty disposable cylinders)
needed for implementation. The commenter stated that this is not
practical in terms of the proposed compliance date.
Response: EPA acknowledges these comments and considerations.
Consistent with commenters' suggestions, the Agency is finalizing a
later compliance date. The Agency is establishing a compliance date of
January 1, 2028, with these logistical and implementation challenges in
mind. The delayed compliance date should allow those affected in the
transport of disposable cylinders and the reclaimers and fire
suppressant recyclers that receive the cylinders to develop the
infrastructure and business relationships needed to comply with the
more flexible approach in the final rule.
Comment: One commenter expressed support for the Agency's proposal
that the remaining heel in disposable cylinders not be treated as
virgin material, noting that residual material may deviate from
specifications and that recovered residual material should not be
exempt from any current reclaimer reporting requirements. Another
commenter stated that the remaining heel seems as though it would still
be virgin refrigerant. The commenter stated that a reclaimer could
recover and verify the condition of the refrigerant. Further, the
commenter stated that the recovered heels could be an additional stock
of virgin material available to the market.
Response: EPA acknowledges these comments and, as explained in
section IV.A.2, is revising the definition of ``virgin regulated
substance.'' EPA is not including an exclusion to the definition for
recovered heels from containers. The Agency is, however, finalizing to
not consider recovered heels towards the total virgin percentage in
reclaimed HFCs, as described in section IV.E.2. As EPA understands, the
removed heels from disposable cylinders may be recovered into recovery
cylinders for consolidation. While best practices would dictate that
the one type of HFC or HFC blend is recovered into a recovery cylinder,
this may not always be the case. Removed heels may end up in a recovery
cylinder containing one or more other substances. In the case
reclaimers are the ones to remove the heels from used disposable
cylinders, they will typically reprocess the recovered heels to ensure
the recovered materials are brought to the required purity
specifications for reclaimed refrigerants.
Further, the Agency notes that material recovered and reclaimed
from disposable cylinders must be reported under current reclaimer
reporting requirements (i.e., reporting per 40 CFR part 82, subpart F
and 40 CFR part 84, subpart A). Heels directly removed by reclaimers,
but not yet reclaimed, are considered as material received and should
be reported as such under current reporting for material received by
reclaimers. Likewise, for fire suppressant recyclers, any heels
directly recovered, but not yet recycled, should be reported as
recovered material per the reporting requirements established in this
rulemaking (see section IV.F.2.f).
Comment: One commenter stated that a ban on disposable cylinders
would have been more effective for reducing releases and maximizing the
reclaim of regulated substances. Another commenter stated that EPA
improperly alluded to having the statutory authority to reinstate a ban
on non-refillable cylinders by stating in the proposed rule that the
Agency is ``not at this time proposing'' to ban non-refillable
cylinders.
Response: EPA acknowledges these comments. The Agency did not
propose to ban the use of disposable cylinders in this rulemaking and
reiterates that it is not establishing such a ban in this final rule.
The statement in the proposed rule
[[Page 82820]]
that EPA was ``not at this time proposing'' to establish a prohibition
like the one at issue in HARDI v. EPA, 71 F.4th 59, 68 (D.C. Cir. 2023)
was intended to describe the Agency action under consideration and how
it differed from the prohibition in the Allocation Framework Rule. In
the proposal, the Agency acknowledged that the prohibition had been
vacated in the HARDI decision, as the court found that EPA had not
cited adequate authority to support it. Further, as noted in response
to a comment below, the Agency is acting consistent with the HARDI
decision. Because the Agency did not propose and is not finalizing such
a ban as part of this action, it need not address whether it would have
authority to do so here. EPA notes that the provisions to require
removal and reclaim of heels from disposable cylinders are effective to
help mitigate the release of the remaining heel to the atmosphere while
providing a source of recovered refrigerant to be available for
reclamation.
Comment: One commenter suggested that the requirements for
disposable cylinders be expanded to refillable cylinders as well. The
commenter noted potential issues of not requiring that refillable
cylinders be handled by reclaimers or have required heel recovery,
which included potential venting or discarding of the refillable
cylinder improperly.
Response: EPA acknowledges this comment and understands the value
of ensuring removal of the refrigerant left in heels of refillable
cylinders. EPA notes that the risk of venting heels and improper
management after use is more common to disposable cylinders, given they
are discarded and not reused. Refillable cylinders are refilled and
reused, so a requirement to remove refrigerant heels is unnecessary if
the cylinder is being refilled with the same refrigerant. In cases
where the refillable cylinder would be filled with a different
refrigerant, the remaining refrigerant would need to be properly
removed to ensure the cylinder was completely emptied before refilling
with a different refrigerant, which EPA understands is a standard
practice to avoid mixing refrigerants in a refillable cylinder. Thus,
EPA notes these requirements are more appropriate for disposable
cylinders.
Comment: One commenter mentioned that the proposal was unclear
about who is responsible for sending the disposable cylinder to a
reclaimer and asked if it was the equipment owner/operator or a
contractor.
Response: EPA is establishing requirements based on the cylinders
that have been used in the servicing, repair, or installation of
refrigerant-containing equipment or fire suppression equipment.
Ultimately, the responsibility would likely fall on the person using or
managing the disposable cylinder of refrigerant or fire suppressant. In
most cases, the technician or contractor performing the process,
practice, or activity related to servicing, repair, or installation is
the user of the disposable cylinder. In other cases, the contractor or
technician may report to the location (e.g., a supermarket) that
manages its own supply of refrigerant in disposable cylinders. In this
case, the responsibility of sending the disposable cylinder may fall on
the equipment owner/operator; however, they may arrange agreements with
the contractor or technician to be the person sending the disposable
cylinder. The logistics of sending the disposable cylinder may depend
on the different practices that are used. In the case one of these
entities has a working business relationship with a reclaimer, it would
be feasible for that entity to manage sending the disposable cylinders
to a reclaimer. In other cases, it may be more logistical to have the
person who purchases the refrigerant be responsible for the return of
the disposable cylinder if they typically are already returning
disposable cylinders to their wholesaler or distributor, who would then
be responsible for returning the removed heels or disposable cylinders
to a reclaimer. Finally, as described above, EPA is finalizing, in
conjunction, aspects of the alternate approach to allow disposable
cylinders to be sent to final processors for the heel removal, and EPA
is also finalizing that used disposable cylinders may be transported
through the reverse supply chain (e.g., a distributor or a wholesaler)
for the removal of the heel. A contractor, technician, or an equipment
owner/operator may wish to establish agreements with a final processor
or utilize any existing business relationships they have with
distributors or wholesalers to manage the disposable cylinders for heel
removal and ultimately sending the removed heels to reclaimers or fire
suppressant recyclers.
Comment: One commenter stated that when recovery machines are used
for refrigerants, the refrigerant lubricates the machines; however,
this lubrication will not occur in a machine strictly doing heel
removal, and such a machine will have a shorter lifespan.
Response: EPA is aware that recovery machines are used in practice
to remove refrigerant from equipment and can be used to remove heels
from disposable cylinders. EPA assumes that a recovery machine will be
used for each of these practices, and not strictly one or the other.
Further, the Agency anticipates that recovery machines will have proper
maintenance to ensure that they are running efficiently and are
properly operated throughout their useful lifetime.
Comment: One commenter stated that the proposed regulatory text
contained conflicting language about the ownership of recovered
refrigerant, surplus refrigerant, and disposable containers with heels.
The commenter states that the language should be clarified to not
exclude companies important to the supply chain that purchase or accept
recovered gas or salvage and recycling companies.
Response: EPA acknowledges this comment. The Agency did not intend
to propose to limit so that only one avenue (i.e., sending used
disposable cylinders to reclaimers or fire suppressant recyclers) would
be available to send disposable cylinders to reclaimers or fire
suppressant recyclers. EPA is aware of and has reviewed comments on the
significance of other components of the reverse supply chain (e.g.,
distributors or wholesalers) to the transport of disposable cylinders
to reclaimers and fire suppressant recyclers. The Agency also notes
that it is finalizing provisions to allow the used disposable cylinders
to be sent to a final processor or through the reverse supply chain for
removal of the heel and ultimately sending the recovered material to a
reclaimer.
Comment: Two commenters stated that the Agency should define when a
cylinder is considered empty and is considered to no longer contain a
regulated substance, which could reduce the need to send all disposable
cylinders for heel removal. One such commenter suggested that a
disposable cylinder could be considered empty when the cylinder
approaches atmospheric pressure, as consistent with RCRA regulations;
and that the pressure of the cylinder would be documented. Further, the
commenter stated that EPA should state in the regulation how a
reclaimer would determine that all remaining contents of a disposable
cylinder have been removed, and if there is a specified pressure level
that should be met. The other commenter stated that EPA must be clear
by what is meant to remove all substances from a cylinder, noting
current requirements for removing refrigerants from equipment to
acceptable levels.
Other commenters suggested requiring that heels from disposable
cylinders be evacuated to a level of a minimum 15 in-Hg. One commenter
[[Page 82821]]
stated that EPA could require records be kept for anyone evacuating a
cylinder, including quantity of cylinders evacuated and disposed of by
refrigerant type.
Response: EPA acknowledges this comment and understands that the
industry is seeking clarity on a finite specification of the required
level of heel removal from a disposable cylinder. EPA notes that there
are longstanding requirements under 40 CFR part 82, subpart F, for
evacuation levels of refrigerants from appliances using certified
recovery machines. These requirements include evacuating to various
levels of vacuum on appliances depending on the types of appliances and
range from 0 to 15 in-Hg. EPA is also aware of AHRI Guideline Q on
recovery and proper recycling of refrigerant cylinders.\137\ AHRI
Guideline Q defines an empty state for disposable cylinders as being
evacuated to a vacuum of 15 in-Hg (relative to a standard atmospheric
pressure of 29.9 in-Hg). EPA is not establishing a specified level of
evacuation for disposable cylinders in this rulemaking. However, EPA is
establishing an alternate compliance option that makes use of the
evacuation level described in AHRI Guideline Q. Where a used disposable
cylinder is evacuated to a level of 15 in-Hg (relative to a standard
atmospheric pressure of 29.9 in-Hg), a person may discard of the
cylinder, and the cylinder does not require further processing or need
to be sent to a reclaimer or fire suppressant recycler, if they provide
a certification statement during transport to a final processor. EPA is
aware that the certified recovery machines are capable of achieving the
level of vacuum of 15 in-Hg to remove the heels from disposable
cylinders. Where a cylinder is not evacuated to 15 in-Hg or a
certification is not provided, the requirements for sending a
disposable cylinder for heel removal to a reclaimer, fire suppressant
recycler, or final processor or through the reverse supply chain apply.
In addition, in the case of disposable cylinders containing ignitable
refrigerant, such cylinders must meet the RCRA definition of empty
container \138\ in 40 CFR 261.7 or be managed under the applicable RCRA
standards. EPA is assessing these comments and considering a separate
rulemaking as related to comments requested in the ANPRM for
considerations for technicians.
---------------------------------------------------------------------------
\137\ Air-Conditioning, Heating, and Refrigeration Institute,
Guideline Q: Content Recovery & Proper Recycling of Refrigerant
Cylinders, 2016. Available at: https://www.ahrinet.org/system/files/2023-06/AHRI_Guideline_Q_2016_0.pdf.
\138\ EPA clarifies that under 40 CFR 261.7(b)(2), a container
that has held a hazardous waste that is a compressed gas is empty
when the pressure in the container approaches atmospheric. Where a
disposable cylinder that contained a refrigerant that exhibits the
hazardous characteristic of ignitability under 40 CFR 261.21
(generally expected to include all flammable refrigerants; i.e.,
Class 2, 2l, and 3) is being discarded using the alternate
compliance method, evacuating to a vacuum of 15-in Hg would also
meet the requirements for an ``empty container'' under 40 CFR
261.7(b)(2), since the vacuum of 15 in-Hg would be an evacuation
level beyond atmospheric pressure.
---------------------------------------------------------------------------
Comment: While emphasizing HARDI v. EPA, one commenter expressed
concern that EPA has yet to amend the CFR in accordance with the D.C.
Circuit's binding vacatur, and indicated the absence of any conforming
revisions to the CFR creates significant uncertainty throughout the
industry.
Response: EPA responds that any action in response to HARDI v. EPA
is outside the scope of this rulemaking, and thus comments related to
such action require no response. For purposes of public awareness, the
Agency notes that it is acting consistent with the HARDI decision and
is not implementing or enforcing the QR code and tracking requirements
for all cylinders containing HFCs found at 40 CFR 84.23. EPA has
prepared a rulemaking (89 FR 73588, September 11, 2024) to remove this
requirement from the CFR.
Comment: One commenter provided alternate considerations to address
concerns of heel emissions from disposable cylinders. The commenter
described their experience in cylinder design and adaptation for class
A2L refrigerants, noting a resealable pressure relief valve and left-
handed threads to avoid inadvertent connection to a refrigerant with
flammability characteristics. Further, the commenter proposed equipping
disposable cylinders with a resealable pressure relief valve to prevent
fugitive emissions. The commenter also stated that disposable cylinders
could be redesigned with a redundant pressure-tight seal to prevent
venting by using a self-sealing valve that controls gas flow and could
prevent venting. The self-sealing valve would be similar to that for
small cans of automotive refrigerant. The commenter also suggested
developing and deploying equipment for heel recovery and preparation of
disposable cylinders for disposal. The commenter states that it may be
possible to reduce venting of heels by making heel recovery and
cylinder recovery easier and less time consuming. Beyond the cylinders,
the commenter suggested other means of addressing venting heels,
including the development of a disposable cylinder buyback program,
which the commenter states could be more effective than the proposed
requirements if left to be led by industry. The commenter also stated
options such as heel recovery and recycling programs internal to
companies, contractor-led programs where cylinders are evacuated to 15
in-Hg prior to disposal, or programs where refrigerant producers and
packagers establish a seller take-back administered at local levels by
wholesale customers. Finally, the commenter recommended that EPA
consider labeling for disposable cylinders that includes a warning and
disposal instructions.
Other commenters suggested that the disposable cylinders could be
made of recyclable materials.
Response: The Agency appreciates the commenter's suggestions on
considerations for alternative cylinder designs to minimize emissions.
EPA intends to evaluate the information provided for any potential
future rulemakings. While materials for the disposable cylinders are
outside of the scope of this rulemaking, EPA notes that the cylinders
are made of steel, which can be recycled.
Regarding alternate considerations beyond cylinder design, EPA
appreciates these comments and suggestions. The Agency provided
responses to similar suggestions in comment responses in this section.
For example, EPA is addressing flexibilities of transporting used
disposable cylinders to reclaimers and fire suppressant recyclers by
including the alternate approach to allow final processors to accept
disposable cylinders and recover the heel and establishing that the
recovery of the heel may occur at other points in the reverse supply
chain (e.g., wholesalers and distributors). These entities are those
that are capable of removing the heel from disposable cylinders and
thus have access to the proper recovery machines. EPA also notes that
while establishing collection sites may improve logistics of returning
disposable cylinders for recovery of the heel, the Agency is not the
appropriate entity to establish such sites under a regulatory action.
Further, EPA is establishing an alternate approach considering an
evacuation level of 15 in-Hg, as described earlier in this section. The
Agency appreciates the suggestion to establish a labeling requirement
for disposable cylinders that would describe safe and proper disposal
of the cylinder. EPA is not at this time establishing such labeling
requirements, but may consider such a requirement in a future
rulemaking. The Agency also notes that the manufacturers of these
cylinders could
[[Page 82822]]
provide additional information on their labels if they choose to do so,
as long as that information is not counter to the requirements
established by this final rule.
2. Small Cans of Refrigerant
EPA did not propose that small cans \139\ of refrigerant with self-
sealing valves (i.e., those that qualify for exemption from the sales
restriction under 40 CFR 82.154(c)(ix)) must be sent to a reclaimer for
disposal after use. EPA did not receive adverse comments on this
proposed approach and is finalizing as proposed. EPA is accordingly not
applying the modified requirements for disposable cylinders as
described in section IV.G.1 to small cans of refrigerant. EPA edited
the regulatory text at section 84.116(g) to clarify that the
requirements do not apply to small cans.
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\139\ Small cans of refrigerant, that typically contain two
pounds or less of regulated substances, are commonly used by
individuals to service their own MVACs. This do-it-yourself (DIY)
servicing practice is unique to the MVAC subsector within the RACHP
sector.
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H. How is EPA establishing RCRA refrigerant recycling alternative
standards?
EPA is finalizing standards under 40 CFR part 266, subpart Q, that
apply instead of the full RCRA Subtitle C hazardous waste requirements
to certain ignitable spent refrigerants that are recycled for reuse.
The purpose of these standards is to help reduce emissions of ignitable
spent refrigerants to the lowest achievable level by maximizing the
recovery and safe recycling of such refrigerants during the service,
repair, and disposal of appliances.
1. Nomenclature Used in This Section
This section uses the term ``ignitable spent refrigerant'' to
describe the refrigerants that are potentially subject to RCRA
hazardous waste regulation under the current rules, and that will now
be subject to the applicable RCRA alternative standards for
refrigerants when recycled for reuse under the final rule.
``Ignitability'' is one of the RCRA hazardous waste characteristics and
is used to identify waste that may pose a risk to human health and the
environment due to its potential to cause fires if improperly
managed.\140\ The characteristic of ignitability is defined in 40 CFR
261.21. As discussed in more detail below in this section,
``ignitable'' is similar, but not identical, to the term ``flammable''
as used in ASHRAE Standard 34-2022. ``Spent'' is used in the same
context as ``spent material,'' which is defined in 40 CFR 261.1(c)(1)
as ``any material that has been used and as a result of contamination
can no longer serve the purpose for which it was produced without
processing.'' Thus, an ``ignitable spent refrigerant'' is a used
refrigerant that cannot be reused without first being cleaned, and that
exhibits the hazardous characteristic of ignitability per 40 CFR
261.21.
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\140\ EPA 1980, Background Document for the Hazardous Waste
Characteristic of Ignitability, May 2, 1980, p.7 https://www.epa.gov/hw/background-document-hazardous-waste-characteristic-ignitability.
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In addition, the terms ``reclaim'' and ``recycle'' have different
regulatory purposes and definitions under RCRA than under the CAA and
the AIM Act. Under RCRA, a material is ``reclaimed'' if it is processed
to recover a usable product, or if it is regenerated. Examples are
recovery of lead values from spent batteries and regeneration of spent
solvents (see 40 CFR 261.1(c)(4)). Reclamation is one of the four types
of ``recycling'' identified in 40 CFR 261.2(c) that can involve
management of a solid waste under RCRA. Materials that are solid waste
under RCRA are potentially subject to RCRA hazardous waste
requirements.
In contrast, under title VI of the CAA and its implementing
regulations, ``reclaim'' is a more precise term, requiring the
reclaimed refrigerant to meet regulatory specifications based on AHRI
Standard 700-2016, while ``recycle'' means to extract refrigerant from
an appliance and clean it for reuse in equipment of the same owner
without meeting all of the CAA requirements for reclamation. See those
definitions in 40 CFR 82.152. Similarly, under the AIM Act, ``reclaim;
reclamation'' is defined in subsection (b)(9) of the Act, and that
definition refers to the purity standards under AHRI Standard 700-2016
(or an appropriate successor standard adopted by EPA Administrator) and
the verification of purity using, at a minimum, the analytical
methodology described in that standard. ``Recycle'' is not defined in
the AIM Act.
To avoid confusion when discussing what regulatory requirements
apply to ignitable spent refrigerant, for the purposes of the final
RCRA alternative standards, EPA is using the term ``recycle for reuse''
as defined at 40 CFR 266.601 to mean to process an ignitable spent
refrigerant to remove contamination and prepare it to be used again.
This umbrella term includes reclaiming ignitable spent refrigerants as
defined in the context of the RCRA regulations at 40 CFR 261.1(c), and
either reclaiming or recycling refrigerants as defined in 40 CFR
82.152. ``Recycle for reuse'' would not include recycling that involves
burning for energy recovery or use in a manner constituting disposal
(use in or on the land) as defined in 40 CFR 261.2(c), or sham
recycling as defined in 40 CFR 261.2(g).
2. Background
On February 13, 1991, EPA promulgated an interim final rule
excluding spent chlorofluorocarbon (CFC) refrigerants from the
definition of hazardous waste under RCRA when recycled for reuse (56 FR
5910). EPA was concerned that subjecting used CFC refrigerants to RCRA
hazardous waste regulations would result in increased venting of these
refrigerants, resulting in increased levels of ODS in the stratosphere.
As described above in section III.C, EPA promulgated a series of rules
implementing provisions under CAA title VI to phase out class I and
class II ODS, including CFCs used as refrigerants, and establishing
standards applicable to the use, disposal, and recycling of ODS
refrigerants and their substitutes. Some of these acceptable
substitutes are flammable and likely to exhibit the hazardous waste
characteristic of ignitability found in 40 CFR 261.21.\141\ As
described in section I.B, ASHRAE Standard 34-2022 assigns a safety
group classification for each refrigerant which consists of two
alphanumeric characters (e.g., A2 or B1). The capital letter indicates
the toxicity class (``A'' for lower toxicity), and the numeral denotes
the flammability. ASHRAE recognizes three classifications and one
subclass for refrigerant flammability. The three main flammability
classifications are Class 1, for refrigerants that do not propagate a
flame when tested as per the ASHRAE 34 standard, ``Designation and
Safety Classification of Refrigerants;'' Class 2, for refrigerants of
lower flammability; and Class 3, for highly flammable refrigerants,
such as certain hydrocarbon refrigerants. ASHRAE recently updated the
safety classification matrix to include a new flammability subclass 2L,
for flammability Class 2 refrigerants that
[[Page 82823]]
burn very slowly.\142\ Since 2010, EPA's SNAP program has listed a
number of flammable substitute refrigerants that have ASHRAE safety
classifications of A3 (higher flammability, lower toxicity refrigerants
such as propane or isobutane) or A2L (lower flammability, lower
toxicity refrigerants such as HFC-32 or HFO-1234yf).
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\141\ ``Flammability'' as identified by the ASHRAE standards and
``ignitability'' as identified by the RCRA 40 CFR 261.21 standard
are both intended to capture the potential for a substance to cause
fires. However, since the methodology used under these two systems
differs, EPA is using ``flammability'' when describing the ASHRAE
standard and ``ignitability'' when describing wastes that are
regulated under RCRA when they meet the ignitable characteristic in
Sec. 261.21 and therefore are subject to hazardous waste management
requirements. In general, a flammable substance would be presumed to
be also ignitable under RCRA unless testing were to demonstrate
otherwise.
\142\ ASHRAE Fact Sheet Update on New Refrigerants Designations
and Safety Classification November 2022. https://www.ashrae.org/file%20library/technical%20resources/bookstore/factsheet_ashrae_english_november2022.pdf.
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The standard for flammability under ASHRAE Standard 34-2022 does
not correspond precisely with the RCRA standards for ignitability found
in 40 CFR 261.21, but in general, refrigerants with a flammability
Class of 2 or 3 are expected to be ignitable under RCRA. Spent
refrigerants with a flammability class of 2L may or may not be
ignitable hazardous waste, depending on the specific chemical(s) used
in the refrigerant and contamination of the refrigerant during use.
Note that even refrigerants that do not exhibit the RCRA characteristic
of ignitability as a virgin material could become ignitable with use,
especially if contaminated with oil or other lubricants, posing a risk
of fire if mismanaged.\143\ Similarly, the flash point of a refrigerant
that is a blend of two or more chemicals can change if there is a leak
during operation or during recovery and storage, when the refrigerant
from multiple appliances is combined, or if the recovery process is
incomplete, potentially changing the hazardous waste characteristic of
the spent refrigerant when collected.
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\143\ S N Kopylov et al 2019 IOP Conf. Ser.: Earth Environ. Sci.
272 022064; https://iopscience.iop.org/article/10.1088/1755-1315/272/2/022064.
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It should be noted that these ignitable spent refrigerant
substitutes do not fall under the 40 CFR 261.4(b)(12) RCRA exclusion
for refrigerants, since that exclusion is limited to CFC
refrigerants.\144\ The applicability of RCRA to flammable refrigerants
is also discussed in the 2016 SNAP final rule (81 FR 86799-86800,
December 1, 2016). Consistent with that discussion, EPA does not
consider incidental releases of spent refrigerant that occur during the
service and repair of appliances subject to CAA section 608 to be
disposal of a hazardous waste under RCRA. However, ignitable spent
refrigerant from commercial and industrial appliances (i.e., non-
household appliances) will be classified as hazardous waste and will
need to be managed under the applicable RCRA regulations (40 CFR parts
260 through 270) when recovered (i.e., removed from an appliance and
stored in an external container) or disposed of. These requirements
include RCRA hazardous waste generator notification and on-site
accumulation standards, emergency preparedness and other requirements,
hazardous waste manifest and transportation requirements for the
ignitable spent refrigerant, and RCRA permit requirements for
refrigerant recyclers that store the refrigerant prior to recycling,
unless the refrigerants are recycled for reuse under 40 CFR part 266,
subpart Q, as described later in this section.
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\144\ EPA did not reopen the original CFC refrigerant recycling
exclusion and did not request comment on 40 CFR 261.4(b)(12).
---------------------------------------------------------------------------
3. Final Alternative RCRA Standards for Ignitable Spent Refrigerants
Being Recycled for Reuse
Similar to EPA's concerns expressed in the 1991 rulemaking
establishing the CFC refrigerant recycling exclusion, EPA is concerned
that applying the full RCRA hazardous waste requirements to substitute
refrigerants that exhibit the hazardous characteristic of ignitability
would discourage recycling and could result in an increase in releases
of ignitable refrigerants, including HFC ignitable refrigerants,
contrary to the goals of RCRA. The Agency separately notes that such
releases would also be contrary to one of the purposes of regulations
under subsection (h)(1) of the AIM Act, which is to minimize releases
of HFCs from equipment. Moreover, inadvertently incentivizing releases
of refrigerants would be contrary to RCRA section 3004(n), which
requires EPA to control air emissions from hazardous waste management,
as may be necessary to protect human health and the environment.
Finally, the current requirements for recovery of refrigerants under
the CAA section 608 rules are more stringent than the recycling
requirements under the RCRA 40 CFR 261.6, recyclable materials rules,
and help ensure that ignitable spent refrigerants are legitimately
recycled for reuse, as well as address the flammability risks posed by
ignitable spent refrigerants.
For the reasons stated above, EPA is finalizing standards under 40
CFR part 266, subpart Q, applicable to certain ignitable spent
refrigerants that are recycled for reuse that will apply instead of the
full RCRA Subtitle C hazardous waste requirements. The purpose of these
standards is to help reduce emissions of ignitable spent refrigerants
to the lowest achievable level by maximizing the recovery and safe
recycling of such refrigerants during the service, repair, and disposal
of appliances.
EPA proposed that 40 CFR part 266, subpart Q, RCRA alternative
standards would apply to HFCs and substitutes that are lower
flammability (i.e., that do not belong to flammability Class 3). In
this final action, consistent with the proposal, EPA is keeping the
applicability of the alternative standards to the lower flammability
substitutes because of the lower risk of fire from the collection and
recycling for reuse of these refrigerants, and the greater market value
of these refrigerants, which supports the conclusion that these spent
refrigerants will be recycled for reuse and not stockpiled, mismanaged,
or abandoned. In the context of hazardous secondary materials recycled
under RCRA, EPA has found that a low market value for a reclaimed
product can increase the likelihood of mismanagement and abandonment
occurring during hazardous waste recycling activities.\145\
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\145\ U.S. EPA, A Study of the Potential Effects of Market
Forces on the Management of Hazardous Secondary Materials Intended
for Recycling, November 2006, available at https://www.regulations.gov/document/EPA-HQ-RCRA-2002-0031-0358.
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Lower flammability spent refrigerant means a spent refrigerant that
is not considered highly flammable. Highly flammable refrigerants
include, but are not limited to the following chemicals: butane,
isobutane, methane, propane, and/or propylene. EPA did not receive
comments on the proposed definition of ``lower flammability spent
refrigerant.'' However, the Agency is modifying the definition in this
final rule to provide examples of refrigerants that are considered
highly flammable.
a. Comments on the RCRA Alternative Standards and Changes Made in
Response to Comments
EPA received 17 public comments on the proposed RCRA alternative
standards. All comments were supportive of EPA finalizing alternative
standards that are specifically designed for ignitable spent
refrigerant being recycled for reuse instead of imposing the standard
RCRA Subtitle C hazardous waste requirements on these waste streams.
Accordingly, EPA is finalizing these standards largely as proposed.
However, several comments raised concerns regarding applying the
speculative accumulation limit to storage of ignitable spent
refrigerants at reclamation facilities.\146\ As noted in the
[[Page 82824]]
proposal (88 FR 72275, October 19, 2023), restrictions on speculative
accumulation have been an important element of the RCRA hazardous waste
recycling regulations since they were originally promulgated on January
4, 1985 (50 FR 634 through 637). According to this regulatory
provision, the person accumulating the hazardous secondary material
must demonstrate that the material is recyclable and that during a
calendar year (beginning January 1) the amount of such material that is
recycled or transferred to a different site for recycling is at least
75 percent by weight or volume of the amount of the hazardous secondary
material present at the beginning of the calendar year (January 1).
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\146\ See comment numbers EPA-HQ-OAR-2022-0606-0084, EPA-HQ-OAR-
2022-0606-0085, EPA-HQ-OAR-2022-0606-0102, EPA-HQ-OAR-2022-0606-
0109, EPA-HQ-OAR-2022-0606-0111, EPA-HQ-OAR-2022-0606-0113, and EPA-
HQ-OAR-2022-0606-0159 in the docket.
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Comment: Commenters stated that requiring reclaimers to process 75
percent of these refrigerants within one year would be very challenging
for most reclaimers. In particular, commenters noted that due to a very
small initial installed equipment base and low equipment service rates
in the first years of the HFC phasedown, limiting the accumulation
period to a one-year maximum would require processing of extremely
small quantities, which would be an inefficient use of reclaimer
resources.
Response: EPA notes that there is an existing provision at 40 CFR
260.31(a) that allows facilities to petition EPA for an extension of
the speculative accumulation time limit if the applicant demonstrates
that sufficient amounts of the material will be recycled or transferred
for recycling in the following year. Applicants must follow the
procedures in 40 CFR 260.33.
However, given that the potential limitations in the quantities
available to be processed would be an industry-wide issue during the
first years of the HFC phasedown, EPA agrees with the commenters that a
delayed compliance date for the speculative accumulation requirement is
warranted. This delayed compliance date is a more efficient use of
resources than requiring each affected facility to petition the Agency
for an extension and would allow time to build up supply to make
reclamation more economical for the reclamation facility.
Accordingly, EPA is delaying the compliance date for the
speculative accumulation time limit until the calendar year 2029. Up
until January 1, 2029, reclamation facilities may accumulate ignitable
spent refrigerants without recycling them for reuse as long as the
other requirements of the alternative RCRA standards are met. The
speculative accumulation limits would then begin to apply during
calendar year 2029. In other words, by December 31, 2029, reclaimers
must reclaim 75 percent of the inventory of ignitable spent refrigerant
that was present on-site on January 1, 2029. If they will be unable to
meet this deadline, they may submit a petition for an extension under
40 CFR 260.31 using the procedures in 40 CFR 260.33, or they must
manage their inventory of ignitable spent refrigerant as hazardous
waste.
Comment: One commenter requested clarification on how the new RCRA
alternative standards would apply to persons who receive refrigerants
from off-site but do not recycle them for reuse.\147\
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\147\ See comment number EPA-HQ-OAR-2022-0606-0152 in the
docket.
---------------------------------------------------------------------------
Response: EPA agrees that if a facility receives ignitable spent
refrigerant but does not recycle it for reuse, then it should not be
subject to the proposed standard that requires off-site facilities to
maintain certification by EPA under 40 CFR 82.164. (See 88 FR 72275,
October 19, 2023). However, if such a facility stores the ignitable
spent refrigerant for more than 10 days in the normal course of
transportation,\148\ the same requirements regarding speculative
accumulation and the risks of fire and explosions that EPA identified
in the proposal concerning off-site facilities receiving and
accumulating ignitable spent refrigerants would still apply (88 FR
72275-72276, October 19, 2023). Thus, in the final rule EPA is
including clarifying language to explain that persons who receive
ignitable spent refrigerants from off-site, and are not a transfer
facility that stores the refrigerants for less than 10 days before
sending the refrigerant to another site to be recycled for reuse must:
(1) Meet the emergency preparedness and response requirements of 40 CFR
part 261, subpart M; and (2) not speculatively accumulate the ignitable
spent refrigerant per 40 CFR 261.1(c). This could include those in the
reverse supply chain (e.g., distributors or wholesalers) or final
processors who receive disposable cylinders and remove heels and
consolidate them before discarding the cylinder (see section IV.G.1).
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\148\ Facilities that store less than ten days in the normal
course of transportation are considered to be transfer facilities as
defined in 40 CFR 260.10 and are generally not subject to RCRA
requirements. See 40 CFR 263.12.
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Comment: Finally, one commenter suggested a number of technical
corrections and editorial clarifications to the proposed regulatory
language for the alternative RCRA standards including a suggestion that
EPA remove the term ``alternative,'' since the new requirements are not
optional.\149\
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\149\ See comment number EPA-HQ-OAR-2022-0606-0091 in the
docket.
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Response: EPA has made revisions to the language in response to
these suggestions. In regard to the comment requesting that EPA remove
the description of the new RCRA standards as ``alternative,'' EPA
agrees with the comment that they are not optional for persons who wish
to recycle ignitable spent refrigerant for reuse. However, the new
standards do provide an alternative to the requirements for hazardous
waste disposal at 40 CFR parts 262 through 270, and the term was used
extensively in the proposed rule and communications materials. Thus,
EPA is maintaining the description of the new 40 CFR part 266, subpart
Q, as ``alternative standards'' to distinguish them from the RCRA
hazardous waste disposal standards, but has removed the term from the
subpart Q standards themselves. For more information on public comments
on the proposed RCRA alternative standards, and EPA's responses, please
see RCRA Alternative Standards for Ignitable Spent Refrigerants:
Response to Comments Document available in the docket.
b. Scope of the Final RCRA Alternative Standards
The RCRA alternative standards at 40 CFR part 266, subpart Q, apply
to HFCs and substitutes that do not belong to flammability Class 3.
Class 3 refrigerants are highly flammable refrigerants that include,
but are not limited to, any of the following chemicals: butane,
isobutane, methane, propane, and/or propylene. The alternative
standards are limited to lower flammability substitutes (Class 1, 2 and
2L) \150\ because of the lower risk of fire from the collection and
recycling for reuse of these refrigerants, and the greater market value
of these refrigerants, which supports the conclusion that these spent
refrigerants will be recycled for reuse and not stockpiled, mismanaged,
or abandoned. In the context of hazardous waste recycled under RCRA,
EPA has found that a low market value for a reclaimed product can
increase the likelihood of mismanagement and abandonment
[[Page 82825]]
occurring during hazardous waste recycling activities.
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\150\ Class 1 refrigerants are nonflammable and generally not
expected to be ignitable, and therefore not subject to RCRA
requirements. However, if a spent Class 1 refrigerant were ignitable
due to contamination with oil or other lubricants, it would be
subject to the alternative RCRA standards.
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EPA did not receive any comments on the proposed definition of
``lower flammability spent refrigerant'' but, in order to provide
greater clarity and simplify implementation, in lieu of referring to
the ANSI/ASHRAE standard, EPA is including in the regulatory definition
the list of specific chemicals that are considered Class 3 ``highly
flammable'' refrigerants and therefore are not lower flammability
refrigerants.
c. Requirements of the RCRA Alternative Standards
The specific standards EPA is finalizing for ignitable spent
refrigerants being recycled for reuse for further use in equipment of
the same owner, or by the owner of the recovery equipment in compliance
with MVAC standards in 40 CFR part 82, subpart B, are (1) the ignitable
spent refrigerants are recovered (i.e., removed from an appliance and
stored in an external container) and/or recycled for reuse using
equipment that is certified for that type of refrigerant under 40 CFR
82.36 or 40 CFR 82.158; and (2) the ignitable spent refrigerants are
not speculatively accumulated as defined in 40 CFR 261.1(c).
The specific standards that EPA is finalizing for facilities
receiving refrigerant from off-site to be recycled for reuse are (1)
the reclaimer must maintain certification by EPA under 40 CFR 82.164;
(2) the facility must meet the applicable emergency preparedness and
response requirements of 40 CFR part 261, subpart M; and (3) the
ignitable spent refrigerants must not be speculatively accumulated as
defined in 40 CFR 261.1(c). These requirements are included as part of
the RCRA alternative standard in order to ensure that the ignitable
spent refrigerants are legitimately recycled for reuse in a way that is
protective of human health and the environment. For facilities that
receive ignitable spent refrigerant from off-site and store the
refrigerant for more than 10 days and then send the refrigerant on to a
reclaimer to be recycled for reuse: (1) The facility must meet the
applicable emergency preparedness and response requirements of 40 CFR
part 261, subpart M; and (2) the ignitable spent refrigerants must not
be speculatively accumulated as defined in 40 CFR 261.1(c).
The requirement that the recovery and/or recycling equipment be
certified for that type of refrigerant and appliance under 40 CFR 82.36
(for MVAC systems), or 40 CFR 82.158 (for recycling for reuse in
appliances by the same owner) specifically addresses the ignitability
hazard during refrigerant recovery and recycling for reuse at MVAC
recycling operations in compliance with 40 CFR part 82, subpart B, or
for recycling for reuse in appliances by the same owner. In particular,
appendix B4 to subpart F of 40 CFR part 82--Performance and Safety of
Flammable Refrigerant Recovery and/or Recycling Equipment--requires all
recovery and/or recycling equipment to be tested to meet standards for
the test apparatus, test gas mixtures, sampling procedures, analytical
techniques, and equipment construction that will be used to determine
the performance and safety of refrigerant recovery.
The requirement that the spent refrigerant regulated under the new
alternative standards not be speculatively accumulated per 40 CFR
261.1(c) will help prevent over-accumulation, mismanagement, and
abandonment of the spent refrigerant. Restrictions on speculative
accumulation have been an important element of the RCRA hazardous waste
recycling regulations since they were originally promulgated on January
4, 1985 (50 FR 634 through 637). According to this regulatory
provision, hazardous secondary materials as defined in 40 CFR 260.10
(which would include ignitable spent refrigerants) are accumulated
speculatively if the person accumulating them cannot demonstrate that
the material is potentially recyclable. Further, the person
accumulating the hazardous secondary material must demonstrate that
during a calendar year (beginning January 1), the amount of such
material that is recycled or transferred to a different site for
recycling is at least 75 percent by weight or volume of the amount of
the hazardous secondary material present at the beginning of the
calendar year (January 1). Hazardous secondary materials to be recycled
must be placed in a storage unit with a label indicating the first date
that the material began to be accumulated, or the accumulation period
must be documented through an inventory log or other appropriate
method. Otherwise, the hazardous secondary material is considered to be
speculatively accumulated and not eligible for the alternative
standards in 40 CFR part 266, subpart Q.
Facilities that are unable to comply with the speculative
accumulation time limits do have the option of petitioning EPA for a
variance per 40 CFR 260.31(a), using the procedures in 40 CFR 260.33,
to extend the timeframe for one year. However, as noted in the
discussion of public comments in section IV.H.3.a of this preamble, EPA
is aware that the availability of ignitable spent refrigerants may be
limited during the early years of the HFC phasedown, and accordingly is
delaying the compliance date for speculative accumulation at
reclamation facilities until calendar year 2029. Therefore, up until
January 1, 2029, reclamation facilities may accumulate ignitable spent
refrigerants without recycling them for reuse as long as the other
requirements of the RCRA alternative standards are met. The speculative
accumulation limits would then begin to apply during calendar year
2029. In other words, by December 31, 2029, reclaimers must reclaim 75
percent of the inventory of ignitable spent refrigerants that was
present on January 1, 2029. If they will be unable to meet this
deadline, they may submit a petition for an extension under 40 CFR
260.31 using the procedures in 40 CFR 260.33, or they must manage their
inventory of ignitable spent refrigerants as RCRA hazardous waste.
The requirement that facilities receiving refrigerant from off-site
to be recycled for reuse maintain certification by EPA under 40 CFR
82.164 helps ensure that the recycler is experienced in proper
refrigerant reclamation techniques and will manage the spent
refrigerant in a manner that minimizes releases, with an explicit limit
under the CAA section 608 rules of no more than 1.5 percent of the
refrigerant released during the reclamation process (see 40 CFR
82.164(a)(3)). The certification requirement also helps with the
transparency of the RCRA alternative standards since the list of EPA-
certified refrigerant reclaimers is publicly available on EPA's
website.\151\ In addition, these facilities are certified reclaimers
under CAA section 608 and must follow recordkeeping and reporting
requirements per 40 CFR 82.164(d) including (1) maintaining records of
the names and addresses of persons sending them material for
reclamation and the quantity of the material (the combined mass of
refrigerant and contaminants) sent to them for reclamation; and (2)
reporting annually the quantity of material sent to them for
reclamation by refrigerant type, the mass of refrigerant reclaimed by
refrigerant type, and the mass of waste products. Finally, EPA-
certified refrigerant reclaimers must verify that each batch of
reclaimed refrigerant meets the specifications in the regulations (40
CFR 82.164(a)(2)), which
[[Page 82826]]
helps ensure that the reclamation process is legitimate recycling under
the RCRA regulations.
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\151\ EPA-Certified Refrigerant Reclaimers https://www.epa.gov/section608/epa-certified-refrigerant-reclaimers. Last updated June
13, 2024.
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EPA notes that reclaimed refrigerant that does not meet the
required specifications would be considered an off-specification
(``off-spec'') commercial chemical product under 40 CFR 261.2(c). If
there is an allowable use for the off-spec reclaimed refrigerant and
the material is used as an effective substitute for commercial product,
it may be exempt from RCRA under the use/reuse provisions of 40 CFR
261.2(e). If the off-spec reclaimed refrigerant goes to further
legitimate reclamation, it could also be exempt from RCRA under 40 CFR
261.2(c)(3). If the ignitable, off-spec reclaimed refrigerant cannot be
either legitimately reused or further reclaimed, it would need to be
managed as a hazardous waste.
EPA further notes that persons who reclaim HFCs that are listed as
regulated substances under the AIM Act must meet the recordkeeping and
reporting requirements as set forth in 40 CFR 84.31(a) and 84.31(i).
Finally, including the requirement that facilities receiving
refrigerant to be recycled for reuse, or that store the refrigerant for
more than 10 days before sending it on to be recycled for reuse, must
meet the RCRA standards under 40 CFR part 261, subpart M, Emergency
Preparedness and Response for Management of Excluded Hazardous
Secondary Materials, addresses the risks posed specifically by
ignitable spent refrigerants, which are a subset of hazardous secondary
materials.\152\ Facilities receiving ignitable spent refrigerants from
other parties for recycling for reuse will be subject to this
additional emergency preparedness requirement because these third-party
recyclers will receive ignitable spent refrigerants from multiple
sources and are likely to store greater volumes for longer time periods
than companies that recycle for reuse in appliances by the same owner
or as part of an MVAC refrigerant recovery and recycling system in
compliance with 40 CFR part 82, subpart B. These emergency preparedness
and response requirements include maintaining appropriate emergency
equipment on-site, having access to alarm systems, maintaining needed
aisle space, making arrangements with local emergency authorities, and
having a designated emergency coordinator who is responsible for
responding in the event of an emergency. This requirement will help
protect human health and the environment in the event of a fire or
other emergency at the facility. Under the final rule, all facilities
receiving ignitable spent refrigerant from off-site, except for 10-day
transfer facilities, must meet the emergency preparedness and response
requirements under 40 CFR 261.410 and 40 CFR 261.420, which include
general personnel training requirements for facilities (40 CFR
261.420(g)).
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\152\ Per 40 CFR 260.10, ``hazardous secondary materials'' means
a secondary material (e.g., spent material, by-product, or sludge)
that, when discarded, would be identified as hazardous waste under
40 CFR part 261. Ignitable spent refrigerant meets this definition.
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4. RCRA Very Small Quantity Generator Wastes
Very Small Quantity Generators (VSQGs) generate less than 100
kilograms of hazardous waste per month and one kilogram or less per
month of acutely hazardous waste and are subject to a limited set of
Federal RCRA Subtitle C hazardous waste regulations, provided that they
comply with the conditions set forth in 40 CFR 262.14. Among those
conditions is that the VSQG must either treat and dispose of its
hazardous waste in an on-site facility or ensure delivery to an off-
site facility listed in 40 CFR 262.14(a)(5). Included in this list is a
facility that (1) beneficially uses or reuses, or legitimately recycles
or reclaims, its waste; or (2) treats its waste prior to beneficial use
or reuse, or legitimate recycling or reclamation.
For ignitable spent refrigerant regulated under the new RCRA
alternative standards, EPA is finalizing a conforming change to 40 CFR
262.14(a)(5) to require that these refrigerants be sent to a facility
that meets the requirements of 40 CFR part 266, subpart Q if sent off-
site for recycling. This revision incorporates into the RCRA
regulations that VSQGs' ability to send ignitable spent refrigerants
for recycling for reuse is limited to facilities that meet EPA's
certification requirements in 40 CFR 82.164. This revision does not
affect refrigerants not subject to the new RCRA alternative standards
(e.g., ignitable spent refrigerants that are not sent off-site to be
recycled for reuse).
EPA notes that while this change is more stringent than the current
RCRA regulations, VSQGs would experience no additional burden since
under the CAA section 608 rules, all reclaimers receiving used ODS
refrigerants or non-exempt substitute refrigerants from off-site for
reclamation must meet EPA's certification requirements in 40 CFR
82.164.
5. RCRA Regulation of Exports and Imports of Certain Ignitable Spent
Refrigerants
The RCRA alternative standards are limited to ignitable spent
refrigerants that are recycled for reuse in the United States, and they
require that off-site recycling for reuse be performed at an EPA-
certified reclaimer per 40 CFR 82.164. Therefore, ignitable spent
refrigerants intended for export would not qualify for the RCRA
alternative standards, and would instead be regulated under the full
RCRA Subtitle C requirements, including the relevant hazardous waste
export requirements in 40 CFR part 262, subpart H.
Ignitable spent refrigerants that are imported would qualify for
alternative RCRA standards, as long as the imported refrigerants meet
the requirements of the RCRA alternative standards, including being
recycled for reuse at an EPA-certified reclaimer per 40 CFR 82.164.
This provision does not amend, reopen or otherwise affect any of the
requirements for regulated substances established under the AIM Act
that are codified at 40 CFR part 84, subpart A.
6. Applicability of Alternative Standard in RCRA-Authorized States
Under section 3006 of RCRA, EPA may authorize a State hazardous
waste program to operate in lieu of the Federal program within the
State. Following authorization, EPA maintains its enforcement
authorities, although authorized States have primary enforcement
responsibility for their authorized programs. The standards and
requirements for state authorization are found in 40 CFR part 271.
Prior to the enactment of the HSWA, an authorized state hazardous
waste program operated entirely in lieu of the Federal program in that
state. The Federal requirements no longer applied in the authorized
state, and EPA could not issue permits for any facilities in that
state. When new, more stringent, or broader Federal requirements were
promulgated, the state was obligated to adopt equivalent authorities
under state law within specified time-frames. However, new requirements
did not take effect in an authorized state until the state adopted such
equivalent authorities, and these requirements did not become part of
the authorized program enforceable by EPA until EPA authorized them.
In contrast, with the enactment of RCRA section 3006(g), which was
added by HSWA, new Federal requirements and prohibitions imposed
pursuant to HSWA authority take effect in
[[Page 82827]]
authorized states at the same time that they take effect in
unauthorized States. EPA is directed by section 3006(g) to implement
HSWA-based requirements and prohibitions in authorized States until EPA
authorizes equivalent State authorities. While States must still adopt
state-law equivalents to HSWA-based requirements and prohibitions to
retain final authorization, until the States do so, and EPA authorizes
the state-law equivalents, EPA implements and enforces these provisions
in authorized States.
Authorized states are required to modify their programs when EPA
promulgates Federal requirements that are more stringent or broader in
scope than existing Federal requirements. RCRA section 3009 allows the
States to impose standards more stringent than those in the Federal
program (see also 40 CFR 271.1). If EPA promulgates a Federal
requirement that is less stringent or narrower in scope than an
existing requirement or of equivalent stringency, authorized States
may, but are not required to, adopt a new equivalent requirement
regardless of whether or not it is promulgated under HSWA authority.
7. Effect on State Authorization
The RCRA regulations described in this final rule are promulgated
under the authority of HSWA and are more stringent than the existing
Federal regulations. Thus, the standards will be applicable on the
rule's effective date in all States and will be implemented and
enforced by EPA until the States receive authorization. These RCRA
regulations add a new subpart, Q, to 40 CFR part 266, Standards for the
Management of Specific Hazardous Wastes and Specific Types of Hazardous
Waste Management Facilities, and are being finalized under the
authority of HSWA due to their purpose of reducing air emissions from
the management of ignitable spent refrigerants, in accordance with
EPA's mandate to control air emissions from hazardous waste management,
as may be necessary to protect human health and the environment, per
RCRA section 3004(n), which was promulgated under HSWA. In addition,
the changes to the VSQG Regulations in 40 CFR 262.14 are being
promulgated under RCRA section 3001(d)(4), also a HSWA provision.
The final alternative standard establishes a ``cradle-to-cradle''
management system for ignitable spent refrigerants being recycled for
reuse and includes requirements that are more stringent than the
current applicable RCRA recycling requirements in 40 CFR 261.6(c),
which exempts the recycling process itself from RCRA regulation. This
final management system includes the requirement that refrigerant be
recovered and/or recycled for reuse in appliances by the same owner
using equipment that is certified for that type of refrigerant and
appliance under 40 CFR 82.36 or 82.158, and that the recovered
refrigerant be sent off-site to be recycled for reuse at a facility
certified by EPA under 40 CFR 82.164. Both of these provisions are more
stringent than the existing RCRA recycling requirements. In addition,
the revisions to the VSQG regulations in 40 CFR 262.14 specify that
VSQGs' ability to send ignitable spent refrigerant for recycling for
reuse is limited to facilities that meet EPA's certification
requirements in 40 CFR 82.164 and are more stringent than the current
standard. These certifications in 40 CFR 82.164 involve a number of
requirements for reclamation that are more stringent than those under
the RCRA hazardous waste program, including an explicit limit of no
more than 1.5 percent of the refrigerant released during the
reclamation process (see 40 CFR 82.164(a)(3)). In addition, these
certified reclaimers must follow recordkeeping and reporting
requirements per 40 CFR 82.164(d), including (1) maintaining records of
the names and addresses of persons sending them material for
reclamation and the quantity of the material (the combined mass of
refrigerant and contaminants) sent to them for reclamation and (2)
reporting annually the quantity of material sent to them for
reclamation by refrigerant type, the mass of refrigerant reclaimed by
refrigerant type, and the mass of waste products. Finally, EPA-
certified refrigerant reclaimers must verify that each batch of
reclaimed refrigerant meets the specifications in the regulations (40
CFR 82.164(a)(2)), which helps ensure that the reclamation process is
legitimate recycling under the RCRA regulations. These alternative
standards are designed to function as a system that is better tailored
to the reclamation of ignitable spent refrigerants than the RCRA
requirements in 40 CFR 262-270, and when considered as a whole are more
stringent when compared to the previously applicable RCRA recycling
requirements.
Moreover, as stated above, authorized States are required to modify
their programs when EPA promulgates Federal regulations that are more
stringent or broader in scope than the authorized State regulations.
Because the revisions in this rule are considered to be more stringent
than the existing Federal requirements, authorized States must modify
their programs to adopt regulations equivalent to the provisions
contained in this final RCRA rule.
I. MVAC Servicing and Reprocessed Material
EPA did not propose, and therefore is not establishing requirements
focused on implementing subsection (h)(2)(B) for MVAC servicing
facilities that currently reclaim or recycle recovered MVAC refrigerant
in this action. As stated at proposal, EPA understands that under
current industry practices, a variety of things might occur once
refrigerant has been recovered from an MVAC system. For example, in
some situations, MVAC servicing facilities recover refrigerant from the
MVAC, recycle it consistent with EPA's regulations under CAA section
609, and return the recycled refrigerant to the same MVAC for continued
use by the same owner.\153\ In other circumstances, however, EPA
understands that the recovered MVAC refrigerant is recycled and used in
servicing a different MVAC system with a different owner (e.g., to
charge or recharge such a system), thereby in effect selling or
transferring the refrigerant to a new owner. See 40 CFR 82.34(d)(2).
Additionally, the Agency understands that there are circumstances where
refrigerant recovered from MVAC systems is reclaimed before it is
reused, sold, or transferred to a new owner.
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\153\ Another example of an instance where there is no change in
ownership is the off-site servicing and recharge of MVAC systems for
a fleet of trucks that are owned by the same company.
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The servicing and repair of MVAC systems with HFCs and HFC
substitutes (e.g., HFO-1234yf and R-744 (CO2)) have long
been subject to certain requirements that are separate from those that
apply for the servicing and repair of stationary appliances.
Regulations under CAA section 609 require that section 609-certified
technicians use equipment approved pursuant to the standards at 40 CFR
82.36 to service and repair MVAC systems. Under those existing
regulations, recovered refrigerant can either be recycled on-site or
off-site using approved equipment designed to both recover and recycle
refrigerant certified to meet SAE J2099.\154\ SAE J2099 establishes the
minimum level of refrigerant purity (e.g., 98 percent for HFO-1234yf)
required for the certification of on-site recovery and recycling
machines per SAE J2843 and SAE J2788. Refrigerant from reclamation
[[Page 82828]]
facilities that is used for the purpose of recharging MVACs must be at
or above the standard of purity (i.e., 99.5 percent) level defined in
AHRI Standard 700, and EPA understands that such reclamation typically
occurs off-site. See 40 CFR 82.32(e)(2).
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\154\ SAE International, 2012. SAE J2099: Standard of Purity for
Recycled R-134a (HFC-134a) and R-1234yf (HFO-1234yf) for Use in
Mobile Air- conditioning Systems.
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Due to the longstanding practice of on-site recycling of single-
component MVAC refrigerants, some industry stakeholders \155\
questioned the need to reclaim recovered MVAC refrigerant to meet the
purity level described in AHRI Standard 700-2016 as specified in the
definition of the terms ``reclaim'' and ``reclamation'' in subsection
(b)(9) of the Act. They noted that equipment certified to meet SAE
J2099 is rated to clean and separate material in contaminated
refrigerant to a 98 percent purity level, which provides the same level
of performance and durability as virgin refrigerant for purposes of use
in MVACs. They also pointed out the ambiguity in the phrase ``(or an
appropriate successor standard adopted by the Administrator)'' in the
definition of ``reclaim'' and ``reclamation'' in the AIM Act. While
there may be a variety of situations that could lead to the adoption of
a successor standard by the Administrator within the meaning of
subsection (b)(9), in EPA's view one such circumstance would be if AHRI
published a subsequent standard or addendum regarding the reprocessing
of a recovered regulated substance to a specified purity standard and
the analytical methodology to verify the purity of that regulated
substance, and that standard were adopted by the Administrator as a
successor standard.
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\155\ March 6, 2023, EPA meeting with Mobile Air Climate Systems
(MACS) Association and SAE International. Meeting materials
available in the docket (EPA-HQ-OAR-2022-0606) for this rulemaking
at https://www.regulations.gov.
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EPA is aware that AHRI is in consultations with SAE International,
the Mobile Air Climate Systems Association (MACS), and other industry
stakeholders to develop a standard (or update an existing standard)
that may be more appropriate for MVAC servicing than AHRI Standard 700-
2016.\156\ If such a standard is finalized, EPA intends to review it,
and any supporting information, and consider what implications it might
have for potential approaches that the Agency might consider in future
rulemakings to implement subsection (h)(2)(B) for MVAC systems.
Additionally, the Agency could consider establishing its own purity
standard and analytical methodology for verification of the purity of
recovered regulated substances, as well as specifying minimum equipment
requirements for MVAC systems under subsection (h). Among other things,
such a standard could be based on consideration of input from
stakeholders and consensus standards bodies. EPA could consider
adopting any such standard in a future rulemaking. In light of the time
needed to develop such standards (whether developed by EPA or standard-
setting organizations) and for EPA to consider whether they are
appropriate for the Agency to adopt as successor standards in the
context of subsection (h), as well as the implications that such
standards might have on the regulations that EPA might propose to
implement subsection (h)(2)(B) for MVAC systems, EPA did not propose
such regulations. Instead, EPA intends to issue proposed regulations
for this sector at a later date, once it has additional clarity on the
development of such a successor standard and its likely content.
Additionally, the Agency may need to consider potential approaches for
the recycling and/or reclaiming of MVAC refrigerant blends, which may
include regulated substances and/or substitutes for regulated
substances, particularly given use of blends would be a significant
departure from industry past practice for MVAC systems.
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\156\ Letter to EPA from AHRI, Alliance for Automotive
Innovation, Alliance for Responsible Atmospheric Policy, and MACS
dated June 9, 2023. Available in the docket (EPA-HQ-OAR-2022-0606)
for this rulemaking at https://www.regulations.gov.
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Comment: One commenter stated that they support the AIM Act and
engaged early with EPA to share their ongoing process for ``phasing out
HFCs.'' The commenter stated that their members fully support the goals
of phasing HFCs out of their vehicles sold in the United States, and
that their member companies have been undergoing this transition for
many years.
Response: EPA acknowledges these comments and their support of the
AIM Act. To the extent that these comments relate to EPA actions under
other provisions of the AIM Act, such as the HFC phasedown or
restrictions under subsection (i) of the AIM Act, they are beyond the
scope of this rulemaking and thus require no further response.
Comment: Three commenters supported the Agency's decision to not
issue requirements under subsection (h)(2)(B) for MVAC servicing
facilities. One commenter noted that the MVAC sector is unique, with
regulations under 40 CFR part 82, subpart B, allowing recovered and
recycled refrigerant to be returned to the same MVAC for continued use
by the same owner or used to service a different MVAC system. Another
commenter stated that implementing requirements under the AIM Act for
the MVAC sector or requiring the return of refrigerant heel in
disposable cylinders to reclaimers would have a significant cost impact
with limited environmental benefits. The commenter further stated that
SAE standards already require section 609-certified technicians to
recover the refrigerant heel in disposable cylinders and that
refrigerant heel amounts are less than one pound under SAE J2788
standards specifications performed in laboratory testing.
Response: EPA acknowledges these comments. EPA did not propose and
is not finalizing requirements in this rulemaking under subsection
(h)(2)(B) of the AIM Act for MVAC servicing facilities that currently
reclaim or recycle recovered MVAC refrigerant. Thus, EPA need not
further address the points in these comments related to such
requirements.
Comment: A few commenters expressed support of EPA's decision to
give time for SAE, AHRI, MACS, other industry stakeholders, and/or
other entities to consider a new purity standard for MVAC systems. One
commenter noted that the ``appropriate successor standard'' provision
under the AIM Act would allow the current practice of on-site recycling
of MVAC refrigerant prior to transfer of ownership to continue through
either a modified version of AHRI 700 or, preferably, an updated
version of SAE J2099. Another commenter stated that they supported the
Agency's decision to defer to AHRI and SAE to develop an updated
standard or standards and mentioned that AHRI has a long track record
of developing robust industry standards and is best poised to update
Standard 700-2016. One commenter stated that SAE is currently reviewing
and revising SAE J2099 to address concerns in the auto sector about
using purity-based refrigerant compositions rather than performance-
based metrics as a basis for decisions on whether a vehicle must be
recovered, or if the material can be recycled.
Response: EPA acknowledges these comments. As noted previously, EPA
did not propose and is not finalizing requirements under subsection
(h)(2)(B) of the AIM Act for MVAC servicing facilities that currently
reclaim or recycle recovered MVAC refrigerant in this rulemaking. Thus,
EPA need not further address the points in these comments related to
such requirements. Further, as explained earlier in this section, EPA
intends to consider issuing such proposed regulations for this sector
at a later date. The Agency reminds stakeholders that the regulatory
provisions under CAA sections 608 and
[[Page 82829]]
609 continue to apply and cover both servicing and end-of-life for MVAC
systems.
Comment: One commenter stated that EPA should require 100 percent
reclaimed refrigerant in all small containers of MVAC refrigerant by
2027, consistent with CARB's Small Container of Automotive Refrigerant
regulation. The commenter stated that after conversations will
stakeholders, they anticipate that there will be enough supply of
reclaimed HFC-134a to meet demand for the refrigerant.
Response: EPA responds that the Agency did not propose and is not
finalizing use of 100 percent reclaimed refrigerant in small containers
of MVAC refrigerant. For reasons explained in section IV.E, the
requirements related to the servicing and/or repair of certain
refrigerant-containing equipment with reclaimed HFCs in the final rule
are limited to stationary equipment.
V. How is EPA treating data reported under this rule?
Consistent with EPA's commitment to transparency in program
implementation, as well as to proactively encourage compliance, support
enforcement of program requirements and enable third-party engagement
to complement EPA's enforcement efforts, The Agency is finalizing
requirements for the treatment and release of data that it will
collect. EPA is finalizing certain categorical emission data and
confidentiality determinations for individual reported data elements
that EPA will collect through this rulemaking. This action identifies
certain information categories that must be submitted to EPA and will
be subject to disclosure to the public without further notice because
the information has been determined to be either ``emission data''
under 40 CFR 2.301(a), or the Agency has found that the information
does not meet the standard for confidential treatment under Exemption 4
of the Freedom of Information Act (FOIA). EPA has also identified
certain other categories of information that may be entitled to
confidential treatment. For information EPA is not determining in this
rulemaking to be emission data or not otherwise entitled to
confidential treatment, EPA will apply the 40 CFR part 2 process for
establishing case-by-case confidentiality determinations. As explained
further in the following discussion, the emission data and
confidentiality determinations in this action are intended to increase
the efficiency with which the Agency responds to FOIA requests and to
provide consistency in the treatment of the same or similar
information. Establishing these determinations through this rulemaking
provides predictability for both information requesters and submitters.
The emission data and confidentiality determinations in this rule will
also increase transparency, as well as supporting compliance with, and
enforcement of, the program's requirements.
A. Background on Determinations of Whether Information Is Entitled to
Treatment as Confidential Information
1. Confidential Treatment of Reported Information
Regulated entities that must submit information to EPA frequently
claim that some or all of that information is entitled to confidential
treatment and therefore exempt from disclosure under Exemption 4 of the
FOIA.\157\ Exemption 4 exempts from disclosure ``trade secrets and
commercial or financial information obtained from a person [that is]
privileged or confidential.'' \158\ In order for information to meet
the requirements of Exemption 4, EPA must find that the information is
either: (1) A trade secret, or (2) commercial or financial information
that is: (a) Obtained from a person, and (b) privileged or
confidential.
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\157\ 5 U.S.C. 552(b)(4).
\158\ 5 U.S.C. 552(b)(4).
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Generally, when the Agency has information that it intends to
disclose publicly that is covered by a claim of confidentiality under
FOIA Exemption 4, EPA has a process to make case-by-case or class
determinations under 40 CFR part 2 to evaluate whether such information
qualifies for confidential treatment under the
exemption.159 160 In this action, EPA is providing clarity
concerning certain categorical emission data and confidentiality
determinations for some information that must be submitted to EPA under
these requirements. For those determinations, that information would be
subject to disclosure to the public without further notice.
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\159\ 40 CFR 2.205.
\160\ This approach of making categorical determinations for a
class of information is a well-established Agency practice. Prior
examples of rules where EPA has made such categorical determinations
include Confidentiality Determinations for Data Required Under the
Mandatory Greenhouse Gas Reporting Rule and Amendments to Special
Rules Governing Certain Information Obtained Under the Clean Air Act
(76 FR 30817) (May 26, 2011); Control of Air Pollution From New
Motor Vehicles: Heavy-Duty Engine and Vehicle Standards (88 FR 4296)
(January 24, 2023); and Renewable Fuel Standard (RFS) Program: RFS
Annual Rules (87 FR 39600) (July 1, 2002).
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The U.S. Supreme Court decision in Food Marketing Institute v.
Argus Leader Media, 139 S. Ct. 2356 (2019) (Argus Leader) addresses the
meaning of ``confidential'' within the context of FOIA Exemption 4. The
Court held that ``[a]t least where commercial or financial information
is both customarily and actually treated as private by its owner and
provided to the government under an assurance of privacy, the
information is `confidential' within the meaning of Exemption 4.''
\161\ The Court identified two conditions ``that might be required for
information communicated to another to be considered confidential.''
\162\ Under the first condition, ``information communicated to another
remains confidential whenever it is customarily kept private, or at
least closely held, by the person imparting it.'' \163\ The second
condition provides that ``information might be considered confidential
only if the party receiving it provides some assurance that it will
remain secret.'' \164\ The Court found the first condition necessary
for information to be considered confidential within the meaning of
Exemption 4, but did not address whether the second condition must also
be met.
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\161\ Argus Leader, 139 S. Ct. at 2366.
\162\ Id. at 2363.
\163\ Id. (internal citations omitted).
\164\ Id. (internal citations omitted).
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Following the issuance of the Court's opinion in Argus Leader, the
U.S. Department of Justice (DOJ) issued guidance concerning the
confidentiality prong of Exemption 4, articulating ``the newly defined
contours of Exemption 4'' post- Argus Leader.\165\ Where the government
provides an express or implied indication to the submitter prior to or
at the time the information is submitted to the government that the
government would publicly disclose the information, then the submitter
generally cannot reasonably expect confidentiality of the information
upon submission, and the information is not entitled to confidential
treatment under Exemption 4.\166\ Information will not be kept
confidential and will be disclosed publicly if it is determined to not
be entitled to confidential treatment in this rule. This is aligned
with the Supreme
[[Page 82830]]
Court's decision, and the subsequent DOJ guidance that the government's
assurances that a submission will be treated as not confidential should
dictate the expectations of submitters. Based on the finalized
determinations, submitters are on notice before they submit any
information that EPA has determined that the identified data elements
outlined in Tables 2, 3, and 4 below, as well as in the memorandum
provided in the docket for this action titled Confidentiality
Determinations and Emission Data Designations for Data Elements in the
Final Rule, will not be entitled to confidential treatment upon
submission and may be released by the Agency without further notice. As
a result, submitters do not have a reasonable expectation that the
information will be treated as confidential; rather, they have the
reasonable expectation that the information will be disclosed.
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\165\ ``Exemption 4 After the Supreme Court's Ruling in Food
Marketing Institute v. Argus Leader Media and Accompanying Step-by-
Step Guide,'' Office of Information Policy, U.S. DOJ, (October 4,
2019). Available at: https://www.justice.gov/oip/exemption-4-after-supreme-courts-ruling-food-marketing-institute-v-argus-leader-media.
\166\ See id.; see also ``Step-by-Step Guide for Determining if
Commercial or Financial Information Obtained from a Person is
Confidential under Exemption 4 of the FOIA,'' Office of Information
Policy, U.S. DOJ, (updated October 7, 2019). Available at: https://www.justice.gov/oip/step-step-guide-determining-if-commercial-or-financial-information-obtained-person-confidential.
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As described further below, EPA is making categorical
confidentiality determinations for some of the data that will be
submitted to EPA because these data contain information that is not
entitled to confidential treatment. The reason this information is not
entitled to confidential treatment is that either it is not the type of
information that submitters customarily keep private or closely held,
it is already publicly available, or it is discernible information that
is self-evident or readily observable through reverse engineering by a
third party.
Comment: One commenter stated that EPA's requirements with respect
to confidential data are responsible and appropriate. Another commenter
recommended that EPA consider the scope, cost, and effort for the
Agency to publish and maintain such information and that EPA consider
modifying its publications to be on an annual or other basis if the
burden of publication becomes too great to maintain.
Response: EPA acknowledges the general support for the proposal.
The Agency did consider scope and cost for data collection in the
information collection request (ICR) available in the docket of this
final rulemaking. As noted above, the Agency is committed to data
transparency and intends to maintain and publish (e.g., post on EPA's
website) with an appropriate frequency.
Comment: A few commenters discussed the proposed container tracking
data elements. One commenter stated that EPA peremptorily proposed to
find that certain categorical information is either ``emission data''
and should be treated as such pursuant to 40 CFR 2.301(a) or that this
type of information does not qualify for confidential treatment under
Exemption 4 of the FOIA. The commenter further stated that this would
treat the covered information as releasable without further
notification to the submitter. This commenter disagreed with these
proposed determinations and with EPA's proposed conclusion that data
elements associated with the proposed tracking system were not the type
of information that is customarily closely held or kept private by
companies. The commenter also disagreed with EPA's proposed conclusion
that this information meets the regulatory definition of ``emissions
data'' within 40 CFR 2.301(a)(2)(i). Another commenter supported the
proposed rule's data collection requirements and encouraged EPA to
expand the public availability of data on the composition and volumes
of refrigerants on the U.S. market, including expanded transparency
requirements for virgin producers in order to facilitate EOL
fractionation and reclamation.
Response: EPA interprets the first comment to relate to the
proposed confidentiality determinations for the data elements related
to the container tracking requirements that were included in section
V.C of the proposal. As discussed in section I.B, the Agency is not
finalizing container tracking requirements at this time and thus is not
making final determinations on the confidential treatment of those data
elements in this rulemaking. Accordingly, the Agency need not respond
to comments regarding the proposed confidentiality determinations for
the container tracking system in this rulemaking. However, EPA notes
that the commenter has presented only general objections to EPA's
proposed determinations that these data elements were emissions data or
did not qualify for confidential treatment, and the comment did not
identify which particular data elements it views as entitled to
confidential treatment or not qualifying as emissions data. The
commenter also did not provide any information to support their
assertions that the proposed determinations would result in the
``disclosure of much information that is not public'' \167\ and that
would result in harm; moreover, the commenter provided no
substantiation to show that this information is customarily treated as
confidential. This lack of specificity would impede EPA's effort to
evaluate the commenter's concerns with respect to any particular data
elements. Insofar as commenters disagree with proposed determinations
that information is not entitled to confidential treatment, they should
highlight the particular data element or elements where they disagree
with the proposed determination and provide information regarding how
that data element is customarily and actually treated by them and by
their industry sector to support their assertions. Without such
information, EPA is unable to fully assess the commenters' concerns,
particularly when the data elements include information where EPA can
discern no apparent reason for thinking that the information would
typically be treated as confidential by the submitter (e.g.,
information that is already publicly available or is not generally
claimed as confidential by the industry sector). Further, the fact that
only one commenter objected to the proposed determinations may indicate
that the information is not customarily closely held or kept private.
---------------------------------------------------------------------------
\167\ See comment number EPA-HQ-OAR-2022-0606-0085 at 25.
---------------------------------------------------------------------------
EPA acknowledges the other commenter's support of the data
collection requirements and availability of public data to extent that
it is covered in this final rule. Data regarding production is outside
the scope of this rule but may already be available at the HFC data
hub.\168\
---------------------------------------------------------------------------
\168\ Available at: https://www.epa.gov/climate-hfcs-reduction/hfc-data-hub.
---------------------------------------------------------------------------
2. Emission Data Under Section 114 of the Clean Air Act
The AIM Act provides that, ``[s]ections 113, 114, 304, and 307 of
the CAA (42 U.S.C. 7413, 7414, 7604, 7607) shall apply to this section
and any rule, rulemaking, or regulation promulgated by the
Administrator pursuant to this section as though this section were
expressly included in title VI of that Act (42 U.S.C. 7671 et seq.).''
The CAA states that ``[a]ny records, reports or information obtained
under [section 114] shall be available to the public.'' \169\ Thus, the
CAA begins with a presumption that information submitted to EPA will be
available to be disclosed to the public. It then provides a narrow
exception to that presumption for information that ``would divulge
methods or processes entitled to protection as trade secrets.'' The CAA
further narrows this exception by excluding ``emission data'' from the
category of information eligible for confidential treatment. While the
CAA does not define ``emission data,'' EPA has done so by regulation at
40 CFR 2.301(a)(2)(i).
---------------------------------------------------------------------------
\169\ CAA section 114(c); 42 U.S.C. 7414(c).
---------------------------------------------------------------------------
EPA releases, on occasion, some of the information submitted under
CAA
[[Page 82831]]
section 114 to parties outside of the Agency of its own volition,
through responses to requests submitted under the FOIA,\170\ or through
civil litigation. Generally, when the Agency has information that it
intends to disclose publicly and that is covered by a claim of
confidentiality under FOIA Exemption 4, EPA has a process to make case-
by-case or class determinations under 40 CFR part 2. This process
includes an evaluation of whether such information is or is not
emission data, and whether it otherwise qualifies for confidential
treatment under FOIA Exemption 4.\171\ The regulations at 40 CFR 2.301
define emission data.
---------------------------------------------------------------------------
\170\ 5 U.S.C. 552.
\171\ 40 CFR 2.301(a)(2)(i).
---------------------------------------------------------------------------
In this action, EPA is applying the regulatory definition of
``emission data'' in 40 CFR 2.301(a)(2)(i) and finding that certain
categories of source information are not entitled to confidential
treatment because they qualify as emission data. By finalizing these
determinations, that information is subject to disclosure to the public
without further notice. As relevant to the determinations that are
being finalized in this action, a ``source'' for purposes of the
definition in 40 CFR 2.301 is generally the equipment covered by a
regulatory requirement, such as a refrigerant-containing appliance or
fire suppression equipment. EPA's broad general definitions of emission
data also exclude certain information related to products still in the
research and development phase or products not yet on the market except
for limited purposes. Thus, for example, 40 CFR 2.301(a)(2)(ii)
excludes information related to ``any product, method, device, or
installation (or any component thereof) designed and intended to be
marketed or used commercially but not yet so marketed or used.'' This
specific exclusion from the definition of emission data is limited in
time. Data related to this exclusion are not implicated in this
rulemaking because data reported under this rule relate to equipment
currently in use.
B. Data Elements Reported to EPA Under the Leak Repair Provisions
Consistent with EPA's commitment to transparency in program
implementation, EPA has reviewed the data elements in the chronically
leaking appliance report and the other ad hoc reports required under
the leak repair requirements to see if information under the umbrella
of those data elements could be considered entitled to confidential
treatment. EPA is treating certain data elements under the leak repair
provisions as not entitled to confidential treatment. Tables 2 and 3
outline individual data elements that will not be handled as
confidential, emission data, or otherwise not entitled to confidential
treatment. Additional information on these determinations is provided
in the memorandum titled Confidentiality Determinations and Emission
Data Designations for Data Elements in the Final Rule, which is
available in the docket for this action. There may be additional
reasons not to release individual data elements determined to not be
entitled to confidential treatment, for example if it is personally
identifiable information (PII). The Agency will separately determine
whether any data should be withheld from release for reasons other than
business confidentiality before data are released.
Table 2--Determination of Confidentiality Status for Data Elements
Related to Reports on Chronically Leaking Appliances
------------------------------------------------------------------------
Confidentiality status and
Description of data element rationale \a\
------------------------------------------------------------------------
Identification information (owner or No confidential treatment/
operator, facility name, facility Emission data.
address where appliance is located).
Appliance ID or description (for No confidential treatment/
facilities with multiple appliances). Emission data.
Refrigerant-containing appliance type No confidential treatment/
(comfort cooling or other, IPR, or Emission data.
commercial refrigeration).
Refrigerant type....................... No confidential treatment/
Emission data.
Full charge of appliance (pounds)...... No confidential treatment/
Emission data.
Annual percent refrigerant loss........ No confidential treatment/
Emission data.
Dates of refrigerant addition.......... No confidential treatment/
Emission data.
Amounts of refrigerant added........... No confidential treatment/
Emission data.
Date of last successful follow-up No confidential treatment/
verification test. Emission data.
Explanation of cause of refrigerant No confidential treatment/
losses (Narrative). Emission data.
Description of the repair actions taken No confidential treatment/
(Narrative). Emission data.
Whether a retrofit or retirement plan No confidential treatment/
has been developed for the appliance, Emission data.
and, if so, the anticipated date of
retrofit or retirement.
------------------------------------------------------------------------
\a\ EPA provides rationale of the confidentiality determination in the
memorandum titled Confidentiality Determinations and Emission Data
Designations for Data Elements in the Final Rule entitled ``Phasedown
of Hydrofluorocarbons: Management of Certain Hydrofluorocarbons and
Substitutes under Subsection (h) of the American Innovation and
Manufacturing Act of 2020'', which is available in the docket (EPA-HQ-
OAR-2022-0606) of this rulemaking at https://www.regulations.gov.
Table 3--Determination of Confidentiality Status for Data Elements
Related to Other Leak Repair Notifications and Extension Requests
------------------------------------------------------------------------
Confidentiality status and
Description of data element rationale \a\
------------------------------------------------------------------------
Extension of time to complete repairs: No confidential treatment/
Identification and address of the Emission data.
facility; the name of the owner or
operator of the refrigerant-containing
appliance; the leak rate; the method used
to determine the leak rate and full
charge; the date the refrigerant-
containing appliance exceeded the
applicable leak rate; the location of
leak(s) to the extent determined to date;
any repairs that have been performed thus
far, including the date that repairs were
completed; the reasons why more than 30
days (or 120 days if an industrial
process shutdown is required) are needed
to complete the repairs; and an estimate
of when the repairs will be completed. If
the estimated completion date is to be
extended, a new estimated date of
completion and documentation of the
reason for that change must be submitted
to EPA within 30 days of identifying that
the completion date must be extended.
[[Page 82832]]
Relief from the obligation to retrofit or No confidential treatment/
retire a refrigerant-containing Emission data.
appliance: The date that the requirement
to develop a retrofit or retirement plan
was triggered; the leak rate; the method
used to determine the leak rate and full
charge; the location of the leak(s)
identified in the leak inspection; a
description of repair work that has been
completed; a description of the repairs
that have not been completed; a
description of why repairs were not
conducted within the applicable time
frame; and a statement signed by an
authorized company official that all
identified leaks will be repaired and an
estimate of when those repairs will be
completed (not to exceed one year from
date of the plan).
Extension of time to complete the retrofit No confidential treatment/
or retirement of a refrigerant-containing Emission data.
appliance: Identification of the
refrigerant-containing appliance; name of
the owner or operator; the leak rate; the
method used to determine the leak rate
and full charge; the date the refrigerant-
containing appliance exceeded the
applicable leak rate; the location of
leak(s) to the extent determined to date;
any repairs that have been finished thus
far, including the date that repairs were
finished; a plan to finish the retrofit
or retirement of the refrigerant-
containing appliance; the reasons why
more than one year is necessary to
retrofit or retire the refrigerant-
containing appliance; the date of
notification to EPA; and an estimate of
when retrofit or retirement work will be
finished.
Notification of exclusion of purged No confidential treatment/
refrigerants that are destroyed from Emission data.
annual leak rate calculations: The
identification of the facility and a
contact person, including the address and
telephone number; a description of the
refrigerant-containing appliance,
focusing on aspects relevant to the
purging of refrigerant and subsequent
destruction; a description of the methods
used to determine the quantity of
refrigerant sent for destruction and type
of records that are being kept by the
owners or operators where the appliance
is located; the frequency of monitoring
and data-recording; and a description of
the control device, and its destruction
efficiency.
------------------------------------------------------------------------
\a\ EPA provides the rationale for the confidentiality determination in
the memorandum titled Confidentiality Determinations and Emission Data
Designations for Data Elements in the Final Rule entitled ``Phasedown
of Hydrofluorocarbons: Management of Certain Hydrofluorocarbons and
Substitutes under Subsection (h) of the American Innovation and
Manufacturing Act of 2020'', which is available in the docket (EPA-HQ-
OAR-2022-0606) of this rulemaking at https://www.regulations.gov.
Information contained within these data elements would
categorically not be eligible for confidential treatment because it is
either readily apparent or easily ascertainable by an outsider (e.g.,
owner name, facility name, facility address where appliance is located,
appliance ID or description, and appliance type (comfort cooling, IPR,
or commercial refrigeration)) or it is considered emission data under
40 CFR 2.301 (e.g., refrigerant type, full charge of appliance, annual
percent refrigerant loss, dates of refrigerant addition, amounts of
refrigerant added, date of last successful follow-up verification test,
explanation of cause of refrigerant losses, repair actions taken, and
whether a retrofit or retirement plan been developed for the appliance,
and, if so, the anticipated date of retrofit or retirement); or it fits
into both categories. Similarly, the items included in a request for an
extension for leak repair, request for relief from the obligation to
retrofit or retire an appliance, request for an extension of time to
complete the retrofit or retirement of an appliance, and notification
of exclusion of purged refrigerants that are destroyed from annual leak
rate calculations are likewise not eligible for confidential treatment
because this information is readily ascertainable or easily observable
by an outside entity, or is considered emission data under 40 CFR
2.301, or both. EPA notes that in these provisions, the source of the
emissions would be the regulated equipment, and in the case of all of
these notifications these data are necessary to determine the identity,
amount, frequency, concentration, or other characteristics (to the
extent related to air quality) of any emission that has been emitted by
the source and/or information necessary to determine the identity,
amount, frequency, concentration, or other characteristics (to the
extent related to air quality) of the emissions which, under the leak
repair provisions, the source was authorized to emit; and a general
description of the location and/or nature of the source to the extent
necessary to identify the source and to distinguish it from other
sources (including, to the extent necessary for such purposes, a
description of the device, installation, or operation constituting the
source).
C. Data Elements Related to Fire Suppression
As described in section IV.F of this document, EPA is finalizing
reporting requirements related to the use of regulated substances in
the fire suppression sector. These reporting requirements allow for the
monitoring of program implementation and of compliance with the
requirements.
EPA is requiring that certain entities in the fire suppression
sector provide data to EPA that are similar to the data they already
voluntarily collect and report to HEEP as mentioned in section IV.F.
Relevant reporting entities covered under this requirement include
entities that perform first fill of equipment, service (e.g., recharge)
equipment, and/or recycle regulated substances. Relevant entities
include companies, such as equipment manufacturers, distributors, agent
suppliers, or installers. EPA is finalizing that the covered entities
report annually: (1) The quantity of each regulated substance held in
inventory on-site broken out by recovered, recycled, and virgin; (2)
the quantity of material (the combined mass of regulated substance and
contaminants) by regulated substance sold and/or recycled for the
purpose of installation of new equipment and servicing (e.g., recharge)
of fire suppression equipment; (3) the total mass of each regulated
substance sold and/or recycled; and (4) the total mass of waste
products sent for disposal, along with information about the disposal
facility if waste is not processed by the reporting entity. Table 4
presents a more granular description of these data elements, together
with their confidentiality status. There may be additional reasons not
to release individual data elements determined to not be entitled to
confidential treatment, for example if they are PII. The Agency will
separately determine whether any data should be withheld from release
for reasons other than business confidentiality before data are
released.
[[Page 82833]]
EPA has determined that these data are emission data as described
at 40 CFR 2.301 because they provide a general description of the
location and/or nature of the source to the extent necessary to
identify the source and to distinguish it from other sources. As a
separate alternative basis, EPA has determined that these data are not
entitled to confidential treatment because they are not closely held as
confidential by the submitter. Additional information on the rationale
for these determinations is provided in a memorandum entitled
Confidentiality Determinations and Emission Data Designations for Data
Elements in the Final Rule, available in the docket for this action.
Table 4--Determination of Confidentiality Status for Data Elements
Related to Reports on Fire Suppression
------------------------------------------------------------------------
Confidentiality status and
Description of data element rationale \a\
------------------------------------------------------------------------
Identification information (owner name, No confidential treatment/
facility name, facility address where Emission data.
equipment is located).
For each regulated substance, quantity of No confidential treatment/
material (the combined mass of regulated Emission data.
substance and contaminants) sold for the
purpose of installation of new fire
suppression equipment and servicing and/
or repair of existing fire suppression
equipment.
For each regulated substance, quantity of No confidential treatment/
material (the combined mass of regulated Emission data.
substance and contaminants) in inventory
onsite for the purpose of installation of
new fire suppression equipment and
servicing and/or repair of existing fire
suppression equipment broken out by
recovered, recycled, and virgin.
Total mass of each regulated substance No confidential treatment/
sold for the purpose of installation of Emission data.
new fire suppression equipment and
servicing and/or repair of existing fire
suppression equipment.
Total mass of each regulated substance in No confidential treatment/
inventory onsite for the purpose of Emission data.
installation of new fire suppression
equipment and servicing and/or repair of
existing fire suppression equipment
broken out by recovered, recycled, and
virgin.
Total mass of waste products the reporting No confidential treatment/
entity sent for disposal, along with Emission data.
information about the disposal facility
if waste is not processed by the
reporting entity.
------------------------------------------------------------------------
\a\ EPA provides rationale of the confidentiality determination in the
memorandum titled Confidentiality Determinations and Emission Data
Designations for Data Elements in the Final Rule entitled ``Phasedown
of Hydrofluorocarbons: Management of Certain Hydrofluorocarbons and
Substitutes under Subsection (h) of the American Innovation and
Manufacturing Act of 2020'', which is available in the docket (EPA-HQ-
OAR-2022-0606) of this rulemaking at https://www.regulations.gov.
VI. What are the costs and benefits of this action?
A. Background
EPA is providing information on the costs and benefits for the
provisions related to managing regulated substances and their
substitutes in this rule. The analyses, presented in the Economic
Impact and Benefits TSD and the RIA addendum, are contained in the
docket to this rule and are intended to provide the public with
information on the relevant costs and benefits of this action and to
comply with Executive Orders. The RIA addendum includes estimates of
the SC-HFCs in order to quantify climate benefits, for the purpose of
providing useful information to the public and to comply with E.O.
12866. Although EPA is using the SC of HFCs for purposes of that
assessment, this action does not rely on those estimates as a record
basis for the Agency action, and EPA would reach the conclusions made
in this final rule even in the absence of the social costs of HFCs.
The climate benefits and compliance costs stemming from this final
rule include those related to:
(1) the provisions on leak repair, leak detection, ALD systems, and
recordkeeping and reporting related to these provisions;
(2) the amendments to the RCRA hazardous waste regulations;
(3) requirements regarding the management of disposable cylinders
for HFCs;
(4) requiring the servicing and/or repair of certain refrigerant-
containing equipment with reclaimed HFCs, along with recordkeeping
requirements verifying that reclaimed refrigerant contains no more than
15 percent, by weight, virgin HFCs; and
(5) minimizing emissions of HFCs from certain types of fire
suppression equipment including the service, repair, or initial
charging of such equipment with recycled HFCs.
As detailed in the RIA addendum, EPA finds that in some cases
specific provisions of the rule would result in compliance costs for
industry, while in other cases they may result in cost savings.
Provisions that result in a net cost savings may still be considered
part of the economic benefits attributable to this rule, under the
assumption that these activities would not otherwise be undertaken at
the same scale or rate of adoption in the absence of regulation. More
discussion of these assumptions and supporting literature may be found
in section 3.2.2 of the Allocation Framework Rule RIA.
From the Agency's analyses, EPA provides the costs and benefits
associated with the management of regulated substances and their
substitutes under the AIM Act as well as those associated with the RCRA
alternative standard requirements for hazardous waste. These analyses--
as summarized below--highlight economic cost and benefits, including
benefits from leak repair and emissions reductions.
Given that the provisions EPA is finalizing concern HFCs, which are
subject to the overall phasedown of production and consumption under
the AIM Act, EPA relied on its previous estimates of the impacts of
already finalized AIM Act rules as a starting point for the assessment
of costs and benefits of this rule. Specifically, the Allocation
Framework Rule (86 FR 55116, October 5, 2021), the 2024 Allocation Rule
(88 FR 46836, July 20, 2023), and the 2023 Technology Transitions Rule
(88 FR 73098, October 24, 2023) are assumed as a baseline for this
rule. In this way, EPA analyzed the incremental impacts of this rule,
attributing benefits only insofar as they are additional to those
already assessed in the Allocation Framework Rule RIA, the 2024
Allocation Rule RIA Addendum, and the 2023 Technology Transitions Rule
RIA Addendum (collectively referred to as ``Allocation and 2023
Technology Transitions Rules'' in this discussion). Climate benefits
presented in the RIA addendum are based on changes (increases or
reductions) in HFC emissions compared to the 2023 Technology
Transitions Rule
[[Page 82834]]
compliance case \172\ (i.e., after consideration of the Allocation
Framework Rule, the 2024 Allocation Rule, and the 2023 Technology
Transitions Rule).
---------------------------------------------------------------------------
\172\ As detailed in the 2023 Technology Transitions RIA
Addendum, EPA analyzed both a base case and high additionality
scenario towards compliance with that rule. The discussion here
utilizes the 2023 Technology Transitions high additionality case for
comparison purposes to provide a conservative assessment. Further
details are provided in the RIA addendum for this rule and the
Economic Impact and Benefits TSD.
---------------------------------------------------------------------------
EPA estimated the climate benefits for this rule using a set of
estimates of the social cost of each HFC (SC-HFC, or collectively
referred to as SC-HFCs) that is affected by the rule. The SC-HFCs is
the monetary value of the net harm to society associated with a
marginal increase in HFC emissions in a given year, or the net benefit
of avoiding that increase. In principle, the SC-HFC includes the value
of all climate change impacts (both negative and positive), including
(but not limited to) changes in net agricultural productivity, human
health effects, property damage from increased flood risk and natural
disasters, disruption of energy systems, risk of conflict,
environmental migration, and the value of ecosystem services. The SC-
HFC, therefore, reflects the societal value of reducing emissions of
the gas in question by one metric ton and is the appropriate value to
use in conducting benefit-cost analyses of policies that affect HFC
emissions. In practice, data and modeling limitations restrain the
ability of SC-HFC estimates to include all physical, ecological, and
economic impacts of climate change, implicitly assigning a value of
zero to the omitted climate damages. The estimates are, therefore, a
partial accounting of climate change impacts and likely underestimate
the marginal benefits of abatement.
The monetization of climate benefits in this analysis uses the same
HFC-specific SC-HFC estimates as used in the proposal RIA and in the
estimation of the benefits in prior AIM Act analyses including the
Allocation Framework Rule RIA. That is, for the primary benefits
analysis in the final RIA addendum, EPA uses SC-HFC estimates that are
consistent with the methodology underlying estimates of the social cost
of other GHGs (carbon dioxide (SC-CO2), methane (SC-
CH4), and nitrous oxide (SC-N2O)), collectively
referred to as SC-GHG, presented in the Technical Support Document:
Social Cost of Carbon, Methane, and Nitrous Oxide Interim Estimates
under Executive Order 13990 published in February 2021 by the
Interagency Working Group on the Social Cost of Greenhouse Gases
(IWG).\173\ These SC-GHG estimates were recommended for use until
updated estimates are available that reflect recent advances in the
scientific literature on climate change and its economic impacts and
incorporate recommendations made by the National Academies of Science,
Engineering, and Medicine.\174\ As a member of the IWG involved in the
development of the February 2021 SC-GHG TSD, EPA agrees with the
explanation in the TSD that it is appropriate for agencies to use the
same set of four values drawn from the SC-GHG distributions based on
three discount rates as were used in regulatory analyses between 2010
and 2016 and subject to public comment (2.5 percent, three percent, and
five percent), plus a fourth value, selected as the 95th percentile of
estimates based on a three percent discount rate. EPA also agrees with
the explanation provided in the February 2021 TSD that the use of the
social rate of return on capital (seven percent under the 2003 Office
of Management and Budget (OMB) Circular A-4 guidance) to discount the
future benefits of reducing GHG emissions inappropriately
underestimates the impacts of climate change for the purposes of
estimating the social cost of GHGs. For purposes of capturing
uncertainty around the SC-HFC estimates applied in this analysis, we
emphasize the importance of all four values for each HFC affected by
the rule.
---------------------------------------------------------------------------
\173\ Interagency Working Group on Social Cost of Greenhouse
Gases, United States Government (IWG 2021), 86FR 24669, available at
https://www.whitehouse.gov/wp-content/uploads/2021/02/TechnicalSupportDocument_SocialCostofCarbonMethaneNitrousOxide.pdf.
\174\ National Academies of Sciences, Engineering, and Medicine.
Valuing Climate Damages: Updating Estimation of the Social Cost of
Carbon Dioxide. The National Academies Press, 2017, doi: 10.17226/
24651.
---------------------------------------------------------------------------
In addition, in an Appendix to the final RIA addendum, EPA presents
the monetized climate benefits of the final rule using a new set of SC-
HFC estimates that reflects recent advances in the scientific
literature and addresses the National Academies' updating
recommendations. The methodology underlying these updated SC-HFC
estimates is consistent with the SC-GHG estimates used in EPA's 2023
RIA for the Final Oil and Gas New Source Performance Standards (NSPS)/
Emissions Guidelines (EG) Rulemaking, ``Standards of Performance for
New, Reconstructed, and Modified Sources and Emissions Guidelines for
Existing Sources: Oil and Natural Gas Sector Climate Review.''
Specifically, the draft updated methodology incorporates new literature
and research consistent with the National Academies' near-term
recommendations on socioeconomic and emissions inputs, climate modeling
components, discounting approaches, and treatment of uncertainty, and
an enhanced representation of how physical impacts of climate change
translate to economic damages in the modeling framework based on the
best and readily adaptable damage functions available in the peer
reviewed literature. As EPA noted in the proposal for this rule, EPA
presented and solicited public comment on this updated methodology
within a sensitivity analysis in the regulatory impact analysis of
EPA's November 2022 supplemental proposal for oil and natural gas
emissions standards.\175\ EPA also conducted an external peer review of
the accompanying technical report that explains the methodology
underlying the new set of estimates. Complete information about the
public comments and external peer review, including the peer reviewer
selection process, the final report with individual recommendations
from peer reviewers, and EPA's response to both public comments and
peer reviewer recommendations is available on EPA's website,\176\ as
well as in the RIA addendum for this rule.
---------------------------------------------------------------------------
\175\ Standards of Performance for New, Reconstructed, and
Modified Sources and Emissions Guidelines for Existing Sources: Oil
and Natural Gas Sector Climate Review (87 FR 74702, December 6,
2022).
\176\ Available at: https://www.epa.gov/environmental-economics/scghg.
---------------------------------------------------------------------------
B. Estimated Costs and Benefits of the Final Rule
1. Total Incremental Costs and Benefits of the Final Rule
As discussed above, the HFC Allocation and 2023 Technology
Transitions Rules serve as the status quo from which incremental
impacts of this final rule are evaluated. As detailed in the RIA and
subsequent RIA addenda for these previous rules, EPA modeled multiple
potential compliance pathways to meeting the requirements of these
rulemakings. In one scenario, EPA assumed that industry would comply
with previous AIM Act regulations as outlined in the 2023 Technology
Transitions Rule RIA Addendum \177\ without undertaking some
improvements to leak repair and refrigerant recovery practices in
[[Page 82835]]
response to these previous rulemakings and as a means of achieving the
overall HFC phasedown cap. Because these improvements are not required
to meet previous AIM Act regulations, in the Agency's base case
scenario for the estimated incremental impacts of the ER&R rule, EPA
has also included them in the baseline. However, since whether industry
undertakes such improvements is ultimately uncertain, EPA has also
provided an alternative scenario in the RIA addendum where some
improved leak repair and refrigerant recovery practices are included in
the baseline, thus illustrating a potential lower bound of incremental
impacts.
---------------------------------------------------------------------------
\177\ In the 2023 Technology Transitions RIA Addendum, EPA
analyzed a ``base case'' and a ``high additionality'' scenario. The
former is used to analyze the base case scenario for this rule. See
the RIA addendum and the Economic Impact and Benefits TSD for
additional details.
---------------------------------------------------------------------------
The present value of the net benefits of the final ER&R rule is
equal to the sum of the net costs or benefits of the various provisions
in each year from 2026 through 2050, discounted to 2024 (the year in
which this rule is being finalized). In the base case, EPA estimates
the provisions of this rule will result in cumulative incremental
emissions reductions of approximately 120 MMTCO2e from 2026
through 2050, and the present value of economic benefits of avoiding
the damages associated with those emissions is estimated at $8.4
billion (discounted to 2024 using a three percent discount rate).\178\
EPA estimates the present value of compliance costs associated with
this rulemaking to be $1.5 billion at a two percent discount rate, $1.3
billion at a three percent discount rate, or $0.9 billion at a seven
percent discount rate. When including the economic benefits of avoided
climate damages, the net benefits of the rule are therefore estimated
to range from $6.9 billion (two percent discount rate for compliance
costs) to $7.5 billion (seven percent discount rate for compliance
costs). These estimates are summarized in Table 5 below along with
annual, undiscounted values for select years.
---------------------------------------------------------------------------
\178\ Unless stated otherwise, costs and benefits in this
section are presented in 2022 dollars.
Table 5--Summary of Undiscounted Annual Values, Present Values, and Equivalent Annualized Values Select Years for the 2026 Through 2050 Timeframe for
Estimated Compliance Costs, Benefits, and Net Benefits for the ER&R Rule (Millions of 2022$, Discounted to 2024)--Base Case Scenario a b c d e f g
--------------------------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------------------------------
Year Climate
benefits Costs
Net benefits
--------------------------------------------------------------------------------------------------------------------------------------------------------
2026......................................................... $428 $92
$336
2030......................................................... 676 102
574
2035......................................................... 613 86
526
2040......................................................... 466 67
399
2045......................................................... 315 51
264
2050......................................................... 263 52
211
--------------------------------------------------------------------------------------------------------------------------------------------------------
Discount rate 3% 2% 3% 7% 2% 3% 7%
--------------------------------------------------------------------------------------------------------------------------------------------------------
Present value \f\............................................ $8,356 $1,499 $1,335 $884 $6,857 $7,021 $7,471
Equivalent annualized value (EAV) \f\........................ 480 77 77 76 403 403 404
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Benefits include only those related to climate. Climate benefits are based on changes (reductions) in HFC emissions and are calculated using four
different estimates of the social cost of HFCs (SC-HFCs): model average at 2.5 percent, three percent, and five percent discount rates; 95th
percentile at three percent discount rate. For presentational purposes of this table, the benefits associated with the average SC-HFC are shown at a
three percent discount rate. More details can be found in the RIA addendum for the final rule.
\b\ Rows may not appear to add correctly due to rounding.
\c\ The annualized present value of costs and benefits are calculated as if they occur over a 25-year period.
\d\ The present value (PV) for the net benefits column is found by taking the difference between the PV of climate benefits at three percent and the PV
of costs discounted at seven percent, three percent or two percent. Because the SC-HFC estimates reflect net climate change damages in terms of
reduced consumption (or monetary consumption equivalents), the use of the social rate of return on capital (seven percent under OMB Circular A-4
(2003)) to discount damages estimated in terms of reduced consumption would inappropriately underestimate the impacts of climate change for the
purposes of estimating the SC-HFC.
\e\ Costs represent compliance with the regulations and include potential savings from reducing refrigerant purchases. See the RIA addendum and the
Economic Impact and Benefits TSD for additional information.
\f\ Present value and EAV are for the years 2026 through 2050.
\g\ Benefits presented in this table do not include potential savings from amended RCRA regulations, which are separate from the regulations under
subsection (h)(1) of the AIM Act. See Table 6 below for an estimate of combined AIM Act and RCRA net benefits.
The provisions that contribute to the total net benefits of the
final rule are those covering leak inspections, leak repair,
installation of ALD systems, reduced emissions and use of recycled HFCs
in the fire suppression sector, management and ultimate evacuation of
disposable cylinders, and the required servicing and/or repair of
certain refrigerant-containing equipment with reclaimed HFCs, and all
associated recordkeeping and reporting requirements. Estimated costs,
benefits, and resulting net benefits are provided by type of provision
in Table 6 below.
Table 6--Summary of Present Value Costs, Benefits, and Net Benefits by Regulatory Provision (Millions of 2022$, Discounted to 2024)--Base Case Scenario
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Climate
Provision benefits Costs (savings) (2%) Costs (savings) (3%) Costs (savings) (7%) Net benefits (3% Net benefits (3% Net benefits (3%
(3%) benefits, 2% costs) benefits, 3% costs) benefits, 7% costs)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Leak Repair And ALD.............. $6,176 $1,285................. $1,146................. $760................... $4,891................. $5,031................. $5,417.
Fire Suppression................. 14 $15.................... $13.................... $7..................... ($1)................... $1..................... $7.
Cylinder Management.............. 2,165 ($195)................. ($169)................. ($101)................. $2,360................. $2,335................. $2,266.
Use of Reclaimed HFCs for ........ $43.................... $38.................... $23.................... ($43).................. ($38).................. ($23).
Servicing \a\.
Recordkeeping & Reporting........ ........ $350................... $308................... $195................... ($350)................. ($308)................. ($195).
Total (AIM Act) \b\.............. 8,356 $1,499................. $1,335................. $884................... $6,857................. $7,021................. $7,471.
[[Page 82836]]
RCRA Alternative Standard ........ $0 to ($40)............ $0 to ($35)............ $0 to ($22)............ $0 to $40.............. $0 to $35.............. $0 to $22.
Requirements \c\.
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Total (AIM Act + RCRA) \b\... ........ $1,459 to $1,499....... $1,300 to $1,335....... $863 to $884........... $6,857 to $6,897....... $7,021 to $7,056....... $7,471 to $7,493.
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\a\ As detailed in the RIA addendum, reclaim requirements may lead to additional emissions reductions by inducing increased recovery of refrigerant at servicing and disposal that may otherwise
be released or vented. In the base case scenario, EPA does not estimate an increase in these avoided emissions beyond baseline assumptions. See the RIA addendum for additional analysis
related to this assumption.
\b\ Rows may not appear to add correctly due to rounding.
\c\ RCRA alternative standard requirements are part of the RCRA regulations, which are separate from the regulations under subsection (h)(1) of the AIM Act. Potential RCRA-related benefits
presented in this table are included here for informational purposes.
2. Estimating Costs and Benefits Based on Affected Equipment and
Appliances
As detailed in the RIA addendum, the number, charge sizes, leak
rates, and other characteristics of affected RACHP and fire suppression
equipment, and the benefits realized through the requirements of this
rulemaking, were estimated using EPA's Vintaging Model.\179\ For
example, for RACHP equipment covered by the rule's leak repair and ALD
system provisions, the requirements are assumed to lead to leaking
systems being repaired earlier than they otherwise would have been,
leading to reduced emissions of HFCs. The reduction in HFC emissions
results in climate benefits due to reduced climate forcing as
calculated by multiplying avoided emissions by the social cost of each
SC-HFC.
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\179\ EPA. 2024. EPA's Vintaging Model representing the
Allocation Framework Rule as modified by the 2024 Allocation Rule
RIA Addendum. VM IO file_v4.4_02.04.16_Final TT Rule 2023 High
Addition.xls.
---------------------------------------------------------------------------
In the years 2026 through 2050, the final rule's leak repair and
ALD system provisions in particular would prevent an estimated 88.5
MMTCO2e in HFC emissions, and the present value of the
economic benefit of avoiding the damages associated with those
emissions is estimated at $6.2 billion (in 2022 dollars, discounted to
2024 using a three percent discount rate). These benefits, as well as
those resulting from other provisions contained in the final ER&R rule,
are estimated to decrease over time due to the HFC phasedown and the
transition out of the higher-GWP HFCs, lowering the average GWP of
avoided future emissions. For example, it is estimated that the leak
repair and ALD system provisions would prevent approximately 5.6
MMTCO2e of HFC emissions in 2030, which decreases to
approximately 3 MMTCO2e of HFC emissions in 2040.
Some provisions contained in the final rule are also estimated to
yield cost savings.\180\ For example, reducing HFC emissions due to
fixing leaks earlier would also be anticipated to lead to savings for
system owner/operators, as less new refrigerant would need to be
purchased to replace leaked refrigerant. In 2026, it is estimated that
the proposed leak repair and ALD system provisions would lead to
savings of approximately $19.5 million (in 2022 dollars).
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\180\ As discussed in section I.C. of this preamble, the RIA
addendum for this rule assumes that in some cases cost savings may
accrue to industry as a result of regulatory measures. In some
cases, measures are assumed to result in a net cost to regulated
entities, while in other cases, measures are assumed to result in a
net savings. More details on these assumptions are included in the
RIA addendum. For additional discussion on market failures that may
lead to forgone savings to industry in the absence of regulatory
measures, please see section I.C. of this preamble as well as
section 3.2.2 of the Allocation Rule RIA.
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The compliance costs of the leak repair and inspection requirements
in particular include the costs of purchasing and operating ALD
systems, costs of required inspections, and the costs of repairing
leaks earlier than would have been necessary without the provisions.
When combined with the refrigerant savings, in the years 2026 through
2050, these provisions would result in net compliance costs with a
present value estimated at $1.15 billion (2022 dollars, discounted to
2024 at a three percent discount rate). More details on underlying
assumptions for these estimates can be found in the RIA addendum for
the final rule and its accompanying appendices.
Comment: One commenter stated that the regulations put in place by
EPA will provide health benefits to technicians and their consumers.
The commenter also stated that there will be environmental benefits
since the HFC Phasedown Program encourages recycling HFCs to reduce GHG
production rates.
The commenter also noted that for this transition, States are
providing incentive programs to help companies adjust to the new
standards proposed by EPA. The commenter mentioned that California and
Delaware have programs to increase the use of low-GWP refrigerants. The
commenter stated that this is a great way to show support for the
proposed rule because it is evident that businesses will lose a
significant portion of funding with the transition to eco-friendly
refrigerants.
The commenter further stated that they wished the proposed rule had
more data on the environmental and health impacts of not switching to
more eco-friendly HFCs instead of ``briefly'' discussing it.
Response: EPA acknowledges the commenter's support for this rule.
EPA's modeling for this rule focused on how the rule would impact GHG
emissions and the HFC marketplace. The Agency acknowledges the comments
on the environmental benefits of the HFC Phasedown Program and moreover
the global HFC phasedown under the Montreal Protocol's Kigali Amendment
but notes that this is outside the scope for this rulemaking, as EPA
did not propose to revise regulations to phase down HFCs in this
rulemaking. In response to comments on State HFC-management programs,
EPA acknowledges the presence of state-level HFC management programs
and has referenced some of those programs at various points in this
rulemaking, for informational purposes and additional context. For
example, EPA cited CARB's refrigerant management program when
discussing charge-size thresholds for ALD systems in section IV.D.1.
EPA further notes that requirements and incentives of such State
programs are also outside the scope of this rulemaking, as those are
developed and implemented by State regulators rather than EPA.
Comment: One commenter stated that the costs in EPA's costs and
benefits analysis for entering records is grossly underestimated, and a
more accurate estimate would be 10 minutes. The commenter asserted that
the 10-minute
[[Page 82837]]
estimate includes the assumption that the service contractor is
recording entries correctly the first time and the record-keeping
software loads immediately. The commenter additionally stated that due
to the number of small appliances that will be added to the
recordkeeping burden, recordkeeping burden will increase by 50 to 100
percent.
Response: EPA notes that the commenter is not specific in regard to
which particular record entry cost assumption they claim is an
underestimate. EPA has included estimated recordkeeping and reporting
costs as a part of total estimated compliance costs in the RIA
addendum. These estimates include cost burden assumptions derived from
the ICR (EPA ICR Number 2778.01, https://www.regulations.gov/document/EPA-HQ-OAR-2022-0606-0025), which estimated labor hours ranging from
minutes to up to 40 hours per requirement, depending on the specific
recordkeeping or reporting requirement. EPA has not received specific
data or information indicating that any of these assumptions need to be
revised upward in any particular case, and the comment does not provide
any information or data to support the assertion that 10 minutes would
be a more accurate assumption for the estimate with which they disagree
with. Nonetheless, based on the provisions EPA is finalizing in this
rule, the Agency has adjusted the ICR for the final rule accordingly
(EPA ICR Number 2778.02), available in the docket for this rulemaking.
Regarding the recordkeeping burden for small appliances, EPA
acknowledges that the inclusion of refrigerant-containing appliances
with charge sizes of 15 pounds or more for the leak repair provisions
in this rulemaking may increase recordkeeping burden compared to the
recordkeeping burden if the ER&R regulations were to only cover
equipment with charge sizes of 50 pounds or more. EPA's rationale for
the 15-pound charge size is discussed in section IV.C.2 of the
preamble.
Comment: Another commenter expressed concern that if finalized in
its current form, the proposed rule would place significant and
disproportionate burdens on the grocery industry and other retailers,
and that new compliance and administrative burdens created by the
proposed rule would lead to increased costs of doing business, which
would ultimately be passed on to consumers. The commenter stated that
the proposed new requirements would have significant costs that are not
accounted for in the Economic Impact and Benefits TSD or in the RIA
addendum to the Allocation Framework Rule RIA. The commenter noted
several drivers of compliance costs:
Tight compliance timeframes that will necessitate
allocation of personnel and financial resources.
Increased demand for and limited supply of reclaimed and/
or recycled HFCs.
Increased demand for and limited supply of ALD systems.
The installation, training, and maintenance costs
associated with ALD installation.
The need to re-train technicians and maintenance
personnel.
Required retrofit or retirement of appliances with leaks
that cannot be repaired in accordance with the proposed repair
standard.
The commenter further stated that the Technology Transitions
regulatory program will place a significant strain on supply chains and
technicians, driving up costs, and that EPA's proposal to impose
additional sweeping, mandatory system repair requirements in the near
future will further drive a surge in demand for technicians, equipment,
and refrigerants. The commenter added that the proposed new
requirements, and their varying compliance timeframes, applicability
thresholds, recordkeeping, and reporting requirements, will introduce
administrative complexity, and that this additional burden is
particularly pronounced for the commenter's members which are managing
compliance for different sites in multiple States, each with different
types of regulated appliances.
The commenter further asserted that the requirements in the
proposed rule were unnecessary and would add significant regulatory
burdens for little practical gain. The commenter suggested that as the
phasedown will create a limited supply of HFCs in future years,
businesses will already be well-incentivized to conduct repairs,
minimize leaks, and use reclaimed HFCs, meaning that the regulatory
mandates proposed are unnecessary. The commenter claimed that the costs
and administrative burdens associated with the proposed rule are not
justified for equipment that will be obsolete by the end of the HFC
phasedown mandated in the AIM Act.
Response: Congress directed the Agency in subsection (h)(1) of the
AIM Act to promulgate certain regulations, and that the authority
conveyed under subsection (h) is separate from, but in addition to,
authority Congress conveyed under other provisions of the Act. EPA is
establishing the ER&R program to implement subsection (h), consistent
with the directive given by Congress. Further, as discussed in greater
detail throughout this preamble, this rulemaking is designed to serve
the purposes identified in subsection (h)(1) of the AIM Act of
maximizing reclamation, minimizing the release of regulated substances
from equipment, and ensuring the safety of technicians and consumers.
EPA did not propose and is not making any changes to the 2023
Technology Transitions Rule; comments with respect to the costs of that
rule are out of scope for this rule and require no further response.
However, EPA notes that the updated analysis of the costs of the ER&R
Rule incorporated the effects of the 2023 Technology Transitions Rule
as the baseline from which incremental costs and benefits were
estimated.
While EPA has included estimates of the costs and benefits of this
rulemaking in the RIA addendum (and reevaluated the costs and benefits
of the final rule under two principal scenarios and provided
sensitivity analyses around these estimates), to provide the public
with information on the relevant costs and benefits of this action and
to comply with Executive Orders, that analysis does not form a basis or
rationale for any of the provisions promulgated in this rulemaking. To
the extent that EPA has considered the results of analyses of the
impacts of the provisions of the ER&R program in this rulemaking, those
results are reflected in the Economic Impact and Benefits TSD. Further,
while certain provisions of the AIM Act do expressly mention the
consideration of certain costs, such as subsections (i)(4)(B) and
(i)(4)(C), in this rulemaking, the Agency is neither addressing those
provisions nor reopening regulations already promulgated under that
separate authority. Nothing in the AIM Act requires EPA to consider
costs or identify any particular cost-based metric or analytical
approach for use in evaluating and establishing regulations to
implement subsection (h). Subsection (h)(1) does, however, identify
particular purposes that the regulations promulgated under that
subsection are to serve, and EPA has focused on serving those purposes
in adopting the requirements in this rulemaking. EPA further responds
that many of the potential drivers of compliance costs cited by the
commenter are uncertain; however, EPA has nonetheless endeavored to
include such drivers in its assessment of compliance costs to the
extent practicable and based on best available data as detailed in the
Economic Impact and Benefits TSD. For
[[Page 82838]]
example, regarding costs associated with ALD systems, as noted in the
RIA addendum, EPA has included the capital expenditure to purchase the
hardware (e.g., detector, sensors), plus installation costs and
operations and maintenance costs associated with annual system
maintenance, certification, and data tracking/storage. EPA has also
included potential costs associated with retrofit or retirement of
equipment with leaks that cannot be repaired, as detailed in the RIA
addendum and Economic Impact and Benefits TSD. Finally, regarding the
need to re-train technicians and personnel, EPA has included labor
costs associated with ALD, leak inspection and repair, cylinder
management, and fire suppression activities required by this rule. EPA
acknowledges that regular training is an integral part of the job
requirements of affected technicians and personnel. The comments did
not provide, and EPA is not aware of, data indicating that training
requirements contained in this rule would translate into increased
labor hours or labor rate assumptions beyond those already included in
the analysis contained in the RIA addendum and Economic Impact and
Benefits TSD.
Regarding compliance timeframes, EPA notes that for many of the
provisions contained in the final rule they have been extended relative
to those contained in the proposed rulemaking, which has the effect of
partially mitigating potential fast cash outlays related to compliance
deadlines, allowing such costs to be spread over additional time, and
allowing additional time for identifying suppliers, obtaining
equipment, adjusting supply chains, or acquiring technicians and other
personnel training as needed, as well as other steps that are necessary
for compliance.
Regarding supply of reclaimed HFCs, EPA has provided data based on
results from its Vintaging Model in both the proposed and final rule
RIA addendum on the amount of reclaimed refrigerant that would be
required to meet the requirements of the rule. EPA notes that this
amount is significantly lower in the final rule, principally because
the Agency is not finalizing, at this time, requirements for the
initial charge of refrigerant-containing equipment with reclaimed HFCs
and also because EPA is not finalizing, at this time, the servicing
and/or repair of refrigerant-containing equipment in one of the four
proposed RACHP subsectors. Although EPA responds to one comment
providing analysis on supply of reclaimed refrigerants in section
IV.E.1, this commenter did not provide data to EPA indicating that
there would be a shortfall in supply of reclaimed refrigerant, nor does
EPA anticipate such a shortfall based on estimated supply and demand of
refrigerant using the Vintaging Model. For more information regarding
supply of reclaimed HFCs, see responses to comments in section IV.E.1
and IV.E.2.
Regarding supply of ALD systems, EPA has extended the compliance
deadline for the installation and use of ALD systems for both new and
existing IPR and commercial refrigeration appliances above 1,500
pounds. EPA has also narrowed the scope of affected existing IPR and
commercial refrigeration refrigerant-containing appliances to such
appliances that were installed after January 1, 2017. This will ensure
that there is an adequate supply of ALD systems for entities affected
by the ALD installation and use requirements in this final rule.
Further discussion on the supply of ALD systems can be found in section
IV.D.1.
Although the 2023 Technology Transitions Rule is not addressed or
reopened in this final rule, as the commenter claimed, provisions of
that rule may lead retailers in the future to use alternatives that
would not be subject to the provision of this rule. (e.g., alternatives
that do not include a regulated substance or otherwise have a GWP equal
to or below 53). Based on its analysis, EPA finds that the 2023
Technology Transitions Rule has the effect of reducing estimated
compliance costs associated with the final ER&R Rule. As industry
transitions away from higher-GWP HFCs in response to the 2023
Technology Transitions Rule it is expected to reduce the overall amount
of equipment effected by the final ER&R Rule requirements (i.e.,
appliances that use an HFC or substitute for an HFC with a GWP greater
than 53). However, EPA disagrees with the commenter's assertion that
the requirements are unnecessary and notes that the justification for
the requirements are explained in the sections of the preamble
discussing the respective requirements, as well as in the relevant
sections of the proposal. EPA also disagrees with the commenters'
assertions that the requirements will result in little practical gain.
EPA's analysis describing the benefits of these requirements can be
found in the RIA addendum and the Economic Impact and Benefits TSD for
this rule.
EPA also disagrees with the commenter's assertions that equipment
covered under this rule's provisions will become obsolete due to the
HFC phasedown under the AIM Act, and that the rule's provisions are
therefore adding unnecessary regulatory burden without providing
additional benefits. Provisions promulgated in this rulemaking have
compliance dates beginning between 2026-2030 and cover a broad range of
new and existing equipment that will use regulated substances or
substitutes for a regulated substance with GWPs greater than 53 after
the last phasedown step is scheduled to occur in 2036. While these
compliance dates overlap with the compliance timelines established for
new equipment under the 2023 Technology Transitions Rule, some new
refrigerant-containing equipment purchased after the applicable
compliance date for the sector or subsector in the 2023 Technology
Transitions Rule will still use regulated substances or substitutes
with GWPs greater than 53 and thus will be subject to the regulations
established under the ER&R program. Additionally, existing equipment
that is not subject to requirements under the 2023 Technology
Transitions Rule will still be subject to the ER&R program's provisions
until the end of its useful life. Thus, by promulgating regulations
intended to maximize reclamation and minimize release of HFCs from
equipment in this rulemaking, EPA is addressing equipment, practices,
and activities that are not specifically addressed under other AIM Act
programs.
Comment: Two commenters opposed EPA's use of climate benefits in
the analysis. The commenters claimed that the purpose of the AIM Act is
to promote American manufacturing, not to regulate GHGs, and stated
that the statute itself never mentions GHGs or climate change, which
the commenters stated was for good reason, since the divisiveness of
climate change policy prevented Congress and the Executive from
reaching consensus on any policy explicitly directed at climate change.
Instead, the commenters asserted that the law (as evident in the title
`` `Innovation and Manufacturing' '') focused on the economic benefits
to certain U.S. chemical manufacturers, including fostering innovation
in the chemicals industry. The commenters further pointed to EPA's
statement that the social cost of carbon is not a record basis for the
Agency action, which they alleged to be an acknowledgement that EPA
cannot legally take climate benefits into account. One of the
commenters stated that EPA expressly disclaims any reliance on the
``High Additionality'' scenario as the legal basis of the proposed
rule.
This commenter further claimed that there is zero benefit from
mandating the
[[Page 82839]]
use of reclaim gas in various RACHP subsectors, citing Table 8 of the
proposed rule, and that EPA glosses over the lack of any benefit in its
cost-benefit analysis for the reclaim provisions. The commenter further
claimed that contrary to its duty to use reasoned decision making, EPA
fails to engage in any substantive discussion of why an agency would
adopt a rule (such as the reclaim mandate) that has no benefits that
the government can legally promote. The commenter claimed that the AIM
Act is not a climate law, that climate change is not part of the AIM
Act, and that climate change cannot be considered as a justification
for implementing regulations under the statute. The commenter concluded
that EPA has failed to explain why a regulation with no economic or
environmental benefit should be added to the regulatory burden on the
refrigerant sector, and that the rule is arbitrary and capricious.
The other commenter stated that EPA's cost-benefit analysis
improperly considers assumed climate benefits and foreign benefits
while failing to consider overwhelming cost-benefit imbalances to U.S.
manufacturers, and that adequate data was not gathered from impacted
industries. The commenter asserted that climate benefits were not
Congress' goal, that climate change is not part of the AIM Act and may
not be considered as a justification for implementing regulations under
the statute, and that given the statutes [sic] sole focus on American
manufacturing, EPA's use of cost-benefit analysis of climate change
benefits to justify the refrigerant management requirements is based on
improper considerations. Accordingly, the commenter stated EPA should
remove the discussion of climate benefits from the rulemaking record
and rely solely on the core cost-benefit considerations, which they
asserted overwhelmingly militate against the proposed rulemaking. The
commenter stated that the rulemaking proposal makes clear that the
costly burden on refrigeration users would not be justified, except if
EPA uses the asserted benefits of climate change as a justification for
the rule. Further, the commenter claimed that EPA may not use supposed
climate benefits for foreign countries or residents of foreign
countries as a basis for regulation of domestic industries, citing
E.E.O.C. v. Arabian Am. Oil Co., 499 U.S. 244, 254 (1991).
The commenter also claimed that EPA's cost-benefit analysis is
incomplete, and that since the purpose of the AIM Act, and therefore
EPA's rulemaking, is focused solely on American innovation and
manufacturing, EPA must assess the costs and benefits of the proposed
HFC management rule in relation to the proposed rule's potential impact
on the U.S. manufacturing sector. The commenter stated that this
analysis should include an assessment of how certain chemical producers
of HFC substitutes are benefiting from the AIM Act in general and the
management rule in particular, and that EPA's analysis should disclose
how the chemical industry that produces substitute chemicals as
replacements for HFCs currently used in IPR and other refrigeration
equipment might benefit as a result of the government's intervention
into the refrigerant sector through product bans. A third commenter
stated that the value proposition of implementing the proposed rule is
significant but suggested that a further analysis of the $3.7 billion
that EPA estimated in total costs is needed.
Response: With regard to reasons explained in greater detail in the
prior response and elsewhere in this rulemaking, the Agency has
included estimates of the costs and benefits of this rulemaking in the
RIA addendum (and reevaluated the costs and benefits of the final rule
under two principal scenarios and provided sensitivity analyses around
these estimates), to provide the public with information on the
relevant costs and benefits of this action and to comply with Executive
Orders, that analysis does not form a basis or rationale for any of the
provisions EPA is promulgating in this rulemaking. The Agency did not
rely on the ``High Additionality'' scenario performed for the proposed
rule, just as it did not rely on any other scenario performed, as a
basis or rationale for this rulemaking. Likewise, we are not relying on
any scenario performed for the final rule to justify the regulations
finalized in this rule. To the extent these comments assume that this
rule is based on the monetized climate benefits reflected in the RIA
addendum, those assumptions are based on a mistaken premise. As
explained in the proposal and in section I.C of this preamble, while
EPA included estimated climate benefits in the RIA addendum that were
calculated using SC-HFCs, EPA did not rely on those estimates of the
monetized climate benefits of the estimated HFC emissions reductions as
a record basis for the Agency's action and would reach the conclusions
in this rule even in the absence of the SC-HFCs. In clarifying the role
of these analyses in the decision making for this rule, EPA is not
taking any position on what SC-HFC benefits it could or could not take
into account as a legal matter, but rather is simply describing, as a
factual matter, its approach in this rule. In addition, as explained
throughout this preamble, this rulemaking is designed to serve the
purposes identified in subsection (h)(1) of the AIM Act of maximizing
reclamation and minimizing the release of regulated substances and
ensuring the safety of technicians and consumers. To the extent that
these comments are intended to suggest that EPA cannot consider effects
on GHG emissions in promulgating regulations under subsection (h), that
position is at odds with the plain text of the Act. For example, as
explained previously, HFCs are potent GHGs and subsection (h)(1)
directs EPA to establish certain regulations for purposes which include
minimizing releases of HFCs from equipment.\181\ Thus, subsection
(h)(1) on its face authorizes EPA to regulate certain GHGs and to focus
on minimizing certain sources of emissions of those GHGs, indicating
that Congress intended for EPA to address these GHG emissions under
subsection (h).
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\181\ The comments emphasize the appearance of the terms
``innovation'' and ``manufacturing'' in the title of the AIM Act,
but ``headings and titles are not meant to take the place of the
detailed provisions of the text.'' Bhd. of R.R. Trainmen v. Balt. &
O.R. Co., 331 U.S. 519, 528 (1947).
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With respect to the commenter's assertion that EPA may not rely on
climate benefits for foreign countries or residents of foreign
countries as a basis for regulating domestic industries, EPA responds
that it is not clear what relevance this assertion has to this
rulemaking. As noted previously, EPA is not relying on the
quantification of climate benefits in the RIA addendum as a record
basis for this rulemaking. Further, while the commenter cites E.E.O.C.
v. Arabian Am. Oil Co., 499 U.S. 244, 254 (1991), it is unclear what
bearing that decision is to convey with respect to this rule, as it
addresses whether Title VII of the Civil Rights Act of 1964 applies
extraterritorially to regulate the employment practices of United
States employers who employ United States citizens abroad, and the
commenters have offered no further explanation. To the extent the
commenter was indicating that EPA may not use the global SC-HFC
estimates in the RIA addendum, EPA addressed accounting for global
damages in EPA's ``Report on the Social Cost of Greenhouse Gases:
Estimates Incorporating Recent Scientific
[[Page 82840]]
Advances'' (Nov. 2023).\182\ For additional discussion on this issue,
EPA also refers the commenter to Appendix A of the response to public
comments document available in the docket for ``Standards of
Performance for New, Reconstructed, and Modified Sources and Emissions
Guidelines for Existing Sources: Oil and Natural Gas Sector Climate
Review.'' \183\ With respect to the commenter's position that there are
``zero benefits'' from reclaim, EPA disagrees. In the RIA addendum and
Economic Impact and Benefits TSD, while we conservatively do not
attribute emission reductions from such provisions, we do estimate a
reduction in consumption of HFCs. Regardless, the purpose of these
provisions is not to provide a specific benefit; rather, as already
explained, the purpose is to help fulfill in a reasonable manner the
purposes identified in subsection (h)(1), including the purpose of
maximizing reclamation.
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\182\ Available at: https://www.epa.gov/system/files/documents/2023-12/epa_scghg_2023_report_final.pdf.
\183\ Available at: https://www.regulations.gov/document/EPA-HQ-OAR-2021-0317-4009.
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Furthermore, the Agency refers the reader to some publicly
available information which may be of interest to these commenters.
Information on the production and consumption of HFCs is provided on
EPA's HFC Data Hub.\184\ While information on chemical producers'
``benefits'' are not reportable under AIM Act regulations, EPA invites
the commenter to refer to company reports including filings with the
U.S. Securities and Exchange Commission. For the manufacturing sector,
EPA also directs the commenters to a 2018 industry-commissioned study
titled Economic Ratification of the Kigali Amendment,\185\ which found
significant economic benefits in terms of increased manufacturing
output and job creation.
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\184\ Available at: https://www.epa.gov/climate-hfcs-reduction/hfc-data-hub.
\185\ Inforum and JMS Consulting, 2018. Economic Impacts of U.S.
Ratification of the Kigali Amendment. Available at: https://www.alliancepolicy.org/site/usermedia/application/6/Kigali_Economic_Report.pdf.
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Lastly, regarding one commenter's request for the Agency to conduct
further analysis of the $3.7 billion in estimated costs, EPA has
reevaluated the final rule and included information on the costs and
benefits in the Economic Impact and Benefits TSD. Although the
commenter was not specific on what costs a further analysis should
include, EPA has provided further information to comply with Executive
Orders and has also included the RIA addendum in the docket, though the
Agency is not relying on that as a fact basis for the decisions in the
final rule.
Comment: One commenter stated that they did not carefully reproduce
the estimated savings and benefits as would have been done if there had
been more time for comments, but claimed that the estimated savings
assumption ``would not be expected to decrease over time, as the cost
of refrigerant would not decrease with the average GWP.'' The commenter
suggested that it is possible that the cost of refrigerant will
decrease over time as it has in the past and as there is more extensive
use of non-fluorinated alternatives.
Response: EPA agrees that the cost of refrigerants may decrease
over time, but also notes it may increase over time as HFCs are phased
down. In light of this uncertainty and for consistency and
comparability with prior analyses, in the RIA addendum and Economic
Impact and Benefits TSD EPA has applied a constant cost for new
refrigerant (of $4 per pound) equal to that used in previous analyses
under the AIM Act. EPA further notes that a slightly higher cost (of
$4.40 per pound) was applied for reclaimed refrigerant. More details on
these assumptions and resulting estimated costs and benefits, and a
sensitivity study of the cost of reclaimed refrigerant, can be found in
the RIA addendum and Economic Impact and Benefits TSD, which are
available in the docket for this rule.
Comment: One commenter stated that they are a champion of LRM, a
climate change mitigation strategy aimed at detecting and repairing
refrigerant leaks; recovering, reclaiming, and destroying refrigerant;
and designing and installing equipment with high energy efficiency and
lower-GWP refrigerants. The commenter shared that LRM can have a
profound climate impact, with the potential to mitigate 91 gigatons of
CO2e globally by 2100, with a tenth of those emissions
reductions happening in the United States.
Response: EPA acknowledges the commenter's perspective. The Agency
notes that several of the strategies mentioned by the commenter are
similar to requirements being finalized in this rule. While outside the
scope of this rulemaking, EPA also notes that the Agency has restricted
the use of higher GWP substances in multiple RACHP, foams, and aerosol
subsectors in the 2023 Technology Transitions Rule (88 FR 73098,
October 24, 2023).
Comment: One commenter requested that EPA confirm the impacts of
the technology transitions mandates that were considered in the
proposed rule, and if they were not considered, the commenter requests
that EPA reconsider the impacts of technology transitions in a
supplemental rulemaking.
Response: EPA responds that the 2023 Technology Transitions Rule
was not final at the time of the proposed rulemaking and thus was not
included in the baseline for the costs and benefits analysis completed
for the proposal. However, given the 2023 Technology Transitions Rule
has since been finalized, the impacts of that rule are assumed in the
baseline for the costs and benefits analysis conducted for this final
rule. These assumptions are detailed in the RIA addendum that is
available in the docket for this rulemaking.
Comment: Several commenters, in broad support of the proposal,
stated that the rule's requirements enhance LRM and implement
activities and practices which assist in preventing leaks and encourage
the recovery and reclamation of HFCs. The commenters highlighted their
joint report ``The 90 Billion Ton Opportunity: Lifecycle Refrigerant
Management.'' One of the commenter's stated that minimizing leaks from
appliances and ensuring the recovery, reclamation, and destruction of
refrigerants at EOL could avoid the emissions of 9.2 billion
MTCO2e by 2100 in the United States alone. The commenter
stated that the widespread adoption of LRM globally could avoid
emissions up to 91 billion MTCO2e by 2100.
Response: EPA acknowledges the commenters' broad support for the
rule. As described elsewhere in this preamble, this rule is designed to
serve the purposes identified in subsection (h)(1) of the AIM Act,
including minimizing releases of HFC from equipment and maximizing
reclamation.
Comment: One commenter stated that owners and operators of systems
of all sizes will incur economic benefits from promptly repairing
leaks. The commenter stated that better maintenance of systems through
leak repair will save owners and operators money by reducing the amount
of HFC needed to service existing systems and ensure the viability of
refrigerated products.
Response: As it is consistent with the analysis that EPA prepared
for the final rule, EPA agrees that owners and operators of equipment
subject to this final rule may incur economic benefits through prompt
leak repair. EPA provided an analysis of different charge size
thresholds for leak repair in the draft TSD, Analysis of Economic
Impact and Benefits of the Proposed Rule (see Appendix F of docket item
number EPA-HQ-OAR-0606-0023 attachment 2). Further discussion of the
rationale
[[Page 82841]]
for the 15-pound charge size threshold is explained in section IV.C.2.
of this preamble.
Comment: Another commenter expressed support for EPA's proposed
leak detection and repair requirements. The commenter noted that these
proposed requirements will have positive benefits for the atmosphere
and climate and will help ease demand for servicing gas.
Response: As it is consistent with the analysis that EPA prepared
for the final rule, EPA agrees with these statements.
Comment: One commenter in support of the leak repair and ALD
provisions in the proposal stated that many New York businesses would
experience savings upwards of $13 million by 2025 by lowering overall
refrigerant and energy costs.
Response: EPA acknowledges the commenter's support for the leak
repair and ALD requirements and agrees that refrigerant management will
lead to savings on refrigerant and energy costs. Although EPA did not
analyze the effects on New York or any other State individually, please
see the Economic Impact and Benefits TSD for an analysis of the country
as a whole.
Comment: One commenter asserted that lowering the charge threshold
to five pounds would yield significant additional avoided GHG
emissions. The commenter mentioned that most of the additional
reductions are estimated to come from road transport refrigeration
units, which, under the 2023 Technology Transitions Rule, are not yet
required to transition to low-GWP refrigerant alternatives and have
high estimated annual leak rates. The commenter noted that road
transport refrigeration units merit being subject to additional leak
management requirements. Another commenter similarly stated that
lowering the charge size threshold would provide additional emissions
benefits from the road transport sector. The commenter further stated
that a five-pound threshold would avoid emissions totaling 86
MMTCO2e by 2050 with annual refrigerant savings of
$1,080,000.
Response: EPA explains the Agency's decision to set a leak repair
charge size threshold of 15 pounds rather than 5 pounds in section
IV.C.2 in this final rule. EPA provided estimates of the compliance
costs and emissions reductions of the proposed leak repair and
inspection requirements using various charge size thresholds in the RIA
addendum and Economic Impact and Benefits TSD associated with the
proposed rule for informational purposes and to comply with Executive
Orders. EPA notes that in these documents as updated for this final
rule the Agency assessed the impacts of road transportation
refrigeration units using reclaimed refrigerant for servicing or
repair. Additionally, as a point of clarification, EPA notes that while
the 2023 Technology Transitions Rule did not set a GWP limit for all
refrigerated transport, it did ban many high-GWP blends containing
regulated substances, including R-404A, which was the primary blend
previously used, in certain refrigerated transport subsectors,
beginning January 1, 2025.
Comment: Three commenters expressed concern that lowering the
applicability threshold for the leak repair requirements would
significantly increase costs for sources. One of the commenters
mentioned that even EPA's analysis indicated that lowering the
threshold to 15 pounds, or even 30 pounds, would not be cost-effective.
Another commenter stated that with the 15-pound threshold that EPA
proposed, the number of covered appliances for one of its' members'
enterprises would increase more than ten-fold (from 600 to 6,100
individual units). The commenter claimed that such a dramatic increase
in the number of covered appliances could result in approximately $1
billion in additional capital costs to the company over the next 10
years. The commenter further stated that another member estimates that
conducting site surveys of all of its stores to identify newly covered
appliances under the ``15-pound threshold'' would cost roughly $500 to
$1,000 per site, depending on location and size. When multiplied across
many sites, this would lead to significant costs just to identify newly
covered equipment. The commenter stated that as a practical matter,
regulating small, packaged units, VRF systems, and mini-splits would
greatly increase the recordkeeping burden on owners and operators under
the regulations, and would increase costs for inspections and carrying
out retrofit and/or retirement plans. The commenter stated that many
HVAC appliances contain multiple circuits within a unit, each with its
own recordkeeping obligations and leak rates. This increases compliance
costs and makes it more difficult to fix, repair, and/or retrofit
appliances.
EPA also received another comment similarly claiming that the rule
would impose a financial burden to food retailers due to the increased
number of affected appliances. Specifically, the commenter estimates
that audits of stores to determine which appliances would be subject to
the leak repair requirements would cost between $1,000 and $2,000
dollars per supermarket and upwards of $700 dollars for convenience
stores, further estimating a total cost of $258,872,850 to the food
retail industry. The commenter also expressed concern that many smaller
appliances would need to be added to a company's recordkeeping, because
appliances not previously covered under CAA section 608 would not have
had their full charge data captured. The commenter claimed that some
companies may have voluntarily kept records of appliances under 50
pounds, however these records would not have been kept with the same
rigor as recordkeeping required under CAA section 608. The commenter
estimates the costs of reweighing smaller refrigerant-containing
appliances to determine full charge will cost individual stores a
minimum of $1,287 which industry-wide would result in an additional
$81,534,800 in compliance costs.
Response: EPA is finalizing the 15-pound charge size threshold as
proposed for the leak repair requirements in this final rule after
consideration of a number of factors, including information regarding
where HFCs or their substitutes are currently being used in
refrigerant-containing appliances and where they are expected to be
used in the coming years. EPA also considered, for example, changes to
the market for refrigerant-containing appliances over time, design
elements of different types of refrigerant-containing appliances with
different charge sizes and their respective propensity to leak (e.g.,
whether equipment is hermetically sealed), and whether refrigerant-
containing appliances at specific charge sizes are typically repaired
or disposed of. As previously stated, in the RIA addendum and Economic
Impact and Benefits TSD for the proposed rulemaking the Agency assessed
different thresholds. These assessments were prepared to provide
additional information, increase transparency to the public, and comply
with Executive Orders. EPA did not consider the cost-effectiveness of a
specific charge size threshold in its reasoning for finalizing the 15-
pound charge size threshold for the leak repair provisions; however,
for informational purposes the Agency provided the cost assessments at
different charge thresholds in the Draft Economic Impact and Benefits
TSD associated with the NPRM. Further discussion on the charge size
threshold for the leak repair provisions in this final rule can be
found in section IV.C.2.
Regarding one commenter's assertion that the rule would institute
additional recordkeeping and compliance costs for certain HVAC
appliances, the Agency
[[Page 82842]]
refers the commenter to further discussions on the exemption of
refrigerant-containing appliances used in the residential and light
commercial air conditioning and heat pumps subsector in section IV.C.2.
EPA notes that several of the refrigerant-containing appliances the
commenter describes (e.g., mini-splits) may be considered a part of the
residential and light commercial air conditioning and heat pumps sector
and thus are exempt from the leak repair requirements in this final
rule. EPA disagrees with the commenters' assessments of capital costs
associated with complying with the leak repair provision and with the
comments related to site surveys and store audits. Owners and operators
will need to review an inventory of equipment and assess which
equipment is subject to the rule's leak repair requirements regardless
of where the threshold is set. Supermarkets and other entities should
be able to ascertain which appliances are at or above the 15-pound
threshold. Furthermore, owners or operators most likely have records of
refrigerant-containing appliances that would allow them to determine if
the full charge was at or above the 15-pound threshold. For instance,
owner's manuals might provide the OEM's assessment of the full charge,
or service records from when the equipment was installed and first
filled or checked might provide the necessary information. The Agency
understands that most stand-alone units would be below 15 pounds but to
the extent that certain stand-alone units are above the 15-pound
threshold owners or operators should be able to easily determine the
charge size and type of refrigerant being used via a manufacturer
label. Further, if an owner or operator is using the same make and
model of refrigerant-containing appliance then they would not need to
verify each individual appliance. Remote condensing units (e.g.,
supermarket cold rooms) may also have charge sizes at or above 15
pounds but as previously stated, previous records, manufacturer labels,
and other information readily available should make the determination
of the charge size for any such appliances uncomplicated. The
recordkeeping for owners and operators is similar in nature to those
required under the CAA section 608 regulations. Therefore, most owners
and operators should already be familiar with the requirements being
applied in the rule. The total estimated recordkeeping and reporting
costs are provided in the Economic Impact and Benefits TSD and the
assumptions for the various leak repair and inspection actions
anticipated are likewise provided in Appendix A of the TSD. EPA does
not anticipate that it would typically be necessary to conduct full
store audits of appliances or reweigh appliances in the way the
commenters suggest for these reasons. EPA notes that in this final
rule, the Agency delayed the date by which an owner or operator must
determine the full charge of appliances containing 15 or more pounds of
refrigerant and keep records of such, from 60 days after publication
until January 1, 2026, and that such change allows owners and operators
to collect the required information in the normal course of business.
Thus, EPA disagrees with the asserted cost estimates for determining
which appliances are subject to leak repair under the final rule, even
in the absence of voluntary recordkeeping of refrigerant-containing
appliances which may be subject to the leak repair requirements.
Comment: One commenter claimed that technician and equipment
shortages and complexity of supermarket systems will make compliance
with the one-year retrofit or retirement requirements difficult. The
commenter also stated that the retrofits complying with the 2023
Technology Transitions Rule will further complicate compliance with the
rule's deadline. Thus, the commenter asserts that owners or operators
will incur significant excess costs to meet the retrofit or retirement
requirements in the rule.
Response: EPA disagrees that 12 months is not enough time for an
owner or operator to implement their retrofit or retirement plan as
required under this rule, and further notes that the rule allows owners
or operators to seek extensions if certain criteria are met. Owners or
operators have up to 30 days to repair commercial refrigeration
appliances (or 120 days if an industrial process shutdown is required)
and extensions can be requested if certain criteria are met. During the
leak repair process an owner or operator would know if a refrigerant-
containing appliance is unable to be repaired and would therefore
require retrofit or retirement. As discussed in section IV.A.2, EPA
under the definition of ``retrofit'' being finalized in this rule,
retrofitted refrigerant-containing appliances will not be required to
transition to lower-GWP alternatives. The Agency, however, still
encourages owners or operators that are retrofitting refrigerant-
containing appliances to transition to a lower-GWP refrigerant.
Further, in response to the commenter's concerns with complying with
the 2023 Technology Transitions Rule, we note that restrictions on
retrofits are not included in that rule and thus disagree with the
commenters' assertion that that rule would complicate compliance with
this rule's deadlines for retrofit or retirement plans. Additionally,
the Agency notes that the commenter did not provide detailed
information or data to support--or to allow EPA to more fully assess--
the commenter's claims regarding potential technician and equipment
shortages and how these factors would affect compliance with the
retrofit and retirement requirements in the final rule or lead to
excess costs.
Comment: The commenter recommended that EPA follow CARB's leak
repair timeline of 14 days from the initial detection of the leak to
ensure that any detected leak is repaired in a timely fashion because
this approach reduces both emissions and additional refrigerant costs
to appliance owners and operators.
Response: EPA agrees that the quicker a leak is repaired, the more
emissions and additional refrigerant costs would be mitigated (up to
the time that the entire charge has leaked out). EPA does not agree
with the commenter that it would be appropriate to establish a 14-day
repair timeline for the requirements in this rule. The amount of time
provided to repair a leak and the reasoning for that decision is
provided in section IV.C.3.b of this preamble. For analysis purposes,
as explained in the RIA addendum and Economic Impact and Benefits TSD,
EPA estimated that leaks would be noticed and repaired early due to the
provisions of this rule.
Comment: Another commenter expressed support for EPA's proposed
leak detection and repair requirements. The commenter noted that these
proposed requirements will have positive benefits for the atmosphere
and climate and will help ease demand for servicing gas.
Response: EPA agrees that leak detection and repair requirements
will have a beneficial impact on the environment and has provided
estimated benefits of these impacts in the Economic Impact and Benefits
TSD. EPA agrees that the detection and repair of leaks is effective in
reducing the quantity of gas necessary for servicing existing
equipment.
Comment: One commenter stated that EPA significantly underestimated
the costs of installing ALD systems. The commenter stated that EPA's
cost estimates for direct ALD systems do not include all the types of
costs that owners or operators will incur. The commenter recommended
that EPA develop cost estimates that also consider the following:
[[Page 82843]]
Reviewing the ALD system requirements,
preparing the process design for equipment installation,
which includes safety and electrical reviews,
preparing bid packages and reviewing bids,
developing detailed mechanical designs (which would
include the hardware/software needed to tie the systems to control
houses and panels that may need to be modified),
project cost estimating,
management reviews,
construction contracting,
field installation, and
testing.
With regards to indirect ALD systems, the commenter noted that EPA
indicated that indirect systems have been installed in some retail
stores but did not provide any information on applications in
industrial facilities. The commenter suggested that the cost estimate
for indirect ALD systems is orders of magnitude below what the actual
costs will be because indirect ALD systems require specialized
monitoring systems and require constant monitoring from complex logic
systems to detect losses. The commenter also expressed concern that the
TSD for ALDs did not include any references to discussions with
equipment suppliers about actual fully installed appliances and
recommended that EPA take steps to develop more realistic costs
estimates before finalizing the proposed rule. The commenter also
stated that EPA's reference for the cost estimates, ``Abt Associates,
Supplemental Automatic Leak Detect System Draft Analysis, 2023,
prepared for EPA Stratospheric Protection Division,'' was not included
in the docket.
Response: EPA responds that the commenter did not provide
information on how their examples of costs apply to the costs
associated with the installation and use of direct ALD systems nor did
the commenter provide estimates of such costs. While EPA agrees to that
project planning would need to take place to decide if an owner or
operator would prefer to use and indirect or direct ALD system
(including planning for the placement of refrigerant sensors) EPA
disagrees that these actions would drastically increase the cost
estimates provided in the RIA addendum and Economic Impact and Benefits
TSD. Furthermore, some of the costs cited by the commenter like
testing, installation, and construction contracting would reasonably
fall under the installation cost estimates Unit Cost Assumptions Table
in the RIA addendum and Economic Impact and Benefits TSD.
Regarding the commenter's statements on the installation and use of
indirect ALD systems in industrial applications, EPA notes that the
information provided on indirect systems installed in some retail
stores in the TSD titled American Innovation and Manufacturing Act of
2020--Subsection (h): Automatic Leak Detection Systems was exemplary
only and was not intended to represent all such installations. EPA
provides information on the industries potentially affected by this
rule both in the preamble to the proposed rule and the preamble to the
final rule. A list by NAICS codes is also available in Appendix H of
the Economic Impact and Benefits TSD. A full list of applications in
any subsector of the industry is not plausible and not required for
this rule; owners and operators whose equipment falls under the scope
of the requirements (e.g., full charge size of 1,500 pounds or more,
installed on or after January 1, 2017) are required to install and use
an ALD system in the time frame set out by the final rule. The Agency
reiterates that estimates in the RIA addendum and Economic Impact and
Benefits TSD were provided for informational purposes and to comply
with Executive Orders; the decision to require ALD systems for certain
refrigerant-containing appliances and allow owners or operators to
choose whether to use a direct or indirect system, as explained in
section IV.D.1 of this preamble, serves the purposes described in
subsection (h)(1), including the purpose of minimizing the release of
regulated substances from equipment.
In addition, EPA notes that the commenter did not provide specific
information on ``realistic'' costs that the commenter would have EPA
incorporate into the final RIA addendum. EPA disagrees with the
commenter's assertion that the cost estimates for the installation of
an indirect ALD system is below the actual costs of installation of an
indirect ALD system because existing refrigerant-containing appliances'
control modules do not have the capability to do the logic calculations
necessary to detect leaks. Indirect ALD systems are software-based
detection tools that communicate with existing hardware on the
refrigerant-containing appliance to detect leaks. Since the Agency has
changed the scope of applicability for existing refrigerant-containing
appliances for the ALD installation and use requirement from the
proposal (specifically only refrigerant-containing appliances installed
on or after January 1, 2017, are required to install an ALD) the
control modules on these appliances should be advanced enough to
functionally use an indirect ALD system. Additionally, if an owner or
operator were to find that a particular ALD technology (direct or
indirect) would not suit their refrigerant-containing appliance, they
have the option of choosing another ALD technology to meet the rule's
requirements. Furthermore, the reasons for the requirements for ALD
system, as explained in section IV.D.1 of this document, are not based
on keeping below any specific cost; rather, it is based on serving the
purposes described in subsection (h), as previously stated. Further
discussion on the Agency's rationale for requiring the use of ALD
systems for certain refrigerant-containing appliances can be found in
section IV.D.1. In reference to the comment regarding EPA's numbers
used in Table A-4--Unit Cost Assumptions table found in the RIA
addendum, EPA acknowledges the cited source was not included in the
docket at proposal and notes that it has docketed the relevant
information from the document and corrected the citation (titled
Supplemental Information on Automatic Leak Detection Systems available
in the docket (EPA-HQ-OAR-2022-0606)). The information used was
accurately described and summarized in the draft RIA addendum for the
proposed rule and likewise in the analysis for the final rule.
Comment: A commenter requested a 2,000-pound threshold if EPA
maintains the ALD installation requirement for some appliances. The
commenter asserted that EPA's RIA suggested that thresholds below 2,000
pounds are not cost-effective. The commenter also asserted EPA should
further evaluate the cost-effectiveness of a threshold higher than
2,000 pounds and, at a minimum, should not finalize any threshold below
2,000 pounds.
Response: As discussed further in section IV.D.1 of this preamble,
the Agency is finalizing the 1,500-pound threshold for IPR and
commercial refrigeration appliances containing an HFC or substitute for
an HFC with a GWP greater than 53 as proposed. In the RIA addendum and
Economic Impact and Benefits TSD for the proposed rulemaking, the
Agency provided information on the costs and benefits of choosing a
different threshold; however, EPA notes that the figures presented in
the RIA are for informational purposes and to comply with Executive
Orders and were not used as a record basis for deciding the threshold
for ALD installation requirements. When deciding the charge size
threshold for IPR and commercial refrigeration
[[Page 82844]]
appliances subject to this provision EPA considered the relative risks
of leaks from larger refrigerant-containing appliances and the supply
of ALD systems to facilitate compliance with the provision. With those
considerations, EPA finds the 1,500-pound threshold appropriate for
serving the purposes described in subsection (h)(1), including the
purpose of minimizing the release of regulated substances from
equipment.
Comment: A commenter stated that the proposed rule would require
carriers in the commercial airline industry that maintain large chiller
systems at airports to install ALD systems at high costs.
Response: EPA responds that the commenter did not provide any
information or data to support their assertions regarding the effects
of the costs associated with the installation and use of ALD systems
for chillers at airports on the commercial airline industry, nor did
they provide any information indicating how or why EPA should change
the proposed rule to account for these costs.
Comment: A commenter claimed that mandating leak searches and
adding ALD further adds to consumer costs.
Response: EPA responds that the commenter did not provide
sufficient information to describe why or how the costs related the
leak repair and ALD requirements would lead to more costs and thus be
passed onto consumers. EPA understands that refrigerant and the
maintenance of refrigerant systems are a small percentage of the
overall costs of owning such refrigerant-containing appliances. The
effective repair of leaks and the earlier detection of leaks via ALD
systems is anticipated to lead to more cost savings for owners and
operators, as properly functioning refrigerant-containing appliances
are more energy efficient and require fewer refrigerant additions.
Comment: One commenter suggested that EPA provided no proof that
the objectives noted in the proposed rule for reclamation to bolster
the current supply of HFCs with recovered and reclaimed refrigerants
from existing systems, support a smooth transition to substitutes for
HFCs, minimize disruption of the current capital stock of equipment by
allowing its continued use with existing refrigerant supplies, avoid
supply shortages of virgin refrigerants, and insulate the industry
against price spikes that could affect the servicing of existing
systems using HFCs can be achieved. The commenter also claimed that
EPA's claims of cost-savings are contradicted by the RIA, which did not
monetize any of the supposed benefits.
Response: EPA disagrees with the commenter and directs the reader
to section IV.E of this preamble for additional information on the
reclamation requirements. EPA notes that there was a 40 percent
increase in the mass of HFCs reclaimed from 2021 to 2022, and
approximately a 20 percent increase from 2022 to 2023, which may be an
indication that there will be additional shifts in the reclamation
market.\186\ In EPA's experience with the CFC and HCFC phaseouts, the
Agency has seen continued use of reclaim, indicating that equipment was
and, in many cases, still is operating utilizing refrigerants that have
been phased out. Throughout those phaseouts, EPA has not seen any
significant disruption or premature retirement of equipment due to
refrigerant shortages, nor did the commenter provide any evidence
thereof for the CFC and HCFC phaseouts, nor any reason to think such
effects would occur for the HFC phasedown.
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\186\ Available at: https://www.epa.gov/section608/summary-refrigerant-reclamation-trends.
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In the RIA addendum and Economic Impact and Benefits TSD, EPA has
estimated the costs and benefits of the regulations. While the
commenter seems to indicate that cost savings were not included in the
analysis, EPA notes that cost savings associated with avoided
refrigerant losses were included in the analysis conducted for both the
proposed and final rule. More information on these assumptions can be
found in section VI.B.2 of this preamble as well as the RIA addendum
and Economic Impact and Benefits TSD.
Comment: One commenter stated that the modeling conducted in
support of the AIM Act regulations appears to rely on refrigerant
recovery in disposal and servicing of appliances that may exceed what
current regulations will achieve. The commenter cited the RIA for the
allocation regulation and the RIA for the 2023 Technology Transitions
Rule, on the basis of which the commenter stated their understanding is
that EPA may expect a 100 percent recovery rate. The commenter noted
that despite the proposed rule's multiple measures, the proposal has
few provisions regarding the disposal side of refrigerant recovery or
the recovery of refrigerants at EOL. The commenter stated that
residential EOL disposal and recovery is not discussed in EPA reclaim
market report provided in the docket, but residential appliances are an
important source of HFC consumption and emissions. The commenter shared
a concern that there is little incentive for individuals that may
collect residential appliances, such as from a curbside, to properly
recover refrigerants before transferring the equipment to a recycling
or other disposal facility, and stated that entities that accept EOL
equipment, like metal recovery facilities, may request that refrigerant
be vented prior to disposal so that they are not subject to regulation,
creating a gap in enforcement of existing regulations and undermining
reclaim supply. The commenter stated that of the jurisdictions with
refrigerant collection policies, Japan may have the most recovery and
Japan's government reports a 40 percent recovery rate. The commenter
stated that based on information provided by EPA, the recovery rate in
the United States is much lower than this and much lower than what may
have been modeled in the AIM Act rulemakings. The commenter added that
even the volume of HFCs contained within products exceeded the recovery
rate in 2020 by seven times. The commenter further noted that one
benefit of the proposed regulation is that by increasing the demand for
reclaim, it also provides additional incentive for refrigerant
recovery. However, the commenter stated that based on the industry
report provided by EPA in the docket, the examples from other
jurisdictions suggest that incentives are not enough to ensure a high
rate of recovery. The commenter stated that EPA's modeling assumptions
may only be achievable through robust enforcement and incentives.
Response: EPA confirms that the modeling conducted for the RIA and
RIA addenda for the HFC Allocation and 2023 Technology Transitions
rules do assume improvements to refrigerant recovery rates, during
service and at disposal, in some of the potential compliance pathways.
However, the rate of recovery assumed in this modeling was not 100
percent. To represent improvements to refrigerant recovery rates
possible under the provisions of this final rule, in an alternate
scenario EPA modeled an improvement in the emissions rates of all RACHP
equipment (including residential) at disposal. Specifically, it was
assumed that an emissions rate of three to four percent would be
achieved for large and small RACHP equipment (in other words, three-
four percent of equipment charge would still be emitted at EOL even
with the improved recovery assumption). EPA notes that while this
assumption was included in the compliance path for the Allocation Rule
RIA, it was effectively treated as an uncertainty in
[[Page 82845]]
the subsequent 2023 Technology Transitions RIA Addendum, given that
updated modeling results demonstrated that compliance with both rules
could be achieved without improved recovery. As detailed in the
associated RIA addendum, modeling conducted for this rule assumes that
the prior improved recovery assumption would not occur in the
``baseline'' in order to conform with the base case analyzed for the
2023 Technology Transitions Rule. However, an alternative scenario has
also been provided in the RIA addendum and the Economic Impact and
Benefits TSD in which improved recovery is assumed to otherwise occur
in the absence of this regulation, thus illustrating a lower bound of
potential incremental benefits. EPA welcomes additional data and
technical information on this topic and will continue to monitor
industry recovery and reclamation rates in order to potentially update
its modeling assumptions in the future. Finally, EPA acknowledges that
further improvements in recovery rates may be achievable through
enforcement and incentives such as those mentioned by the commenter.
Comment: One commenter stated that EPA is uncertain whether
mandating the use of reclaimed HFCs would provide benefits in the form
of additional HFC reductions. The commenter stated that EPA indicates
that use of reclaimed HFCs in the RACHP subsector and fire suppression
equipment ``may not yield significant additional HFC consumption
reductions, relative to what was previously modeled in the Allocation
Framework Rule Reference Case,'' while noting that EPA states that the
``specific provision of this proposed rule would likely increase the
use of recycled/reclaimed HFCs beyond what was already accounted for in
[the RIA].'' The commenter claimed that EPA offers no quantification of
this increase, and that such imprecise and qualified impacts do not
provide a sufficient policy basis for the imposition of requirements
that will impact the HFC market as envisioned by the AIM Act.
The commenter also asserted that the proposed rule would create a
captive market as opposed to one based on competition, thereby losing
any economic incentives that could lower the cost of products to
consumers. The commenter stated that EPA effectively requires OEMs to
buy reclaimed HFCs in order to sell pre-charged HVACR equipment and
technicians and others to buy reclaimed HFCs in order to ``first fill''
new equipment on-site. The commenter claimed that this creates a closed
market given the finite amount of reclaimed HFCs available, citing
EPA's 2023 reclaim report documenting that 1,600 MT of R-410A was
available in 2022 as reclaim, which the commenter claimed, relative to
estimated 2022 demand for charging new R-410A AC equipment, represents
less than four percent of new equipment demand. The commenter further
claimed that in its analysis for the proposed rule, EPA has not
considered that the finite amount available in 2022 was likely already
sold, leaving other newly obligated parties to purchase required
reclaimed HFCs from a market that already has a minimum value
established for R-410A. The commenter claimed that this necessarily
results in an unbalanced, artificial market of EPA's creation. The
commenter also stated that EPA has not analyzed the cost impact of such
market conditions to the end consumer nor any potential adverse
outcomes, including concentration of a finite amount of reclaimed HFCs
within a relatively small number of suppliers.
The commenter also claimed that EPA utilizes ``regulatorily
manufactured demand'' to estimate actual demand for initial charge of
reclaimed HFCs in 2028 at 23,300 metric tons, and that by doing so EPA
did not establish a ``no action'' base analysis. Instead, EPA
forecasted existing demand by creating reclaim requirements meant to
create this ``artificial demand.'' The commenter then stated that EPA
made a faulty assumption in assuming that market forces would not be
sufficient to increase reclamation before the next phasedown of HFC
production and consumption. The commenter claimed that EPA erroneously
concluded that voluntary reclamation programs that ``worked in Europe''
would not be sufficient to increase reclamation in the United States,
and that EPA's decision to institute regulations to increase
reclamation is ``at variance with the AIM Act . . . [and] arbitrary and
capricious.''
The commenter further stated that reclaim requirements for HFCs are
also unnecessary based on the United States' experience with the
phaseout of ODS, as a reclamation market has allowed the continued use
of ODS even in the absence of voluntary reclamation requirements.
Furthermore, the commenter stated that the climate impact of
refrigerant leaks is the same regardless of whether refrigerant is
reclaimed or virgin, and that EPA has no basis for claiming that there
will be a climate benefit from reclamation requirements or that
reclamation will offset emissions from newly produced HFCs, either
domestic or imported. The commenter stated that EPA's own analysis has
not proven that increased reclamation will provide additional benefits,
citing quotations from the RIA addendum. The commenter instead
concluded that ``market distortion'' is the most likely outcome, with
some parts of the HFC marketplace impacted more heavily than others.
The commenter additionally asserted that the RIA is inadequate to
support EPA's proposed direct intervention in the market. The commenter
noted that EPA states in the RIA addendum that because ``cost and
emission estimates aren't available specifically in the United States
context, cost savings and benefits are not directly incorporated into
the overall compliance costs and benefit estimates associated with the
rulemaking [provisions on reclamation],'' and states that to account
for the uncertainty in EPA's intervention in the market, EPA created
two scenarios: (1) Where requirements to use reclaimed HFCs result in a
shift of the use of available consumption and production allowances;
and (2) a `high additionality' case where some abatement of HFCs is
assumed. The commenter stated that EPA then measured the costs and
benefits of reclamation using a highly flawed methodology, and that EPA
calculated the incremental cost differences of virgin production,
destruction, and reclamation at $0.58 per kilogram. The commenter
asserted that this methodology merely compared the cost of virgin
production and destruction and then subtracted the cost of reclamation,
and that this calculation is effectively meaningless in the context of
what EPA actually proposed.
The commenter also claimed that this analysis showed that there is
already a strong economic incentive to reclaim HFCs instead of
destroying them, because the estimated cost of production is $0.24
versus $0.04 for reclamation. The commenter further stated that the
cost calculated does not actually reflect EPA's proposal to substitute
the use of reclaimed versus newly produced HFCs, and instead assumes
that all newly produced HFCs would be destroyed without EPA's proposed
mandatory use of reclaimed HFCs, which the commenter describes as
nonsensical. The commenter claimed that for EPA's proposed use of
reclaimed HFCs to have a market effect (e.g., if it is assumed that
reclaimed HFCs will offset the production of virgin HFCs) then new
production should be offset by 1:1 (or some other, lesser ratio) but
any newly produced HFCs would logically not be concurrently destroyed.
Rather, the commenter asserted, both the virgin HFC and the reclaimed
HFC would eventually be destroyed,
[[Page 82846]]
presumably at comparable rates, meaning that the calculated benefit of
$0.58 would not exist along with any derived climate benefit.
The commenter further stated that to the extent that EPA calculated
the quantity of emissions prevented it appears to have assumed that 15
percent of HFCs would still be produced for blending into reclaimed
HFCs and another 67 percent of HFCs would be lost in the reclamation
process and eventual emissions of reclaimed HFCs. The commenter claimed
that this would mean that EPA estimates that 18 percent of HFC
production would be avoided due to the newly proposed requirements but
claimed that EPA provided no basis for this assumption in the RIA. The
commenter asserted that any claimed benefits to the climate must
therefore be discounted due to a lack of explanation as to how such
would occur. The commenter further claimed that EPA has not conducted
sufficient analysis, and therefore cannot simply conclude that such
benefits would occur, as the commenter states EPA appears to do. The
commenter stated that EPA provided no TSD to support its reclamation
proposal, unlike TSDs for ALD, fire suppression, and the cold chain,
that the study cited (Yasaka et al. (2023)) was not provided in the
docket, and that an additional report cited by EPA does not contain
relevant calculations. The commenter stated that, for example, EPA
cited but does not provide in the docket a report entitled ``The 90
Billion Ton Opportunity,'' and that the available copy of this report
on the web contains no calculations as to the amount of HFC releases
avoided through mandatory reuse of HFCs.
Response: EPA responds that, upon consideration of comments, in
light of the provisions being finalized, and because of further
analysis, many of the analytic assumptions mentioned by the commenter
have been updated in the final rule RIA addendum and Economic Impact
and Benefits TSD. In the final RIA addendum and Economic Impact and
Benefits TSD, EPA only mentions the Yasaka et al. paper in passing and
does not rely upon it or the calculations of costs of production,
reclamation, and destruction in our calculations. Further, EPA no
longer assumes the 67 percent loss with which the commenter took issue.
EPA acknowledges that there is uncertainty regarding the degree to
which some of the provisions contained in this final rule will lead to
incremental reductions in HFC consumption and emissions when
considering already in-place regulations and market forces. For these
reasons, EPA has included multiple scenarios in the RIA addendum for
the final rule. However, as detailed in the RIA addendum, even in EPA's
most conservative assessment of the incremental benefits of the final
rule, significant incremental consumption and emissions reductions
occur. Although EPA conservatively assumes the reclamation provisions
do not provide additional emission reductions, the analysis finds those
provisions reduce HFC consumption by over 150 MMTCO2e
through 2050.
EPA disagrees that existing economic incentives for reclamation in
the absence of this rulemaking would represent a flaw in the analysis.
As noted elsewhere in the rule preamble, some market failure may exist
that acts as a barrier to businesses' adoption of the most profitable
course. For example, market failures may exist where there are
imperfect information or split incentives, such as decision-makers not
knowing the percentage of energy use associated with different options.
EPA also disagrees that the experience of the ODS phaseout provides
any proof that a voluntary reclaim market for HFCs would materialize
that would serve the same goals as this rule and that the requirements
of the final rule are thus unnecessary. The consumption of halons and
CFCs were completely phased out in 1994 and 1996, respectively, and
likewise later for HCFCs on a species-specific schedule. Although the
ODS phaseouts effectuated a type of reclamation market, as users would
need to access used or stockpiled material to service their equipment,
that market was not intended to meet specific statutory provisions with
respect to reclamation. As the commenter notes with statistics
regarding R-410A, such a reclamation market does not exist for all HFCs
currently. Further, given that HFC production and consumption are
phased down, not phased out, under the AIM Act, and given the express
language in the AIM Act addressing reclamation, the comparison to the
ODS history in this respect is not analogous with the goals of this
final rule.
EPA notes that the commenter's assertions regarding the creation of
potentially anticompetitive markets for reclaimed HFCs appear to be
speculative. The commenter did not provide sufficient information to
support their claims or analyze the specific details of their
assertions, including information addressing how the rule would lead to
such adverse outcomes given the numerous EPA-certified reclaimers that
exist, and the opportunity for other entities to enter the reclaim
market. Nor is EPA aware of such information or analyses in the record
for this rule. In addition, the Agency is not finalizing, at this time,
the proposed requirements for the initial fill of refrigerant-
containing equipment to be done with reclaimed HFCs, thus potentially
alleviating some of the commenter's concerns. EPA has also responded to
many of the commenter's concerns regarding the market for reclaimed
HFCs and has described the rationale for the requirements for reclaimed
HFCs that are being finalized in this rule, in section IV.E.2 of this
preamble. Regarding a ``no action'' analysis, EPA notes that the Agency
provided a ``Business as Usual'' scenario in the 2021 Allocation
Framework Rule RIA addendum. EPA further notes that the commenter seems
to misunderstand the reason for preparing the RIA addendum. As noted
elsewhere in this preamble, while EPA has included estimates of the
costs and benefits of this rulemaking in the RIA addendum, to provide
the public with information on the relevant costs and benefits of this
action and to comply with Executive Orders, the analysis in the RIA
addendum does not form a basis or rationale for any of the provisions
EPA is promulgating in this rulemaking.
Finally, in its analysis of the costs and benefits of this rule,
EPA has not assumed that reclaimed HFCs are more cost-effective vis-
[agrave]-vis virgin HFCs due to avoided destruction costs. Such an
assumption may be defensible, and EPA is aware of the study, referenced
by the commenter, indicating that reclaimed HFCs may actually be more
cost-effective than virgin manufacture, when considering the full
refrigerant lifecycle including destruction. While EPA referenced this
study in the RIA addendum included with the proposed rule, for the
final RIA addendum EPA has conservatively not included the potential
savings cited by that study. Indeed, in its central base case analysis
EPA has conservatively assumed a cost premium for reclaimed HFCs vis-
[agrave]- vis virgin HFCs of 10 percent. For informational purposes, we
also provided a sensitivity analysis around this assumption.
In response to the commenter's claim that EPA should implement a
voluntary refrigerant reclamation program instead of promulgating
refrigerant regulations, EPA responds that the Agency is finalizing
reclamation requirements to implement subsection (h)(1) and subsection
(h)(2)(B) of the AIM Act, as stated in IV.E.1. Namely, EPA instituted
reclamation provisions in order to maximize reclamation and minimize
releases of HFCs consistent with (h)(1), and also to implement
subsection
[[Page 82847]]
(h)(2)(B) of the AIM Act, which provides that a regulated substance
used as a refrigerant shall be reclaimed before being sold or
transferred to a new owner, except where such sale or transfer is
solely for purposes of reclamation or destruction of the regulated
substance. The commenter fails to provide any information or analysis
to support a conclusion that a voluntary reclamation program would be
as well suited to meeting the objectives of this rule as the program
that EPA is establishing in this rule.
In response to the commenter's assertions regarding docketing, EPA
included both sources that the commenter mentioned in the docket.
Yasaka et al. (2023) is included in the docket as an attachment to the
docket entry for the RIA addendum,\187\ while the study the commenter
cites ``The 90 Billion Ton Opportunity'' is included in a docketed list
of references from the NPRM.\188\
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\187\ The docket entry for the RIA addendum for the proposed
rule is available at: https://www.regulations.gov/document/EPA-HQ-OAR-2022-0606-0023, and the Yasaka study is attachment 17.
\188\ The docket for materials referenced in the proposed rule
is available at: https://www.regulations.gov/document/EPA-HQ-OAR-2022-0606-0015.
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Comment: Another commenter stated that EPA did not clearly and
consistently identify the heel estimates used when assessing potential
benefits of the proposed cylinder management requirements. The
commenter stated that EPA's environmental benefit analysis is
contradictory, insufficiently supported, and does not rely on facts.
Response: EPA has included information in the RIA addendum and
Economic Impact and Benefits TSD for the final rule regarding the
assumptions, including the estimated heel, used in The Agency's
analysis of the costs and benefits of the requirements for the
management of disposable cylinders. Further, based on information from
the commenter, EPA has provided sensitivity analyses of the related
costs and benefits in Appendix K of the RIA addendum.
Comment: One commenter stated that there would be no benefit for
reclaimers to recover refrigerant heels because there would be little
refrigerant left in the cylinders, resulting in an expensive
refrigerant from a cost per ounce perspective. Another commenter stated
that EPA's RIA addendum did not provide any estimates of the costs and
benefits of the proposed container tracking system. The commenter
stated that EPA cost estimates appear to be entirely based on the
separate requirement regarding the recovery of cylinder heels.
An additional commenter stated that there is no benefit to forcing
empty disposable cylinders to outside facilities and that tracking
cylinders will increase costs.
Response: EPA has estimated the costs and benefits of requirements
to manage disposable cylinders and heels in the RIA addendum and
Economic Impact and Benefits TSD for the final rule. EPA is not
finalizing the cylinder tracking requirements at this time, and thus
costs related to those provisions are not included in the costs from
the aforementioned RIA addendum and TSD. EPA notes that for consistency
with previous regulations under the AIM Act, the Agency assumed the
value of the recovered heel is $4 per pound. That said, EPA expects
that given the HFC phasedown that is underway, those costs could
increase over time, providing more value to those recovering the heels.
The reasons for establishing these requirements related to disposable
cylinders and heels are explained in section IV.G of this document.
Comment: One commenter also stated that there will be a cost impact
throughout the supply chain to handle the logistics and tracking
required to recover a likely small amount of HFCs. The commenter
expressed concern with the net environmental impact of reclaiming the
heel refrigerant from disposable cylinders in the MVAC sector after
considering the transport, handling, and reclamation energy required to
extract the remaining refrigerant, and the commenter urged EPA to
consider all factors involved in the net environmental benefit of heel
reclamation before implementing the rule.
Response: EPA has estimated the costs and benefits of the
requirements to manage disposable cylinders and send heels for
reclamation in the RIA addendum and Economic Impact and Benefits TSD
for the final rule. EPA's assessment included additional costs related
to transport and the labor costs, plus overhead, for handling and
transporting such cylinders. While EPA acknowledge there are energy use
implications in reclaiming materials, the Agency noted in the draft RIA
addendum to the proposed rule a study (Yasaka et al., 2023) \189\ that
shows, overall, the use of reclaimed refrigerant leads to net
reductions in energy compared to the production of virgin material. To
be conservative and because these results were based on data from Japan
and Europe, EPA does not, however, use those findings to increase the
benefits assessed from the avoided emissions estimated based on the
requirements of the final rule.
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\189\ Yasaka, Yoshihito, et al. ``Life-Cycle Assessment of
Refrigerants for Air Conditioners Considering Reclamation and
Destruction.'' Sustainability, vol. 15, no.1, 2023, p. 473,
doi:10.3390/su15010473.
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Comment: One commenter suggested that the proposed cylinder
management and tracking requirements do not appear to be based on a
complete and legally sufficient analysis of the best available data. As
such, the commenter stated that that EPA may have significantly
overstated the environmental benefits. Another commenter expressed
concern that the proposed rule requiring machine readable tracking
identifiers on all containers of HFCs that could be used for the
servicing, repair, or installation of refrigerant-containing equipment,
including both refillable and disposable cylinders, and the requirement
to record specific data during the movement of these cylinders will
impose significant costs and investment by all industry stakeholders.
Response: EPA responds that it is not finalizing the cylinder
tracking requirements at this time, and thus costs and benefits related
to those provisions are not included in the RIA addendum and the
Economic Impact and Benefits TSD for the final rule. EPA has explained
the data used to assess the costs and benefits of the requirement to
manage disposable cylinders and send heels to reclaimers in the RIA
addendum and the Economic Impact and Benefits TSD. Further, EPA has
used information provided by the commenters to perform sensitivity
analyses of the Agency's estimate, and notes that in all cases
examined, there are environmental benefits, and the savings outweigh
the costs even without considering the monetized climate benefits
(i.e., even without applying SC-HFC values to the emission reductions).
However, as noted previously in this preamble, while EPA included
estimates of the costs and benefits of this rulemaking in the RIA
addendum to provide the public with information on the relevant costs
and benefits of this action and to comply with Executive Orders, the
analysis in the RIA addendum does not form a basis or rationale for any
of the provisions EPA is promulgating in this rulemaking. Further,
although EPA is using the SC-HFCs for purposes of some of the analysis
in the RIA addendum, this action does not rely on those estimates of
these costs as a record basis for the Agency's action. EPA would reach
the conclusions in this rule even in the absence of the SC-HFCs. EPA's
reasons
[[Page 82848]]
for establishing the requirements related to disposable cylinders are
explained in section IV.G of this preamble.
Comment: Another commenter stated that the container requirements
would likely have the greatest impact on the smallest firms in the
industry with the fewest resources to spare. The commenter stated that
any increased costs associated with the container provisions will
ultimately be passed on to consumers, regardless of whether the initial
impact is absorbed by contractors or distributors.
Response: In Appendix G of the RIA addendum, EPA performed an
assessment under the guidelines of the Small Business Regulatory
Enforcement Fairness Act of 1996 and found that the rulemaking can be
presumed not to have a significant economic impact on a substantial
number of small entities (SISNOSE). Further, to the extent that the
comment pertains to the proposed cylinder tracking requirements, EPA
notes that it is not finalizing the cylinder tracking requirements at
this time.
Comment: One commenter suggested that the implementation of the
proposed rule's requirements would unduly burden disadvantaged
communities. The commenter stated that it may not be economically
viable to retrofit, retire, or replace an existing system to comply
with the mandates in the proposed rule due to the complex and
integrated nature of grocery store refrigeration systems. The commenter
also mentioned that rural and poor communities are more likely to have
older stores with older systems that leak at a higher rate than average
and with tighter profit margins that make it hard for store owners to
pay for extensive repairs, retrofits, or replacements of their
refrigeration systems. Additionally, the commenter stated that expenses
associated with system maintenance under the proposed requirements
would also increase the chances that store owners would be unable to
keep less profitable stores open and those stores that remain open
would be forced to raise food prices in disadvantaged areas and, in
some situations, exacerbate the ``food desert'' problem in certain
areas of the country.
The commenter also stated that the proposed requirements to use
only reclaimed refrigerants would push additional costs onto the retail
food sector which is already struggling due to low profit margins and
inflation. The commenter claimed that these high costs may also cause
more frequent and longer repairs, which lead to store shutdowns,
greater food safety risk, and potential removals of refrigerated
sections altogether. The commenter stated that such an increased
financial burden will likely impact older stores, and those either
owned by or residing in minority and already economically stressed
communities.
Another commenter stated that the premature retirement of certain
equipment would lead to a disproportionate burden on poorer communities
that are unable to replace their equipment. The commenter stated that
EPA did not evaluate the implications of this part of its proposed rule
on poor communities and users. The commenter further stated that these
issues and the environmental burdens caused by disposal of prematurely
obsolete equipment should also be considered.
Lastly, a separate commenter stated that EPA must analyze how
increased costs on the baking sector and other food production sectors
that use refrigeration will contribute to increased food price
inflation and basket of goods impacts generally. The commenter stated
that EPA must also analyze how these increased cost pressures might
impact food prices cumulatively when considered together with what they
characterized as other inflationary pressures, such as EPA's biodiesel
and renewable diesel mandates under the Renewable Fuel Standard Program
(RFS).
Response: EPA recognizes the importance of the food cold chain and
food retailers servicing various communities, including avoiding food
deserts. However, EPA disagrees that the requirements finalized in this
rule will result in undue burden and store closures or the loss of
access to food. Store owners may replace broken or inefficient HFC
components and save money by repairing leaks in their existing systems.
With regard to the comments concerning passing on costs by raising the
prices of retail food, EPA reiterates that the overall HFC phasedown
will impact the costs of HFC refrigerants in the future. The commenter
did not provide detailed information on how specific elements of this
rule would result in costs that would be passed on to the consumer and
in particular how that would differ from the longstanding ODS
requirements or existing HFC requirements. Additionally, some of the
requirements in this final rule have been modified from the proposal,
and some of those modifications have the effect of easing burden. For
example, the requirements for ALD systems include those existing
commercial refrigeration equipment with charge sizes of 1,500 pounds or
more that were installed on or after January 1, 2017, whereas the
proposal included all existing systems with charge sizes of 1,500
pounds or more. Overall, the refrigerant management provisions help to
maintain the health of appliances. This can be crucial for refrigerant-
containing appliances in the RACHP subsectors that are relevant to
handling food products, such as supermarket systems, where the intended
function is to ensure food products are maintained at appropriate
temperatures to avoid spoilage and food waste. Successful repair of
leaks and avoiding leaks are a few ways to help ensure that these
appliances are operating efficiently, as intended, and can help to
avoid unnecessary food waste.
EPA appreciates concern over food costs; however, with the delayed
compliance dates for the reclaim requirements, the Agency anticipates
that this will give the market time to adjust to the changes. In the
RIA addendum, EPA conservatively assumed that reclaimed refrigerant
would cost 10 percent more than virgin refrigerant. Based on
consideration of a public comment from a reclaimer stating that virgin
and reclaimed refrigerant are the same price, the Agency has also
included a sensitivity analysis under that assumption.
In response to the comment on the baking sector, the commenter did
not provide sufficient information to support their claims or analyze
the specific details of their assertion that the ``rule will contribute
to increased food prices and basket of goods impacts, generally.'' Nor
is EPA aware of such information or analyses in the record for this
rule. EPA estimated the overall costs and benefits of the rule in the
RIA addendum and the Economic Impact and Benefits TSD, and to the
extent the baking sector is affected by the rule, those estimates
include those costs and benefits that will be directed towards that
sector. Evaluation of ``other inflationary pressures,'' including the
commenters' assertions of such impacts from the Renewable Fuel
Standard, is outside of the scope of this rulemaking and so is not
included in the RIA addendum or the Economic Impact and Benefits TSD.
Moreover, the commenter has not provided any information to indicate
that such inflationary pressures would affect this rule differently
than the baseline scenarios.
VII. How is EPA considering environmental justice?
As part of the RIA addendum for the final rulemaking, EPA updated
the environmental justice analysis that was previously conducted for
the proposed
[[Page 82849]]
rule. The updated environmental justice analysis utilized the same
analytical approach used previously, along with the addition of more
reclamation facilities identified since publication of the proposed
rule.
Executive Order 14096, signed April 21, 2023, builds on the prior
executive orders to further advance environmental justice (88 FR
25251), including Executive Order 12898 (59 FR 7629, February 16, 1994)
and Executive Order 14008 (86 FR 7619, January 27, 2021) which
establish Federal executive policy on environmental justice.
EPA defines \190\ environmental justice as the ``just treatment and
meaningful involvement of all people, regardless of income, race,
color, national origin, Tribal affiliation, or disability, in agency
decision-making and other Federal activities that affect human health
and the environment so that people: (i) Are fully protected from
disproportionate and adverse human health and environmental effects
(including risks) and hazards, including those related to climate
change, the cumulative impacts of environmental and other burdens, and
the legacy of racism or other structural or systemic barriers; and (ii)
have equitable access to a healthy, sustainable, and resilient
environment in which to live, play, work, learn, grow, worship, and
engage in cultural and subsistence practices.'' \191\ Meaningful
involvement means that: (1) Potentially affected populations have an
appropriate opportunity to participate in decisions about a proposed
activity that will affect their environment and/or health; (2) the
public's contribution can influence the regulatory Agency's decision;
(3) the concerns of all participants involved will be considered in the
decision-making process; and (4) the rule-writers and decision-makers
seek out and facilitate the involvement of those potentially
affected.\192\ The term ``disproportionate impacts'' refers to
differences in impacts or risks that are extensive enough that they may
merit Agency action. In general, the determination of whether there is
a disproportionate impact that may merit Agency action is ultimately a
policy judgment which, while informed by analysis, is the
responsibility of the decision-maker. The terms ``difference'' or
``differential'' indicate an analytically discernible distinction in
impacts or risks across population groups. It is the role of the
analyst to assess and present differences in anticipated impacts across
population groups for both the baseline and regulatory options, using
the best available information (both quantitative and qualitative) to
inform the decision-maker and the public.\193\
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\190\ EPA recognizes that Executive Order 14096 (88 FR 25251,
April 21, 2023) provides a new terminology and a new definition for
environmental justice. For additional information, see https://www.federalregister.gov/documents/2023/04/26/2023-08955/revitalizing-our-nations-commitment-to-environmental-justice-for-all.
\191\ See, e.g., Environmental Protection Agency.
``Environmental Justice.'' Available at: https://www.epa.gov/environmentaljustice.
\192\ The criteria for meaningful involvement are contained in
EPA's May 2015 document ``Guidance on Considering Environmental
Justice During the Development of an Action.'' Environmental
Protection Agency, 17 Feb. 2017. Available at: https://www.epa.gov/environmentaljustice/guidance-considering-environmental-justice-during-development-action.
\193\ The definitions and criteria for ``disproportionate
impacts,'' ``difference,'' and ``differential'' are contained in
EPA's June 2016 document ``Technical Guidance for Assessing
Environmental Justice in Regulatory Analysis.'' Available at:
https://www.epa.gov/environmentaljustice/technical-guidance-assessing-environmental-justice-regulatory-analysis.
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In addition, the Presidential Memorandum on Modernizing Regulatory
Review calls for procedures to ``take into account the distributional
consequences of regulations, including as part of any quantitative or
qualitative analysis of the costs and benefits of regulations, to
ensure that regulatory initiatives appropriately benefit, and do not
inappropriately burden disadvantaged, vulnerable, or marginalized
communities.'' \194\ OMB Circular A-4 provides details regarding
identifying relevant groups and approaches to analyzing distributional
effects.\195\ EPA also released its June 2016 ``Technical Guidance for
Assessing Environmental Justice in Regulatory Analysis'' (2016
Technical Guidance) to provide recommendations that encourage analysts
to conduct the highest quality analysis feasible, recognizing that data
limitations, time and resource constraints, and analytic challenges
will vary by media and circumstance.\196\
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\194\ Presidential Memorandum on Modernizing Regulatory Review,
January 20, 2021. Available at: https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/modernizing-regulatory-review/.
\195\ Office of Management & Budget, Circular No. A-94,
Guidelines and Discount Rates for Benefit-Cost Analysis of Federal
Programs 17-18, November 9, 2023. Available at: https://www.whitehouse.gov/wp-content/uploads/2023/11/CircularA-94.pdf.
\196\ Technical Guidance for Assessing Environmental Justice in
Regulatory Analysis, June 2016. Available at: https://www.epa.gov/sites/default/files/2016-06/documents/ejtg_5_6_16_v5.1.pdf.
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For this action, EPA conducted an environmental justice
analysis.\197\ For this analysis, EPA used a methodology similar to
that used as part of the Allocation Framework Rule (86 FR 55116,
October 5, 2021), the 2023 Technology Transitions Rule (88 FR 73174,
October 24, 2023), and the proposal of this rule, for consistency and
because these rules have in common that they affect the industries
involved in using HFCs, although there are some differences in the
nature of those effects and the entities affected. The information
provided in this section is for informational purposes only; EPA is not
relying on the information in this section as a record basis for this
action. EPA evaluated communities surrounding the 38 identified HFC
reclamation facilities \198\ and followed the analytical approach used
in the Allocation Framework Rule RIA. This update uses information from
the AirToxScreen 2019 dataset.
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\197\ EPA recognizes that new terminology and a new definition
for environmental justice were established in Executive Order 14096
(88 FR 25251, April 21, 2023). When the analysis of the proposed
rule was performed, EPA was operating under prior guidance available
here: https://www.epa.gov/sites/default/files/2015-06/documents/considering-ej-in-rulemaking-guide-final.pdf.
\198\ As discussed in the RIA addendum, EPA used data from
reports required under Section 608 of the Clean Air Act, EPA's
Enforcement and Compliance History Online (ECHO) database, and
information provided by company websites to identify facilities that
are active HFC reclaimers.
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The analysis shows that communities near the 38 identified HFC
reclamation facilities are generally more diverse than the national
average with respect to race and ethnicity. While the median income of
these communities is slightly higher than the national average, there
are more low-income households. Across the 38 facilities, total
respiratory risk and total cancer risk are higher than the national
average (total cancer risk is between 28 and 29 for the communities
near the facilities, compared to 26 for the national average, and total
respiratory risk is 0.34 compared to the national average of 0.31). The
risk for those closer to the facilities appears slightly lower than for
those at greater distances (5- and 10-mile radii).
This rule is expected to result in benefits in the form of reduced
GHG emissions. The analysis conducted for this rule also estimates that
a portion of these benefits would be incremental to emissions
reductions that were anticipated under the Allocation Framework Rule
and the 2023 Technology Transitions Rule, thus further reducing the
risks of climate change associated with the emissions avoided through
this rule.
While providing additional overall climate benefits, this rule may
also result in changes in emissions of air pollutants or other
chemicals which are potential byproducts of HFC reclamation processes
at affected
[[Page 82850]]
facilities. The market for reclaimed HFCs could drive changes in
potential risk for communities living near these facilities, but the
changes in emissions that could have local effects are uncertain.
Further, the nature and location of the emission changes are uncertain.
Moreover, there is insufficient information at this time about which
facilities will change reclamation processes. Given limited information
at this time, it is unclear to what extent this rule will impact
existing disproportionate adverse effects on communities living near
HFC reclamation facilities.\199\ The Agency will continue to evaluate
the impacts of this rulemaking on affected communities, including
communities with environmental justice concerns, and consider further
action, as appropriate, to protect health in communities affected by
HFC reclamation.
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\199\ Statements made in this section on the environmental
justice analysis draw support from the following citations: Banzhaf,
Spencer, Lala Ma, and Christopher Timmins. 2019. Environmental
justice: The economics of race, place, and pollution. Journal of
Economic Perspectives; Hernandez-Cortes, D. and Meng, K.C., 2020. Do
environmental markets cause environmental injustice? Evidence from
California's carbon market (No. w27205). NBER; Hu, L., Montzka,
S.A., Miller, B.R., Andrews, A.E., Miller, J.B., Lehman, S.J.,
Sweeney, C., Miller, S.M., Thoning, K., Siso, C. and Atlas, E.L.,
2016. Continued emissions of carbon tetrachloride from the United
States nearly two decades after its phaseout for dispersive uses.
Proceedings of the National Academy of Sciences; Mansur, E. and
Sheriff, G., 2021. On the measurement of environmental inequality:
Ranking emissions distributions generated by different policy
instruments.; U.S. EPA. 2011. Plan EJ 2014. Washington, DC: U.S.
EPA, Office of Environmental Justice.; U.S. EPA. 2015. Guidance on
Considering Environmental Justice During the Development of
Regulatory Actions. May 2015.; USGCRP. 2016. The Impacts of Climate
Change on Human Health in the United States: A Scientific
Assessment. U.S. Global Change Research Program, Washington, DC.
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Comment: One commenter expressed support for EPA's approach on
environmental justice and noted that ensuring safety for technicians
and consumers will benefit all end users. The commenter noted areas for
EPA's consideration regarding impacts on low- and medium-income
families in its comments, including allowing some flexibility with
retrofit and retirement requirements and considering using some of
EPA's budget to fund the purchase of recovery equipment for small
contractors serving low- and medium-income communities.
Response: EPA acknowledges the commenter's general support for the
approach the Agency has taken for its environmental justice analysis.
EPA acknowledges the commenter's suggestion that portions of the Agency
budget be redirected to support the purchase of recovery equipment. The
Agency notes that to date, funds have not been appropriated for such a
purpose. EPA clarifies that leak repair requirements do not apply to
residential RACHP equipment, and that EPA is not requiring refrigerant-
containing appliances to be retrofitted to a lower-GWP refrigerant.
Comment: One commenter stated that there needs to be greater
awareness of the environmental impacts for those who work with HFC
refrigerants and to those who advocate for environmental justice.
Response: EPA acknowledges the commenter's support for greater
awareness of environmental impacts in this area. EPA notes that the
discussion of environmental justice in this action may help increase
awareness of these issues.
VIII. How is EPA responding to other comments on the proposed rule?
Comment: One commenter stated there is no authority in the AIM Act
(or in the CAA) for mandating facilities install leak detection systems
to be used in the normal operation of equipment between servicing. The
commenter stated that the Agency's assertion that leak detection is
``an activity regarding the servicing or repair of equipment''
stretches the actual languages used by Congress beyond their intent and
cannot be legally supported. The commenter also mentioned that EPA does
not have the authority to penalize facility owners (or equipment
owners) for mismanagement of refrigerant resulting from errors made by
certified service providers, nor does EPA have the power to regulate
loss of refrigerant during normal operations. While the commenter
generally agreed with EPA's regulation and best practices for
technicians, they claimed the proposed rule does not indicate how that
authority extends to the regulation of facility owners. Accordingly,
the commenter stated the Agency legally may only require leak detection
and prevention during the time that service providers are maintaining
refrigeration systems. Further, the commenter stated that EPA has
previously recognized that refrigeration equipment will inherently lose
refrigerant charge over time and that refrigeration and air
conditioning equipment does often leak. If taken to its logical
conclusion, the overly broad interpretation of the section 608 rules
and the proposed rule to encompass normal operation, in theory, would
also extend liability to equipment manufacturers whose appliances would
violate the venting prohibition by merely selling equipment into
commerce because the equipment might leak and require replacement of
refrigerant. Thus, EPA lacks authority to impose liability for normal
operation of refrigeration equipment, it cannot impose liability for
replacement of refrigerant that is lost routinely during normal
operation.
Another commenter stated that EPA should acknowledge that the
Agency has no authority under the AIM Act or CAA section 608 to
penalize facility or equipment owners for management of refrigerant
resulting from errors made by service providers or regulate the loss of
refrigerant during normal operations. The commenter cites the use of
the term ``maintenance'' in section 608(c), but not in 608(a), as
justification that Congress intended EPA to regulate servicing of
equipment by technicians, rather than equipment by facility owners. The
commenter further stated that if section 608 is interpreted to
encompass normal operation of equipment, an equipment manufacturer
would violate the venting prohibition by selling equipment into
commerce, because their equipment might leak. Further, the commenter
stated that if EPA lacks authority to ``impose liability for normal
operation of refrigeration equipment'' the Agency cannot hold others
liable for replacement of refrigerant that is lost in routine
operation. The commenter concluded that EPA's authority is limited
under section 608 to regulating ``intentional or negligent venting'' by
service providers during servicing, and that the same applies to EPA's
authority under the AIM Act.
The commenter claimed that even if EPA could impose penalties for
refrigerant release during normal operation, section 608 and subsection
(h) do not enable EPA to impose monetary penalties on facilities
owners, unless the owner was using its own personnel to service
equipment. The commenter cited EPA's prior refrigerant management rule
under section 608 as overstepping the Agency's authority to impose the
venting prohibition on actions taken over the course of maintaining,
servicing, repairing, or disposing of equipment. The commenter further
stated that the AIM Act does not give the Agency the authority to
regulate facility owners or compel them to install leak detection
systems to be used in normal operation of equipment.
Response: With regards to one commenter's assertions that the AIM
Act did not give EPA the authority to require facilities to install
leak detection systems that would be used in normal operations or
authority to regulate owners or operators, the Agency
[[Page 82851]]
disagrees with the commenter's claims. As discussed throughout this
notice, subsection (h)(1) directs EPA to promulgate regulations to
control, where appropriate, any practice, process, or activity
regarding the servicing, repair, disposal, or installation of
equipment, for purposes including maximizing reclamation and minimizing
the release of HFCs from equipment. As explained elsewhere in this
notice, EPA interprets this language to encompass practices, processes,
and activities that occur before, during, and after servicing, repair,
disposal, or installation of equipment. EPA understands this provision
to authorize both the leak repair provisions described in section IV.C
and the required use of ALD as described in IV.D because the
requirements govern practices, processes, or activities regarding the
servicing, repair, disposal, or installation of equipment. Determining
that equipment is leaking is a critical first step in understanding
that it needs servicing or repair, or perhaps to be disposed of and
replaced, depending on whether or not the leak can be repaired. The ALD
equipment that must be installed and operated under this requirement
will inform equipment owners and operators when the equipment is
leaking, and EPA expects that this knowledge will lead to earlier
repairs, which in turn will prevent releases of HFCs (and potentially
costly refrigerant losses). Thus, installing and operating an ALD
system is a ``process, practice or activity regarding servicing,
repair, disposal, or installation of equipment'' because taking these
steps will alert the equipment owner or operator when servicing or
repair of equipment may be required. Accordingly, there is a direct
connection between installing and operating the ALD system and
servicing or repair (or in some cases, disposal) of equipment.
EPA agrees with the comment that subsection (h) conveys authority
to regulate technicians' activities during servicing and repair, but
contrary to the commenter's view, nothing in the text of subsection (h)
suggests that EPA is precluded from also regulating activities during
normal operations that are within the scope of subsection (h) or from
regulating equipment owner or operators. Moreover, imposing such
restrictions could limit EPA's ability to ensure that the regulations
under subsection (h) achieve the stated purposes in the statute because
activities that occur during normal operations, or that are taken by
equipment owners or operators, will affect efforts to maximize
reclamation, minimize releases \200\ from equipment, and ensure the
safety of technicians and consumers. Further, the statutory phrase for
what EPA regulations under (h)(1) may control--``any process, practice
or activity regarding servicing, repair, disposal, or installation of
equipment'' (emphasis added)--indicates that Congress did not limit EPA
to only regulate processes, practices or activities during servicing,
repair, disposal, or installation of equipment. Indeed, the authority
to regulate to ``control . . . activities regarding servicing''
includes authority to require that servicing be done, including to
address refrigerant losses that occur during normal operation of
equipment. Further EPA notes that it considers servicing to include a
range of activities involved in preserving equipment in the normal
working order, as some form of ongoing and routine servicing is
necessary for proper functioning of equipment.
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\200\ The Agency recognizes that refrigerant-containing
appliances may lose refrigerant charge over time. However,
manufacturers of refrigerant-containing equipment have made great
strides in manufacturing equipment less prone to leaks.
Nevertheless, refrigerant-containing equipment, especially with
larger charge sizes, could leak significant amounts of refrigerant
before a leak is detected.
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To the extent these comments relate to EPA's regulations under CAA
section 608, they are outside the scope of this rulemaking as the
Agency did not reopen the section 608 rules as part of this rulemaking
and thus require no further response.\201\ However, aspects of this
rule are analogous to similar EPA rules under CAA section 608, which
apply to owners and operators. For example, in the preamble to the 1993
CAA 608 final rule, EPA explained that it had made ``additions to the
scope section to clarify that the rule covers refrigerant reclaimers,
appliance owners, and manufacturers of appliances and recycling and
recovery equipment in addition to persons servicing, repairing,
maintaining, and disposing of appliances.'' 58 FR 28707 (emphasis
added); see also 58 FR 28681. EPA explained that the rule required the
owner of the equipment to either authorize the repair of substantial
leaks or develop the equipment retirement/retrofit plan within 30 days
of discovering a leak above the standard and that the owner has the
legal obligation to ensure that repairs are made to equipment where the
leak rate exceeds the standard. See 81 FR 82272. For similar reasons as
under section 608, including the role of the equipment owner and
operator in determining whether to authorize repair of a leak or
whether to retire or retrofit the equipment, this final rule finds it
reasonable to include the owners and operators among the regulated
entities, consistent with the Agency's practice under the CAA Title VI.
EPA has found this approach to be workable, and using the same approach
in this final rule should be familiar to entities that have experience
implementing the CAA 608 rules, reduce confusion, and facilitate
compliance. For this reason, and also given the role of equipment
owners and operators in making decisions about the servicing, repair,
disposal, and installation of equipment, EPA concludes that it is
appropriate to structure the regulations so that equipment owners and
operators may be held responsible for certain violations, even if the
actions of a technician may play a role in the violation, rather than
adopt the commenter's view, which could improperly shield owners and
operators from liability even if a decision or action they took
resulted in or contributed to the violation. Further, EPA notes that
while certain aspects of its experience in implementing certain
requirements under CAA section 608 inform this rulemaking and while
there are certain analogies between this rule and requirements
established under CAA section 608, it has also been clear that AIM
subsection (h) and CAA section 608 are separate and distinct statutory
authorities, and that this rule is established under AIM subsection
(h), such that the text and purposes of that provision govern this
action. While there are some similarities in statutory text between AIM
subsection (h) and CAA section 608, there are also meaningful
differences to consider. Thus, to the extent that commenters suggest
that a limitation they perceive in CAA section 608 would also somehow
simply apply to EPA's authority under the AIM Act, without further
evaluation of the relevant provisions of the AIM Act, EPA disagrees.
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\201\ EPA further notes that this comment states that it
incorporates by reference prior comments submitted on prior proposed
rules under CAA section 608. EPA notes that in order to merit a
response, comments on a proposed rule must be stated with
specificity, so that the Agency can identify the commenter's concern
or requested alteration to the rule at issue. A commenter's
statement, such as the statement in this comment, that they are
incorporating prior comments or arguments, without any further
explanation of how those prior comments or arguments relate to the
proposed rule or how the Agency should change its proposal, do not
require a response.
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EPA disagrees with commenters' assertions that it does not have
authority under subsection (h) of the AIM Act to regulate the loss of
refrigerant during normal operations or to regulate or penalize
facility owners or equipment
[[Page 82852]]
operators, including imposing penalties on them for violations of
requirements under the AIM Act. Under subsection (h), for purposes
including maximizing reclaiming and minimizing the release of a
regulated substance from equipment, Congress directed the Administrator
to promulgate regulations to control practices, processes, or
activities regarding the servicing, repair, disposal, or installation
of equipment that involves a regulated substance and the reclaiming of
a regulated substance used as a refrigerant. As explained in prior
sections of this document, establishes regulations that apply to HFCs
and or a substitute for an HFC with a GWP greater than 53 to control
practices, processes, or activities regarding servicing, repair,
disposal, or installation of equipment. Accordingly, the requirements
established under this rule are within the scope of EPA's authority
under subsection (h). For example, as explained in section IV.C.3 in
this notice, EPA is establishing leak repair requirements that control
practices, processes, or activities regarding servicing or repair of
appliances and that provide persons engaged in such activities with
additional clarity and certainty on how to ensure that their actions
comport with the requirements established in this action. While many of
these requirements regulate the activities of the person working on
equipment, e.g., those performing the leak repair, Congress did not
limit EPA's authority under (h)(1) to only regulating activities that
are performed directly on equipment or only those persons or entities
who are directly working on equipment, but rather, as noted previously,
authorized EPA to regulate a broader scope of processes, practices or
activities regarding servicing, repair, disposal, or installation of
equipment. EPA interprets the direction under subsection (h)(1) to
include authority to regulate equipment owners and operators, as they
make decisions and have control over processes, practices or activities
regarding servicing, repair, disposal, or installation of equipment,
and their decisions and actions will affect efforts to maximize
reclamation, minimize releases from equipment and ensure the safety of
technicians and consumers. Even if an owner or operator is not using
their own personnel to service equipment, their decisions and actions
could affect compliance with the requirements under this rule, such as
the timing of leak repair activities and the extent to which leaks are
repaired.
Further, with respect to EPA's authority to impose penalties on
owners and operators, EPA responds that subsection (k)(1)(C) of the AIM
Act provides that certain sections of the CAA, including section 113,
apply to the AIM Act and any regulations EPA promulgates under the AIM
Act as though the AIM Act were part of Title VI of the CAA. Among other
things, section 113(a)(3) of the CAA, entitled ``EPA enforcement of
other requirements'' authorizes the EPA Administrator to take certain
measures if the Administrator ``finds that any person has violated, or
is in violation of, any . . . requirement or prohibition of . . .
subchapter VI of this chapter, including, but not limited to, a
requirement or prohibition of any rule . . . promulgated under [that]
subchapter[ ].'' Similarly, the Administrator's enforcement authorities
under section 113 of the CAA also include the assessment of monetary
civil penalties ``against any person'' if the Administrator finds that
``such person'' has violated or is violating any requirement or
prohibition of Title VI of the CAA, ``including, but not limited to, a
requirement or prohibition of any rule'' promulgated under Title VI.
These provisions apply to the AIM Act and this rule by operation of
subsection (k)(1)(C) of the AIM Act. Facility owners or operators are
within the broad definition of ``person'' in section 302(e) of the CAA.
Accordingly, EPA has authority to enforce the requirements and
prohibitions of this rule against facility owners or operators,
consistent with section 113 of the CAA. While, as noted previously,
this action is separate and distinct from EPA's rules under CAA section
608, EPA further observes that, as described further in section IV.D
above, this approach to applying regulatory requirements to owners and
operators is similar to and consistent with EPA's approach to
requirements in analogous rules under CAA section 608, which also
include requirements that apply to owners and operators.
EPA also disagrees with commenters' assertion that EPA does not
have authority under subsection (h) of the AIM Act to regulate
activities during normal operations. Such restrictions could limit
EPA's ability to ensure that the regulations under subsection (h)
achieve the stated purposes in the statute because activities that
occur during normal operations will affect efforts to maximize
reclamation, minimize releases from equipment and ensure the safety of
technicians and consumers. Further, the statutory phrase for what EPA
regulations under (h)(1) may control--``any process, practice or
activity regarding servicing, repair, disposal, or installation of
equipment'' (emphasis added)--indicates that Congress did not limit EPA
to only regulate processes, practices, or activities during servicing,
repair, disposal, or installation of equipment. Indeed, the authority
to regulate to ``control . . . activities regarding servicing [or]
repair'' includes authority to require that servicing or repair be
done, including to address refrigerant losses that occur during normal
operation of equipment. Further EPA notes that it considers servicing
to include a range of activities involved in keeping equipment in the
normal working order, as some form of ongoing and routine servicing is
necessary for proper functioning of equipment.
EPA responds to other comments regarding leak repair in section
IV.C above and regarding the use of ALD systems in section IV.D.1
above.
Comment: One commenter questioned EPA's authority to regulate
sources on the Outer Continental Shelf (OCS) in the western and central
Gulf of Mexico pursuant to 40 CFR part 84, and asked EPA to confirm
that OCS sources in those two areas are excluded from the applicability
of the proposed regulations in 40 CFR part 84. The commenter stated
that 40 CFR part 55 delineates the EPA's air programs applicable to the
OCS and that under 40 CFR 55.3(a) the scope of this part extends to all
OCS sources except those west of 87.5 degrees longitude. The commenter
also claimed that under the Outer Continental Shelf Lands Act (OCSLA)
the Department of the Interior (DOI) has the authority to administer
programs and rules relating to the OCS, including those related to air
quality, and asserted that that authority is not shared with EPA,
citing California v. Kleppe, 604 F.2d 1187, 1193 (9th Cir. 1979). The
commenter further stated that section 328 of the CAA sets EPA's
regulatory authority in the OCS, limiting that authority to sources
east of longitude 87 degrees 30 minutes. The commenter stated that the
intent of the AIM Act and the proposed rule were to regulate air
quality and emissions related to HFCs and concluded that there is
overlap between EPA's authority under the AIM Act and the DOI's
authority. The commenter stated that EPA's proposed regulations to
track, record, and provide information regarding the sale and
distribution of HFCs are ``similar to requirements in 43 U.S.C.
[section] 1348(b)(3) for lease and permit holders to provide `documents
and records which are pertinent to . . . environmental protection, as
may be
[[Page 82853]]
requested' under OCSLA.'' \202\ The commenter further stated that AIM
Act subsection (h) provides EPA broad authority to promulgate
regulations but that ``the AIM Act is silent on the question of OCS
sources and in (k)(1)(C) expressly applies sections of title VI of the
CAA to EPA's authority'' in the proposed regulations. The commenter
further stated that the AIM Act ``does not alter the existing division
of jurisdiction between the EPA and DOI with regard to air quality
regulations applicable to OCS sources'' and that, ``[a]ccordingly, . .
. 40 CFR part 84 is not applicable to the western and central [Gulf of
Mexico],'' \203\ and the regulation of sale and distribution of HFCs
does not extend to those areas without a grant of similar authority to
the DOI and the Bureau of Ocean Energy Management (BOEM) under the AIM
Act. The commenter acknowledged that 40 CFR part 84 would apply to the
eastern Gulf of Mexico, given that BOEM has not been delegated
authority over air quality in this specific area.
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\202\ See comment number EPA-HQ-OAR-2022-0606-0098 at 2.
\203\ See comment number EPA-HQ-OAR-2022-0606-0098 at 2-3.
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Response: EPA disagrees with the commenter's broad assertions that
EPA does not have authority under the AIM Act to issue regulations
pertaining to HFCs and their substitutes related to offshore operations
in the western and central Gulf of Mexico. EPA also disagrees with the
commenter's assertions that the regulations finalized in this action
under subsection (h) of the AIM Act are not applicable in the western
and central Gulf of Mexico and that OCS sources situated in the western
and central Gulf of Mexico are excluded from these regulations. The
commenter cites California v. Kleppe, 604 F.2d 1187, 1193-94 (9th Cir.
1979) (``Kleppe'') for the proposition that DOI has ``sole'' authority
to promulgate air quality regulations for OCS sources, which is not
shared with EPA. But Kleppe addresses DOI's authorities over offshore
activities as those authorities existed in 1979, long before both the
1990 Amendments to the CAA, which authorized EPA to regulate air
emissions from OCS sources (42 U.S.C. 7627, Pub. L. 101-549, Title
VIII, Sec. 801 (``OCS air pollution''), November 15, 1990), and
Congress's 2020 enactment of the AIM Act, which authorized EPA to
promulgate regulations to address HFCs (42 U.S.C. 7675, Pub. L. 116-
260, Division S, Sec. 103 (``American Innovation and Manufacturing''),
December 27, 2020). Kleppe therefore does not speak to EPA's current
authorities under either the CAA or the AIM Act. Additionally, while
the commenter states that aspects of this rule are ``similar to'' DOI's
authorities to seek records and documents under OCSLA, it fails to
identify any conflict between these requirements or to provide any
other support for a conclusion that the relevant provisions cannot all
be given effect.
This rule implements Congress's direction in subsection (h)(1) of
the AIM Act for EPA to establish regulations ``to control, where
appropriate, any practice, process or activity regarding the servicing,
repair, disposal, or installation of equipment'' that involves an HFC
or a substitute for an HFC, or the reclaiming of an HFC or a substitute
for an HFC used as a refrigerant, for purposes of maximizing
reclamation, minimizing releases of HFCs from equipment, and ensuring
the safety of technicians and consumers. The AIM Act, which was enacted
separately from the CAA, does not exclude any geographic area within
the United States from the scope of EPA's authorities under in the Act.
In fact, certain provisions of the Act clearly indicate that the Act
applies throughout the United States. For example, subsection (b)(6) of
the AIM Act defines the term ``import'' to mean ``to land on, bring
into, or introduce into, or attempt to land on, bring into, or
introduce into, any place subject to the jurisdiction of the United
States.''
The commenters cite certain geographic restrictions on EPA's
authority to regulate air pollution from OCS sources under CAA section
328 and EPA's implementing regulations in 40 CFR part 55, suggesting
that EPA's regulatory authority over emissions sources in the Gulf of
Mexico is limited to ``sources east of longitude 87 degrees 30
minutes'' (or 87.5 degrees longitude) under these statutory and
regulatory provisions. Section 328 of the CAA, however, pertains only
to EPA's authorities under the CAA with respect to ``OCS sources'' and
has no bearing on EPA's independent authorities under the AIM Act and
other Federal statutes. In addition to the AIM Act, which, by its
terms, applies to activities such as production and consumption of
HFCs, restrictions on use of HFCs in the sectors or subsectors in which
they are used, and practices, processes, or activities regarding
servicing, repair, disposal, or installation of equipment that involves
an HFC or a substitute for an HFC, or the reclaiming of an HFC or a
substitute for an HFC used as a refrigerant, the Deepwater Port Act
directs that Federal laws apply to deepwater ports ``and to activities
connected, associated, or potentially interfering with the use or
operation of any such port, in the same manner as if such port were an
area of exclusive Federal jurisdiction located within a State. . . .''
33 U.S.C. 1518(a)(1). Thus, any deepwater port or associated activity
that would be subject to the AIM Act if located onshore remains subject
to these requirements offshore, both in the Gulf of Mexico and in other
waters over the OCS. The requirements of the AIM Act, the Deepwater
Port Act, and other Federal laws apply by their terms to sources
located offshore, independent of the authorities and limitations
specified in CAA section 328 with respect to OCS sources.
The commenter's reference to section (k)(1)(C) of the AIM Act
provides no support for a claim that EPA's authorities under the AIM
Act are limited by CAA section 328. Section (k)(1)(C) of the AIM Act
states that ``sections 113, 114, 304, and 307 of the Clean Air Act (42
U.S.C. 7413, 7414, 7604, 7607) shall apply'' to the AIM Act and any
regulations EPA promulgates under the AIM Act as though the AIM Act
were part of Title VI of the CAA. These provisions of the CAA pertain
to Federal and citizen enforcement, EPA's information-gathering
authorities, and judicial review of EPA's actions under the CAA. By
directing that these provisions apply to the AIM Act and any
implementing regulations promulgated by EPA to implement the AIM Act,
Congress provided EPA and citizens with the same enforcement and
information-gathering authorities that the CAA provides and vested the
United States Courts of Appeals with jurisdiction to review challenges
to EPA's final actions under the AIM Act, in the same manner as under
the CAA. CAA section 328 (42 U.S.C. 7627), by contrast, authorizes EPA
to ``establish requirements to control air pollution from Outer
Continental Shelf sources'' in specific offshore areas. Section 328 is
not included among the CAA provisions expressly identified in section
(k)(1)(C) of the AIM Act, and there is no indication in either the CAA
or the AIM Act that Congress intended for EPA's regulatory authorities
with respect to OCS sources under CAA section 328 to apply to or limit
its authorities with respect to HFCs or HFC substitutes under the AIM
Act.
The AIM Act itself creates no exemption for emissions sources in
the western and central Gulf of Mexico from its requirements.
Establishing an exemption from the requirements of this rule for
sources in the western and central Gulf of Mexico could create an
unequal framework rather than fairly
[[Page 82854]]
applying regulations under the AIM Act subsection (h) to similarly
situated sources, including those in the eastern Gulf of Mexico, which
the commenter concedes would be subject to these rules.
EPA further notes that this ER&R rule implements provisions under
subsection (h) of the AIM Act. To the extent this comment relates to
the application of EPA's rules under CAA Title VI or other particular
aspects of the AIM Act or regulations under Part 84, those topics are
beyond the scope of this rulemaking and thus require no further
response.
Regarding the commenter's statement about the tracking,
recordkeeping, and reporting of information regarding sale and
distribution of HFCs, as noted previously in this preamble, EPA is not
finalizing the proposed provisions for container tracking of HFCs that
could be used in the servicing, repair, and/or installation of
refrigerant-containing or fire suppression equipment. Thus, any
concerns pertaining to that aspect of the proposal are not relevant to
this action. However, EPA is establishing a discrete reporting
requirement to better understand the use of reclaimed HFCs in the
subsectors covered in this rulemaking, as described in section IV.E.2
above. EPA additionally notes that the other recordkeeping and
reporting provisions established under this rule provide no exemption
for offshore sources, and remain applicable by their terms, consistent
with the discussion earlier in this response to comment.''
Comment: One commenter stated that EPA's statutory authority and
specific legislative guidance indicated the importance of interpreting
similar authorities to avoid unreasonable outcomes and thus understood
subsection (h)(2) to mean that in developing regulations for equipment
servicing, repair, disposal, or installation ``EPA should prioritize,
and may only have the authority to prioritize, the exploration of
opportunities for refrigerant reclamation.'' The commenter stated that
this interpretation aligns with the Agency's mission and ensures a
responsible and sustainable approach to refrigerant management, while
ensuring that there is adequate access to refrigerant supply to meet
demand.
Response: EPA disagrees with the commenter's interpretation of
subsection (h)(2). Subsection (h)(1) of the AIM Act provides EPA
authority to promulgate regulations to control, where appropriate, any
practice, process, or activity regarding the servicing, repair,
disposal, or installation of equipment that involves HFCs or their
substitutes, or the reclaiming of HFCs or their substitutes used as
refrigerants. Subsection (h)(2)(A) of the Act provides that the
Administrator ``shall consider the use of authority available . . .
under this section to increase opportunities for the reclaiming of
regulated substances used as refrigerants.'' Subsection (h)(2)(B) of
the Act provides that a ``regulated substance used as a refrigerant
that is recovered shall be reclaimed before the regulated substance is
sold or transferred to a new owner, except where the recovered
regulated substance is sold or transferred to a new owner solely for
the purposes of being reclaimed or destroyed.'' While subsection
(h)(2)(A) requires that the Agency consider the potential to increase
opportunities for reclamation of regulated substances used as
refrigerants, nothing in this statutory language limits the use of
EPA's authorities for other purposes or requires that the Agency reach
a certain result based on such consideration. Nothing in the text of
either subsection (h)(2)(A) or (B) suggests that it is intended to
modify the grant of regulatory authority in subsection (h)(1) or
dictate the Agency's priorities in implementing subsection (h)(1).
Further, such an interpretation of subsection (h)(2) could unduly
restrict EPA's ability to fully implement the regulatory authority
granted in subsection (h)(1), for example in promulgating regulations
consistent with that provision that are focused on the purposes
identified in subsection (h)(1) of minimizing releases of HFCs from
equipment and ensuring the safety of technicians and consumers.
Notwithstanding EPA's disagreement with the commenters' interpretation
of (h)(2), the Agency notes it has considered various uses of its
authority in this rulemaking that could increase opportunities for
reclamation of HFCs used as refrigerants and that several aspects of
this final rule that are focused on maximizing reclamation of HFCs
could also increase opportunities for reclamation.
Comment: Many commenters expressed support for the development of
new requirements for technician training and certification. Some
commenters also expressed support for continuing education
requirements, recertification requirements, and developing new
requirements for already certified technicians. Other commenters
expressed support for new requirements for technicians obtaining
certifications for the first time but opposed requirements for already
certified technicians. Some commenters stated that requirements for
technician training and certification would ensure that technicians are
up to date relative to changes in the industry, are properly trained
for the installation and servicing of equipment, can handle
flammability and safety concerns such as those associated with new
refrigerants, and are aware of regulatory requirements related to HFCs
such as the prohibition on venting. Some commenters also stated that
technician and certification requirements would encourage recovery and
reclamation, protect facility owners and operators, reduce emissions,
ensure a smooth transition, promote adoption of new refrigerants,
change the culture in the industry to reinforce the use of proper
methods, and enhance compliance. Some commenters mentioned that current
requirements are inadequate to ensure that HFCs are managed correctly.
Other commenters expressed opposition to the development of new
requirements for technician training and certification. Some commenters
stated that such requirements would add compliance burdens without
environmental and safety benefits, that such requirements would exceed
EPA's authority, that technicians do not want to be forced to take a
test, that certain entities would profit off of the certification
requirements, that requirements would impose added costs on
technicians, that requirements would dissuade potential HVAC
professionals from entering the industry, that existing government and
industry requirements are sufficient, and that already certified
technicians should not be subject to new requirements. One commenter
suggested that EPA encourage but not mandate training and
certification, and another commenter expressed openness to more
training but opposed any more EPA requirements.
Response: EPA acknowledges these comments. As discussed in section
I.B above in this action, EPA also issued in conjunction with the
proposed rule an ANPRM seeking information on approaches for
establishing requirements for technician training and/or certification.
EPA explained in that notice that it was not proposing and will not be
finalizing a technician training and certifying program on which it
sought advance comment. Accordingly, EPA explained that the Agency did
not intend to respond to any advance information received. However, EPA
intends to consider those comments as part of a potential future notice
and comment rulemaking to establish a training and/or certification
program. Therefore, EPA is not
[[Page 82855]]
addressing technician training in this final rulemaking and accordingly
is not responding to comments on the ANPRM in this action. However, EPA
is establishing requirements for fire suppression technician training,
as described in section IV.F.2.d.
Comment: One commenter asserted that EPA must take additional
steps, on its own and in conjunction with other Federal agencies, to
level the playing field for reclaimers. For example, the commenter
stated that EPA should revise its implementation of the SNAP program to
curtail patent or contractual limitations on reclamation. Among other
comments related to the Allocation Program, the commenter stated that
EPA should use administrative consequences in additional scenarios
including to entities engaged in market manipulation, patent
misconduct, and ``unfair trade practices'' and that all allowances
revoked pursuant to administrative consequences should be reallocated
to EPA-certified reclaimers. Additionally, the commenter stated that
EPA should change the provision in the Framework Allocation Rule
allowing HFCs contained in equipment to be imported without expending
allowances. The commenter further stated that EPA should assign a GWP
value of zero to all refrigerants reclaimed in the U.S. by EPA-
certified reclaimers, establish a ``life-cycle adjusted GWP'' value for
all refrigerants to reflect their actual reclaim rate, and use that
adjusted GWP value for purposes of all AIM Act regulatory programs, as
well as establish a recycle or release rate for every SNAP-approved
product. The commenter also recommended that EPA develop a rule
providing that refrigerants that do not meet a 15% reclaim rate could
be designated as unacceptable substitutes under SNAP.
The commenter further suggested that EPA should require all
recovered refrigerant to be exclusively returned to EPA-certified
reclaimers and should update the certification requirements for
reclaimers. The commenter also stated that EPA should establish a
mechanism for reclaimers or third parties to seek EPA intervention to
prevent or call attention to anticompetitive practices that harm the
reclaim market. The commenter further recommended that EPA should
create a unified reporting portal for EPA-certified reclaimers. The
commenter asserted that EPA should enhance its engagement with DOC and
U.S. Customs and Border Protection to address anticompetitive behavior
by virgin refrigerant producers and ensure a level playing field,
especially regarding antidumping and countervailing duties and the 2016
Blends Order. Finally, the commenter suggested that State and local
government agencies and regulatory bodies consider imposing fees on all
newly manufactured HFC/HFO refrigerant products and stated that EPA
should support this effort.
Response: Regarding the commenter's points on patent or contractual
limitations on reclamation, providing mechanisms for reclaimers related
to anticompetitive practices, implementation of the SNAP program, and
requested listings as unacceptable under EPA's SNAP program, these
comments are outside the scope of this final rule promulgated under the
AIM Act and thus require no further response. The commenter's
suggestions for changes to the administrative consequences under the
Allocation Program as well as the requested changes to the regulations
established by the Framework Allocation Rule and codified at 40 CFR
part 84, subpart A are also outside the scope of this final rule and
thus require no further response. Regarding commenter's points
regarding assigned GWP values, EPA responds that subsection (c) of the
AIM Act uses exchange values which are numerically equivalent to the
100-year GWP of the chemical as given in the Errata to Table 2.14 of
the IPCC's 2007 Fourth Assessment Report. These exchange values are
codified in EPA's regulations as appendix A to 40 CFR part 84, and this
rulemaking did not propose, and is not finalizing, new or revised
exchange values for any regulated substances. By their terms, the
exchange values listed in subsection (c) of the AIM Act and codified at
appendix A to 40 CFR part 84 apply to regulated substances regardless
of whether the substance is newly manufactured or reclaimed, and they
are based on physical properties of the compound itself that are the
same for a substance, regardless of whether it is virgin or reclaimed.
Further, to the extent that commenters on this rule are using
terminology that is used under the Allowance Allocation Program in ways
that diverge from how the Agency uses those terms or seeking
modifications to requirements under that program, EPA is not making any
changes to the Allowance Allocation Program in this rule. Under the
regulations at 40 CFR 84.5(b)(1) the quantity of consumption allowances
that must be expended for an import of a regulated substance must be
equal to the exchange-value weighted equivalent of the regulated
substances imported. EPA is not changing that requirement for any
regulated substance in this rulemaking.
Regarding comments recommending that EPA should require that all
recovered refrigerant be exclusively returned to EPA-certified
reclaimers, there may be instances where this may not be appropriate or
practical (e.g., the same owner recovers refrigerant and transfers to
another location). EPA is, however, requiring that disposable cylinders
that were used in the servicing, repair, or installation of
refrigerant-containing equipment or fire suppression equipment be sent
to a reclaimer, fire suppression recycler, final processor for removal
of the heel as discussed in section IV.G.1. Further, as discussed in
section IV.E.1 above, EPA is also establishing labeling and
recordkeeping requirements, as proposed, and prohibiting the sale,
identification, or reporting of refrigerant as being reclaimed if the
HFC component of the resulting refrigerant contains more than 15
percent, by weight, of virgin HFC. EPA proposed and is requiring that
certified reclaimers affix this label to reclaimed HFCs being sold or
distributed or offered for sale or distribution beginning January 1,
2026. EPA also proposed and is finalizing that beginning January 1,
2026, certified reclaimers generate a record to certify that the
reclaimed refrigerant does not exceed 15 percent, by weight, of virgin
HFCs. Such records must be maintained for three years.
IX. Judicial Review
The AIM Act regulations promulgated herein may be challenged in the
United States Court of Appeals for the District of Columbia Circuit.
Pursuant to section 307(b)(1) of the CAA, petitions for judicial review
of the AIM Act regulations must be filed in that court within 60 days
after the date notice of this final action is published in the Federal
Register. Any person seeking to challenge both the AIM Act regulations
and the RCRA regulations must file the challenge to the AIM Act
regulations within 60 days after the date notice of this final action
is published in the Federal Register.
The AIM Act provides that certain sections of the CAA ``shall apply
to'' the AIM Act and to ``any rule, rulemaking, or regulation
promulgated by the Administrator of [EPA] pursuant to [the AIM Act] as
though [the AIM Act] were expressly included in title VI of [the CAA]''
(42 U.S.C. 7675(k)(1)(C)). Among the applicable sections of the CAA is
section 307, which includes provisions on judicial review. Section
307(b)(1) provides, in part, that petitions for review must be filed in
the United
[[Page 82856]]
States Court of Appeals for the District of Columbia Circuit: (i) When
the Agency action consists of ``nationally applicable regulations
promulgated, or final action taken, by the Administrator,'' or (ii)
when such action is locally or regionally applicable, but such action
is ``based on a determination of nationwide scope or effect.''
The AIM Act regulations promulgated herein are ``nationally
applicable regulations'' within the meaning of CAA section 307(b)(1).
These regulations define and interpret terms under the AIM Act and
establish regulatory requirements applicable across the entire United
States to implement subsection (h) of the AIM Act, including
requirements to control practices, processes, or activities regarding
the servicing, repair, disposal, or installation of equipment that
involves a regulated substance, a substitute for a regulated substance,
the reclaiming of a regulated substance used as a refrigerant, or the
reclaiming of a substitute for a regulated substance used as a
refrigerant, as well as regulatory requirements for labeling,
recordkeeping, and reporting, for purposes including maximizing
reclamation and minimizing releases of regulated substances from
equipment. Accordingly, under section 307(b)(1) of the CAA, petitions
for judicial review of these AIM Act regulations must be filed in the
United States Court of Appeals for the District of Columbia by December
10, 2024.
EPA's RCRA regulations promulgated herein may be challenged in the
United States Court of Appeals for the District of Columbia Circuit.
Section 7006(a)(1) of RCRA provides that ``a petition for review of
action of the Administrator in promulgating any regulation, or
requirement under this chapter . . . may be filed only in the United
States Court of Appeals for the District of Columbia, and such petition
shall be filed within ninety days from the date of such promulgation .
. . .'' Accordingly, petitions for judicial review of the RCRA
regulations promulgated herein must be filed in the United States Court
of Appeals for the District of Columbia by January 9, 2025. Any person
seeking to challenge both the AIM Act regulations and the RCRA
regulations must file the challenge to the RCRA regulations within 90
days after the date notice of this final action is published in the
Federal Register.
X. Severability
As noted previously, in this Federal Register notice we are
providing notice of two sets of regulations: one under the AIM Act and
another under RCRA. Accordingly, as explained in the proposal and in
other sections of this notice, as well as in the following paragraphs
for clarity, this notice of final rulemaking is multifaceted and
addresses many separate issues for independent reasons. For example,
the AIM Act regulations include definitions and interpretations of
terms under the AIM Act; new requirements, including provisions that
address maximizing the reclamation and minimizing the release of HFCs
from equipment under subsection (h) of that Act; and labeling,
recordkeeping, and reporting requirements to support the enforcement of
the new provisions. EPA has separately considered and adopted the
elements of the AIM Act regulations, including leak repair of
refrigerant-containing appliances; reclaimed HFCs for the servicing
and/or repair of certain refrigerant-containing equipment; recycled
HFCs in fire suppression equipment; emissions reductions in the fire
suppression sector; and removal of HFCs from disposable cylinders
before discarding them. Each of these requirements is supported by a
separate analysis and rationale, based on independent consideration of
issues such as the particular processes, practices, or activities that
are relevant to and controlled by the requirement and how the
requirements relate to the purposes identified in subsection (h)(1).
These requirements also address different sectors and subsectors (RACHP
and fire suppression). EPA intends for requirements for each of these
topics to be able to stand independently from one another and has
designed them accordingly. For example, the leak repair requirements
for refrigerant-containing appliances are designed to operate
independently from the requirements for servicing, repair, disposal, or
installation of fire suppression equipment, as they address different
types of equipment and are each independently intended to further serve
the purposes of maximizing the reclamation and minimizing the release
of HFCs from equipment. Similarly, while the requirements for the
servicing and/or repair of certain refrigerant-containing equipment
with reclaimed HFCs and the requirements for recycled HFCs in the fire
suppression sector also serve those same purposes, they do so by
addressing processes, practices, or activities regarding the servicing,
repair, installation, or disposal of equipment that differ both from
those addressed by the leak repair requirements for refrigerant-
containing appliances and those addressed by the emissions reductions
requirements for fire suppression equipment, as well as from one
another. Likewise, while the requirements for removal of HFCs from
disposable cylinders also help serve the purpose of maximizing
reclamation, this portion of the AIM Act regulations is not integral to
the adoption of the standards for what constitutes reclaimed HFC
refrigerant, requirements for the servicing and/or repair of certain
refrigerant-containing equipment with reclaimed HFCs, or other
requirements.
In this notice of final rulemaking, EPA is also amending
regulations under RCRA, which are separate from the regulations under
subsection (h)(1) of the AIM Act, to establish alternative standards
for ignitable spent refrigerants when recycled for reuse, as the term
``recycle'' is to be used under RCRA. These standards are established
under a different set of statutory authorities than the AIM Act
regulations, and they are part of an independent and distinct
regulatory regime. While we intend for the AIM Act regulations and the
separate RCRA regulations described in this notice of final rulemaking
to operate independently of one another and to be severable from each
other, we are providing notice of both sets of regulations
simultaneously because both the RCRA regulations concerning the
recovery and recycling of certain ignitable spent refrigerants and the
AIM Act regulations concerning recovery and reclamation of refrigerants
may be of interest to some of the same stakeholders.
Thus, EPA has independently considered and adopted the RCRA
regulations (including the element for the RCRA alternative standards
for ignitable spent refrigerants when recycled for reuse) and the AIM
Act regulations (including but not limited to the elements of the ER&R
program related to leak repair of refrigerant-containing appliances;
reclaimed HFCs for the servicing and/or repair of certain refrigerant-
containing equipment; recycled HFCs in fire suppression equipment;
emissions reductions in the fire suppression sector; and removal of
HFCs from disposable cylinders before discarding them), and these
elements of these regulations are severable from the others. If a court
were to invalidate any one of these elements, EPA intends the remainder
of the provisions to remain effective, as the Agency has designed the
elements of both the AIM Act regulations and the RCRA regulations to
function sensibly and separately, and finds each portion appropriate,
even if one or more other provisions has been set aside. Moreover, this
discussion is not intended to be exhaustive, and
[[Page 82857]]
should not be viewed as an intention by EPA to consider other
requirements not explicitly listed here as not severable from other
requirements.
XI. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 14094: Modernizing Regulatory Review
This action is a ``significant regulatory action'', as defined
under section 3(f)(1) of Executive Order 12866, as amended by Executive
Order 14094. Accordingly, EPA submitted this action to the OMB for
Executive Order 12866 review. Documentation of any changes made in
response to the Executive Order 12866 review is available in the
docket. EPA prepared an analysis of the potential costs and benefits
associated with this action. This analysis, Final Regulatory Impact
Analysis Addendum: Analysis of the Economic Impact and Benefits of the
Proposed Rule: American Innovation and Manufacturing (AIM) Act
Subsection H Management of Regulated Substances (Docket Number EPA-HQ-
OAR-2022-0606), is also available in the docket and is summarized in
section I.C and section VI of this preamble. Estimated costs, benefits,
and resulting net benefits are provided by type of provision in table
10 below.
Table 10--Summary of Present Value Costs, Benefits, and Net Benefits by Regulatory Provision (Millions of 2022$, Discounted to 2024)--Base Case Scenario
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Climate
Provision benefits Costs (savings) (2%) Costs (savings) (3%) Costs (savings) (7%) Net benefits (3% Net benefits (3% Net benefits (3%
(3%) benefits, 2% costs) benefits, 3% costs) benefits, 7% costs)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Leak Repair And ALD.............. $6,176 $1,285................. $1,146................. $760................... $4,891................ $5,031................ $5,417.
Fire Suppression................. 14 $15.................... $13.................... $7..................... ($1).................. $1.................... $7.
Cylinder Management.............. 2,165 ($195)................. ($169)................. ($101)................. $2,360................ $2,335................ $2,266.
Use of Reclaimed HFCs for .......... $43.................... $38.................... $23.................... ($43)................. ($38)................. ($23).
Servicing \a\.
Recordkeeping & Reporting........ .......... $350................... $308................... $195................... ($350)................ ($308)................ ($195).
Total (AIM Act) \b\.............. 8,356 $1,499................. $1,335................. $884................... $6,857................ $7,021................ $7,471.
RCRA Alternative Standard .......... $0 to ($40)............ $0 to ($35)............ $0 to ($22)............ $0 to ($40)........... $0 to ($35)........... $0 to ($22).
Requirements \c\.
Total (AIM Act + RCRA) \b\....... .......... $1,459 to $1,499....... $1,300 to $1,335....... $863 to $884........... $6,857 to $6,897...... $7,021 to $7,056...... $7,471 to $7,493.
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\a\ As detailed in the RIA addendum, reclaim requirements may lead to additional emissions reductions by inducing increased recovery of refrigerant at servicing and disposal that may otherwise
be released or vented. In the base case scenario, EPA does not estimate an increase in these avoided emissions beyond baseline assumptions. See the RIA addendum for additional analysis
related to this assumption.
\b\ Rows may not appear to add correctly due to rounding.
\c\ RCRA alternative standard requirements are part of the RCRA regulations, which are separate from the regulations under subsection (h)(1) of the AIM Act. Potential RCRA-related benefits
presented in this table are included here for informational purposes.
B. Paperwork Reduction Act (PRA)
The information collection activities in this rule have been
submitted for approval to the OMB under the PRA. The ICR document that
EPA prepared has been assigned EPA ICR number 2778.02. You can find a
copy of the ICR in the docket for this rule, and it is briefly
summarized here. The information collection requirements are not
enforceable until OMB approves them.
Subsection (k)(1)(C) of the AIM Act states that section 114 of the
CAA applies to the AIM Act and rules promulgated under it as if the AIM
Act were included in title VI of the CAA. Thus, section 114 of the CAA,
which provides authority to the EPA Administrator to require
recordkeeping and reporting in carrying out provisions of the CAA, also
applies to and supports this rulemaking.
EPA is establishing certain labeling requirements for containers of
reclaimed HFCs. EPA is also establishing recordkeeping and reporting
requirements for owners or operators of applicable refrigerant-
containing appliances that contain HFCs or certain substitutes for HFCs
to support compliance with the leak repair provisions, as well as
recordkeeping and reporting requirements for the fire suppression
provisions for HFCs. Additionally, where ALD systems are required, EPA
is establishing that owners or operators maintain records regarding the
annual calibration or audit of the system.
Respondents/affected entities: Respondents and affected entities
will be individuals or companies that own, operate, service, repair,
recycle, dispose, or install equipment containing HFCs or their
substitutes addressed by this final rule, as well as individuals or
companies that recover, recycle, or reclaim HFCs or such substitutes.
Respondent's obligation to respond: Mandatory (AIM Act and section
114 of the CAA).
Estimated number of respondents: 781,563.
Frequency of response: Quarterly, annually, and as needed depending
on the nature of the report.
Total estimated burden: 222,268 hours (per year). Burden is defined
at 5 CFR 1320.3(b).
Total estimated cost: $17,069,893 (per year), includes $0
annualized capital or operation & maintenance costs. This includes
$2,131,844 avoided per year for reclamation reporting and recordkeeping
related to the RCRA alternative standards.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in title 40 of the CFR are listed in 40 CFR part 9. When
OMB approves this ICR, the Agency will announce that approval in the
Federal Register and publish a technical amendment to 40 CFR part 9 to
display the OMB control number for the approved information collection
activities contained in this final rule.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities (SISNOSE) under the
RFA. The small entities subject to the requirements of this action
include those that may use as refrigerant, use as a fire suppression
agent, reclaim, or recycle HFCs. EPA estimates that approximately 493
of the 767,568 potentially affected small entities (~0.06%) could incur
costs in excess of one percent of annual sales/revenue and that
approximately 12
[[Page 82858]]
small entities (<0.01%) could incur costs in excess of three percent of
annual sales/revenue. Because there is not a substantial number of
small entities that may experience a significant impact, it can be
presumed that this action will have no SISNOSE. Details of this
analysis are presented in the Economic Impact and Benefits TSD. (Docket
ID EPA-HQ-OAR-2022-0606).
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain an unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have Tribal implications as specified in
Executive Order 13175. It will not have substantial direct effects on
Tribal governments, on the relationship between the Federal government
and Indian Tribes, or on the distribution of power and responsibilities
between the Federal government and Indian Tribes, as specified in
Executive Order 13175. Thus, Executive Order 13175 does not apply to
this action. EPA periodically updates Tribal officials on air
regulations through the monthly meetings of the National Tribal Air
Association and will share information on this rulemaking through this
and other fora.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045 directs federal agencies to include an
evaluation of the health and safety effects of the planned regulation
on children in federal health and safety standards and explain why the
regulation is preferable to potentially effective and reasonably
feasible alternatives. This action is subject to Executive Order 13045
because it is a significant regulatory action under section 3(f)(1) of
Executive Order 12866, and EPA contends that the environmental health
or safety risk addressed by this action has a disproportionate effect
on children. Accordingly, the Agency has evaluated the environmental
health or safety effects of climate change on children.
Greenhouse gases, including HFCs, contribute to climate change.
Certain populations and life stages, including children, the elderly,
and the poor, are most vulnerable to climate-related health effects.
The results of this evaluation are contained in the assessment
literature cited in EPA's 2009 and 2016 Endangerment Findings. The
assessment literature since 2016 strengthens these conclusions by
providing more detailed findings regarding these groups'
vulnerabilities and the projected impacts they may experience.
This action is preferred over other regulatory options analyzed
because the GHG emissions reductions resulting from implementation of
this rule will further reduce risks to children's health associated
with the avoided emissions. These assessments describe how children's
unique physiological and developmental factors contribute to making
them particularly vulnerable to climate change. Impacts to children are
expected from heat waves, air pollution, infectious and waterborne
illnesses, and mental health effects resulting from extreme weather
events. In addition, children are among those especially susceptible to
most allergic diseases, as well as health effects associated with heat
waves, storms, and floods. Additional health concerns may arise in low-
income households, especially those with children, if climate change
reduces food availability and increases prices, leading to food
insecurity within households.
More detailed information on the impacts of climate change to human
health and welfare is provided in section III.B of this preamble.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution or use of energy. This action applies to certain regulated
substances and certain equipment containing regulated substances or
certain substitutes for regulated substances, none of which are used to
supply or distribute energy.
I. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations and
Executive Order 14096: Revitalizing Our Nation's Commitment to
Environmental Justice for All
The human health or environmental conditions that exist prior to
this action result in or have the potential to result in
disproportionate and adverse human health or environmental effects on
communities with environmental justice concerns. EPA carefully
evaluated available information on HFC reclamation facilities and the
characteristics of nearby communities to evaluate these impacts in the
context of this final rulemaking. Based on this analysis, EPA finds
evidence of environmental justice concerns near HFC reclamation
facilities from cumulative exposure to existing environmental hazards
in these communities.
The analysis shows that communities near the 38 identified HFC
reclamation facilities are generally more diverse than the national
average with respect to race and ethnicity. While the median income of
these communities is slightly higher than the national average, there
are more low-income households. Across the 38 facilities, total
respiratory risk and total cancer risk are slightly elevated compared
to the national average.
This rule is expected to result in benefits in the form of reduced
GHG emissions. The analysis conducted for this rule also estimates that
a portion of these benefits would be incremental to emissions
reductions that were anticipated under the Allocation Framework Rule
alone, thus further reducing the risks of climate change associated
with those emissions.
It is not practicable to assess whether this action is likely to
result in new disproportionate and adverse effects on communities with
environmental justice concerns. While providing additional overall
climate benefits, this rule may also result in changes in emissions of
air pollutants or other chemicals that are potential byproducts of HFC
reclamation processes at affected facilities. The market for reclaimed
HFCs could drive changes in potential risk for communities living near
these facilities due to the changes in emissions that could have local
effects is uncertain. However, the nature and location of the emission
changes are uncertain. Moreover, there is insufficient information at
this time about which facilities will change reclamation processes.
Given limited
[[Page 82859]]
information at this time, it is unclear to what extent this rule will
impact existing disproportionate adverse effects on communities living
near HFC reclamation facilities. The Agency will continue to evaluate
the impacts of this rulemaking on affected communities, including
communities with environmental justice concerns, and consider further
action, as appropriate, to protect health in communities affected by
HFC reclamation. The information supporting this Executive Order review
is contained in section VII of this preamble.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action meets the criteria set forth in 5 U.S.C.
804(2).
List of Subjects
40 CFR Part 84
Environmental protection, Administrative practice and procedure,
Air pollution control, Chemicals, Climate change, Emissions,
Reclaiming, Recycling, Reporting and recordkeeping requirements.
40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
40 CFR Part 262
Environmental protection, Exports, Hazardous materials
transportation, Hazardous waste, Imports, Labeling, Packaging and
containers, Reporting and recordkeeping requirements.
40 CFR Part 266
Environmental protection, Energy, Hazardous waste, Recycling,
Reporting and recordkeeping requirements.
40 CFR Part 270
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous materials transportation,
Hazardous waste, Reporting and recordkeeping requirements, Water
pollution control, Water supply.
40 CFR Part 271
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous materials transportation,
Hazardous waste, Indians--lands, Intergovernmental relations,
Penalties, Reporting and recordkeeping requirements, Water pollution
control, Water supply.
Michael S. Regan,
Administrator.
For the reasons stated in the preamble, EPA amends 40 CFR parts 84,
261, 262, 266, 270, and 271 as follows:
PART 84--PHASEDOWN OF HYDROFLUOROCARBONS
0
1. The authority citation for part 84 continues to read as follows:
Authority: Pub. L. 116-260, Division S, Sec. 103.
0
2. Add subpart C, consisting of Sec. Sec. 84.100 through 84.120, to
read as follows:
Subpart C--Management of Regulated Substances
Sec.
84.100 Purpose.
84.102 Definitions.
84.104 Prohibitions.
84.106 Leak repair.
84.108 Automatic leak detection systems.
84.110 Emissions from fire suppression equipment.
84.112 Reclamation.
84.114 Exemptions.
84.116 Requirements for disposable cylinders.
84.118 Treatment of data submitted under 40 CFR part 84, subpart C.
84.120 Relationship to other laws.
Sec. 84.100 Purpose.
The purpose of the regulations in this subpart is to implement
subsection (h) of 42 U.S.C. 7675, including with respect to
establishing requirements to control practices, processes, or
activities regarding the servicing, repair, disposal, or installation
of equipment, for purposes of maximizing reclaiming, minimizing the
release of regulated substances from equipment, and ensuring the safety
of technicians and consumers.
Sec. 84.102 Definitions.
For the terms not defined in this subpart but that are defined in
Sec. 84.3, the definitions in Sec. 84.3 shall apply. For the purposes
of this subpart C:
Certified technician means a technician that has been certified per
the provisions at 40 CFR 82.161.
Comfort cooling means the refrigerant-containing appliances used
for air conditioning to provide cooling in order to control heat and/or
humidity in occupied facilities including but not limited to
residential, office, and commercial buildings. Comfort cooling
appliances include but are not limited to chillers, commercial split
systems, dual-function heat pumps, and packaged roof-top units.
Commercial refrigeration means the refrigerant-containing
appliances used in the retail food and cold storage warehouse
subsectors. Retail food appliances include the refrigerant-containing
appliances found in supermarkets, convenience stores, restaurants, and
other food service establishments. Cold storage includes the
refrigerant-containing appliances used to store meat, produce, dairy
products, and other perishable goods.
Component, as it relates to a refrigerant-containing appliance,
means a part of the refrigerant circuit within an appliance including
but not limited to compressors, condensers, evaporators, receivers, and
all of its connections and subassemblies.
Custom-built means that the industrial process refrigeration
equipment or any of its components cannot be purchased and/or installed
without being uniquely designed, fabricated and/or assembled to satisfy
a specific set of industrial process conditions.
Disposal, as it relates to refrigerant-containing equipment, means
the process leading to and including:
(1) The discharge, deposit, dumping, or placing of any discarded
refrigerant-containing equipment into or on any land or water;
(2) The disassembly of any refrigerant-containing equipment for
discharge, deposit, dumping, or placing of its discarded component
parts into or on any land or water;
(3) The vandalism of any refrigerant-containing equipment such that
the refrigerant is released into the environment or would be released
into the environment if it had not been recovered prior to the
destructive activity;
(4) The disassembly of any refrigerant-containing equipment for
reuse of its component parts; or
(5) The recycling of any refrigerant-containing equipment for
scrap.
Disposal, as it relates to fire suppression equipment, means the
process leading to and including:
(1) The discharge, deposit, dumping, or placing of any fire
suppression equipment into or on any land or water;
(2) The disassembly of any fire suppression equipment for
discharge, deposit, dumping, or placing of its discarded component
parts into or on any land or water; or
(3) The disassembly of any fire suppression equipment for reuse of
its component parts.
Equipment means any device that contains, uses, detects, or is
otherwise
[[Page 82860]]
connected to or associated with a regulated substance or substitute for
a regulated substance, including any component, system, refrigerant-
containing appliance, and fire suppression equipment.
Fire suppression equipment means any device that is connected to or
associated with a regulated substance or substitute for a regulated
substance, including blends and mixtures, consisting in part or whole
of a regulated substance or a substitute for a regulated substance, and
that is used for fire suppression purposes. This term includes any such
equipment, component, or system. This term does not include military
equipment used in deployable and expeditionary situations. This term
also does not include space vehicles as defined in 40 CFR 84.3.
Fire suppression technician means any person who in the course of
servicing, repair, disposal, or installation of fire suppression
equipment could be reasonably expected to violate the integrity of the
fire suppression equipment and therefore release fire suppressants into
the environment.
Follow-up verification test, as it relates to a refrigerant-
containing appliance, means those tests that involve checking the
repairs to an appliance after a successful initial verification test
and after the appliance has returned to normal operating
characteristics and conditions to verify that the repairs were
successful. Potential methods for follow-up verification tests include
but are not limited to the use of soap bubbles as appropriate,
electronic or ultrasonic leak detectors, pressure or vacuum tests,
fluorescent dye and black light, infrared or near infrared tests, and
handheld gas detection devices.
Full charge, as it relates to a refrigerant-containing appliance,
means the amount of refrigerant required for normal operating
characteristics and conditions of the appliance as determined by using
one or a combination of the following four methods:
(1) Use of the equipment manufacturer's determination of the full
charge;
(2) Use of appropriate calculations based on component sizes,
density of refrigerant, volume of piping, and other relevant
considerations;
(3) Use of actual measurements of the amount of refrigerant added
to or evacuated from the appliance, including for seasonal variances;
and/or
(4) Use of an established range based on the best available data
regarding the normal operating characteristics and conditions for the
appliance, where the midpoint of the range will serve as the full
charge.
Industrial process refrigeration means complex customized
refrigerant-containing appliances that are directly linked to the
processes used in, for example, the chemical, pharmaceutical,
petrochemical, and manufacturing industries. This sector also includes
industrial ice machines, appliances used directly in the generation of
electricity, and ice rinks. Where one appliance is used for both
industrial process refrigeration and other applications, it will be
considered industrial process refrigeration equipment if 50 percent or
more of its operating capacity is used for industrial process
refrigeration.
Initial verification test, as it relates to a refrigerant-
containing appliance, means those leak tests that are conducted after
the repair is finished to verify that a leak or leaks have been
repaired before refrigerant is added back to the appliance.
Installation means the process of setting up equipment for use,
which may include steps such as completing the refrigerant circuit,
including charging equipment with a regulated substance or substitute
for a regulated substance, or connecting cylinders containing a
regulated substance or a substitute for a regulated substance to a
total flooding fire suppression system, such that the equipment can
function and is ready for use for its intended purpose.
Leak inspection, as it relates to a refrigerant-containing
appliance, means the examination of an appliance to detect and
determine the location of refrigerant leaks. Potential methods include
but are not limited to ultrasonic tests, gas-imaging cameras, bubble
tests as appropriate, or the use of a leak detection device operated
and maintained according to manufacturer guidelines. Methods that
determine whether the appliance is leaking refrigerant but not the
location of a leak, such as standing pressure/vacuum decay tests, sight
glass checks, viewing receiver levels, pressure checks, and charging
charts, must be used in conjunction with methods that can determine the
location of a leak.
Leak rate, as it relates to a refrigerant-containing appliance,
means the rate at which an appliance is losing refrigerant, measured
between refrigerant charges. The leak rate is expressed in terms of the
percentage of the appliance's full charge that would be lost over a 12-
month period if the current rate of loss were to continue over that
period. The rate must be calculated using one of the following methods.
The same method must be used for all appliances subject to the leak
repair requirements located at an operating facility.
(1) Annualizing Method--(i) Step 1. Take the number of pounds of
refrigerant added to the appliance to return it to a full charge,
whether in one addition or in multiple additions related to same leak,
and divide it by the number of pounds of refrigerant the appliance
normally contains at full charge;
(ii) Step 2. Take the shorter of the number of days that have
passed since the last day refrigerant was added or 365 days and divide
that number by 365 days;
(iii) Step 3. Take the number calculated in Step 1 and divide it by
the number calculated in Step 2; and
(iv) Step 4. Multiply the number calculated in Step 3 by 100 to
calculate a percentage. This method is summarized in the following
formula:
Formula 1 to paragraph (1)(iv)
[GRAPHIC] [TIFF OMITTED] TR11OC24.003
(2) Rolling Average Method--(i) Step 1. Take the sum of the pounds
of refrigerant added to the appliance over the previous 365-day period
(or over the period that has passed since the last successful follow-up
verification test showing all identified leaks in the appliance were
repaired, if that period is less than one year);
(ii) Step 2. Divide the result of Step 1 by the pounds of
refrigerant the
[[Page 82861]]
appliance normally contains at full charge; and
(iii) Step 3. Multiply the result of Step 2 by 100 to obtain a
percentage. This method is summarized in the following formula:
Formula 2 to paragraph (2)(iii)
[GRAPHIC] [TIFF OMITTED] TR11OC24.004
Mothball, as it relates to a refrigerant-containing appliance,
means to evacuate refrigerant from an appliance, or the affected
isolated section or component of an appliance, to at least atmospheric
pressure, and to temporarily shut down that appliance.
Motor vehicle means any vehicle which is self-propelled and
designed for transporting persons or property on a street or highway,
including but not limited to passenger cars, light-duty vehicles, and
heavy-duty vehicles. This definition does not include a vehicle where
final assembly of the vehicle has not been completed by the original
equipment manufacturer.
Motor vehicle air conditioners (MVAC) means mechanical vapor
compression refrigerant-containing appliances used to cool the driver's
or passenger's compartment of any motor vehicle. This definition is
intended to have the same meaning as in 40 CFR 82.32.
MVAC-like appliance means a mechanical vapor compression, open-
drive compressor refrigerant-containing appliance with a full charge of
20 pounds or less of refrigerant used to cool the driver's or
passenger's compartment of off-road vehicles. This includes, but is not
limited to, the air-conditioning appliances found on agricultural or
construction vehicles. This definition is intended to have the same
meaning as in 40 CFR 82.152.
Normal operating characteristics and conditions, as it relates to a
refrigerant-containing appliance, means appliance operating
temperatures, pressures, fluid flows, speeds, and other
characteristics, including full charge of the appliance, that would be
expected for a given process load and ambient condition during normal
operation. Normal operating characteristics and conditions are marked
by the absence of atypical conditions affecting the operation of the
appliance.
Owner or operator means any person who owns, leases, operates, or
controls any equipment, or who controls or supervises any practice,
process, or activity that is subject to any requirement pursuant to
this subpart.
Recover means the process by which a regulated substance, or where
applicable, a substitute for a regulated substance, is (1) removed, in
any condition, from equipment and (2) stored in an external container,
with or without testing or processing the regulated substance or
substitute for a regulated substance.
Recycling, when referring to fire suppression or fire suppressants,
means the testing and/or reprocessing of regulated substances used in
the fire suppression sector to certain purity standards.
Refrigerant means any substance, including blends and mixtures,
consisting in part or whole of a regulated substance or a substitute
for a regulated substance that is used for heat transfer purposes and
provides a cooling effect.
Refrigerant circuit, as it relates to a refrigerant-containing
appliance, means the parts of an appliance that are normally connected
to each other (or are separated only by internal valves) and are
designed to contain refrigerant.
Refrigerant-containing appliance means any device that contains and
uses a regulated substance or substitute for a regulated substance as a
refrigerant including but not limited to any air conditioner, MVAC,
MVAC-like appliance, refrigerator, chiller, or freezer. For such
devices with multiple circuits, each independent circuit is considered
a separate appliance.
Refrigerant-containing equipment means equipment as defined in this
subpart that contains, uses, or is otherwise connected to or associated
with a regulated substance or substitute for a regulated substance that
is used as a refrigerant. This definition includes refrigerant-
containing components and refrigerant-containing appliances. This term
does not include military equipment used in deployable and
expeditionary situations. This term also does not include space
vehicles as defined in 40 CFR 84.3.
Repackager means an entity that transfers regulated substances,
either alone or in a blend, from one container to another container
prior to sale or distribution or offer for sale or distribution. An
entity that services system cylinders for use in fire suppression
equipment and returns the same regulated substances to the same system
cylinder it was recovered from after the system cylinder is serviced is
not a repackager.
Repair, as it relates to a particular leak in a refrigerant-
containing appliance, means making adjustments or other alterations to
that refrigerant-containing appliance that have the effect of stopping
leakage of refrigerant from that particular leak.
Reprocess means using procedures such as filtering, drying,
distillation, and other chemical procedures to remove impurities from a
regulated substance or a substitute for a regulated substance.
Retire, as it relates to a refrigerant-containing appliance, means
the removal of the refrigerant and the disassembly or impairment of the
refrigerant circuit such that the appliance as a whole is rendered
unusable by any person in the future.
Retrofit, as it relates to a refrigerant-containing appliance,
means to convert an appliance from one refrigerant to another
refrigerant. Retrofitting includes the conversion of the appliance to
achieve system compatibility with the new refrigerant and may include,
but is not limited to, changes in lubricants, gaskets, filters, driers,
valves, o-rings, or appliance components.
Seasonal variance, as it relates to a refrigerant-containing
appliance, means the removal of refrigerant from an appliance due to a
change in ambient conditions caused by a change in season, followed by
the subsequent addition of an amount that is less than or equal to the
amount of refrigerant removed in the prior change in season, where both
the removal and addition of refrigerant occurs within one consecutive
12-month period.
[[Page 82862]]
Stationary refrigerant-containing equipment means refrigerant-
containing equipment, as defined in this subpart, that is not an MVAC
or an MVAC-like appliance, as defined in this subpart.
Substitute for a regulated substance means a substance that can be
used in equipment in the same or similar applications as a regulated
substance, to serve the same or a similar purpose, including but not
limited to a substance used as a refrigerant in a refrigerant-
containing appliance or as a fire suppressant in fire suppression
equipment, provided that the substance is not a regulated substance or
an ozone-depleting substance.
Technician, as it relates to any person who works with refrigerant-
containing appliances, means any person who in the course of servicing,
repair, or installation of a refrigerant-containing appliance (except
MVACs) could be reasonably expected to violate the integrity of the
refrigerant circuit and therefore release refrigerants into the
environment. Technician also means any person who in the course of
disposal of a refrigerant-containing appliance (except small appliances
as defined in 40 CFR 82.152, MVACs, and MVAC-like appliances) could be
reasonably expected to violate the integrity of the refrigerant circuit
and therefore release refrigerants from the appliances into the
environment. Activities reasonably expected to violate the integrity of
the refrigerant circuit include but are not limited to: Attaching or
detaching hoses and gauges to and from the appliance; adding or
removing refrigerant; adding or removing components; and cutting the
refrigerant line. Activities such as painting the appliance, rewiring
an external electrical circuit, replacing insulation on a length of
pipe, or tightening nuts and bolts are not reasonably expected to
violate the integrity of the refrigerant circuit. Activities conducted
on refrigerant-containing appliances that have been properly evacuated
pursuant to 40 CFR 82.156 are not reasonably expected to release
refrigerants unless the activity includes adding refrigerant to the
appliance. Technicians could include but are not limited to installers,
contractor employees, in-house service personnel, and owners and/or
operators of refrigerant-containing appliances.
Virgin regulated substance means any regulated substance that has
not had any bona fide use in equipment.
Sec. 84.104 Prohibitions.
(a) Sale of recovered refrigerant. No person may sell, distribute,
or transfer to a new owner, or offer for sale, distribution, or
transfer to a new owner, any regulated substance used as a refrigerant
in stationary refrigerant-containing equipment consisting in whole or
in part of recovered regulated substances, unless the recovered
regulated substance:
(1) Has been reclaimed by a person who has been certified as a
reclaimer under 40 CFR 82.164 and has been reclaimed by being
reprocessed to all of the specifications in appendix A to 40 CFR part
82, subpart F that are applicable to that regulated substance and
verified to meet these specifications using the analytical methodology
prescribed in section 5 of appendix A to 40 CFR part 82, subpart F; or
(2) Is sold, distributed, or transferred to a new owner, or offered
for sale, distribution, or transfer to a new owner solely for the
purposes of being reclaimed or destroyed.
(b) [Reserved]
Sec. 84.106 Leak repair.
(a) Applicability. This section applies to refrigerant-containing
appliances with a full charge of 15 or more pounds of refrigerant where
the refrigerant contains:
(1) A regulated substance,
(2) A substitute for a regulated substance that has a global
warming potential greater than 53, based on the global warming
potentials listed in table 1 of Sec. 84.64(b).
(3) Notwithstanding the criteria in paragraphs (a)(1) and (2) of
this section, the requirements of this section do not apply to:
(i) Appliances (as defined in 40 CFR 82.152) containing solely an
ozone-depleting substance as listed in 40 CFR part 82, subpart A as a
refrigerant;
(ii) Refrigerant-containing appliances used for the residential and
light commercial air conditioning and heat pump subsector.
(4) The requirements of this section apply as of January 1, 2026.
(b) Leak rate calculation. Persons adding or removing refrigerant
from a refrigerant-containing appliance must, upon conclusion of that
installation, service, repair, or disposal, provide the owner or
operator with documentation that meets the applicable requirements of
paragraph (l)(2) of this section. The owner or operator must calculate
the leak rate every time refrigerant is added to an appliance unless
the addition is made immediately following a retrofit, installation of
a new refrigerant-containing appliance, or qualifies as a seasonal
variance.
(1) Where an owner or operator is using the annualizing method to
calculate a leak rate for a refrigerant-containing appliance for the
first time after January 1, 2026, the calculation should substitute 365
days as the number of days since last refrigerant addition.
(2) Where an owner or operator is using the rolling average method
to calculate a leak rate for a refrigerant-containing appliance for the
first time after January 1, 2026, the calculation should substitute
pounds of refrigerant added since January 1, 2026.
(3) An owner or operator may switch to a different leak rate
calculation methodology only if the following requirements are met:
(i) The owner or operator has purchased or otherwise acquired an
operating facility with one or more refrigerant-containing appliance(s)
which was previously using a different leak rate calculation
methodology than the methodology being used at other facilities owned
or operated by the owner or operator;
(ii) The owner or operator has determined the refrigerant-
containing appliance(s) at any operating facility for which the leak
rate calculation methodology would change are not exceeding the
applicable leak rate in paragraph (c)(2) of this section under either
of the leak rate calculation methodologies ; and
(iii) The owner or operator must retain a record of this change as
described in paragraph (l)(3) of this section.
(c) Requirement to address leaks through repair, or retrofitting or
retiring a refrigerant-containing appliance. (1) Owners or operators
must repair leaks in refrigerant-containing appliances with a leak rate
over the applicable leak rate in this paragraph in accordance with
paragraphs (d) through (f) of this section unless the owner or operator
elects to retrofit or retire the refrigerant-containing appliance in
compliance with paragraphs (h) and (i) of this section. If the owner or
operator elects to repair leaks but fails to bring the leak rate below
the applicable leak rate, the owner or operator must create and
implement a retrofit or retirement plan in accordance with paragraphs
(h) and (i) of this section. Repairs must be conducted by a certified
technician, as defined in this subpart.
(2) Leak rates:
(i) 20 percent leak rate for commercial refrigeration appliances;
(ii) 30 percent leak rate for industrial process refrigeration
appliances; and
(iii) 10 percent leak rate for comfort cooling appliances,
refrigerated transport appliances, or other refrigerant-containing
appliances with a full charge of 15 or more pounds of
[[Page 82863]]
refrigerant not covered by paragraph (c)(2)(i) or (ii) of this section.
(d) Appliance repair. Owners or operators must identify and repair
leaks in accordance with this paragraph within 30 days (or 120 days if
an industrial process shutdown is required) of when refrigerant is
added to a refrigerant-containing appliance exceeding the applicable
leak rate in paragraph (c) of this section.
(1) A certified technician must conduct a leak inspection, as
described in paragraph (g) of this section, to identify the location of
leaks.
(2) Leaks must be repaired such that the leak rate of the
refrigerant-containing appliance is brought below the applicable leak
rate. This must be confirmed by the leak rate calculation performed
upon the next refrigerant addition. Leak repairs will be presumed to be
successful if, over the 12-month period after the date of a successful
follow-up verification test, there is no further refrigerant addition
or if the leak inspections required under paragraph (g) and/or
automatic leak detection systems required by Sec. 84.108 do not find
any leaks in the appliance. Repairs of leaks must be documented by both
an initial and a follow-up verification test or tests.
(3) The time frames in paragraphs (d) through (f) of this section
are temporarily suspended when an appliance is mothballed. The time
will resume on the day additional refrigerant is added to the
refrigerant-containing appliance (or component of a refrigerant-
containing appliance if the leaking component was isolated).
(e) Verification tests. The owner or operator must conduct both
initial and follow-up verification tests on each leak that was repaired
under paragraph (d) of this section.
(1) Initial verification test. Unless granted additional time, an
initial verification test must be performed within 30 days (or 120 days
if an industrial process shutdown is required) of a refrigerant-
containing appliance exceeding the applicable leak rate in paragraph
(c) of this section. An initial verification test must demonstrate that
for leaks where repair attempts were made, the adjustments or
alterations to the refrigerant-containing appliance have held.
(i) For repairs that can be completed without the need to open or
evacuate the refrigerant-containing appliance, the test must be
performed after the conclusion of the repairs and before any additional
refrigerant is added to the refrigerant-containing appliance.
(ii) For repairs that require the evacuation of the refrigerant-
containing appliance or portion of the refrigerant-containing
appliance, the test must be performed before adding any refrigerant to
the refrigerant-containing appliance.
(iii) If the initial verification test indicates that the repairs
have not been successful, the owner or operator may conduct as many
additional repairs and initial verification tests as needed within the
applicable time period.
(2) Follow-up verification test. A follow-up verification test must
be performed within 10 days of the successful initial verification test
or 10 days of the refrigerant-containing appliance reaching normal
operating characteristics and conditions (if the refrigerant-containing
appliance or isolated component was evacuated for the repair(s)). Where
it is unsafe to be present or otherwise impossible to conduct a follow-
up verification test when the system is operating at normal operating
characteristics and conditions, the verification test must, where
practicable, be conducted prior to the system returning to normal
operating characteristics and conditions.
(i) A follow-up verification test must demonstrate that leaks where
repair attempts were made are repaired. If the follow-up verification
test indicates that the repairs have not been successful, the owner or
operator may conduct as many additional repairs and verification tests
as needed to bring the refrigerant-containing appliance below the leak
rate within the applicable time period and to verify the repairs.
(ii) [Reserved]
(f) Extensions to the appliance repair deadlines. Owners or
operators are permitted more than 30 days (or 120 days if an industrial
process shutdown is required) to comply with paragraphs (d) and (e) of
this section if they meet the requirements of paragraphs (f)(1) through
(4) of this section or the refrigerant-containing appliance is
mothballed. Extension requests must be signed by an authorized company
official. The request will be considered approved unless EPA notifies
the owners or operators otherwise.
(1) One or more of the following conditions must apply:
(i) The refrigerant-containing appliance is located in an area
subject to radiological contamination or shutting down the refrigerant-
containing appliance will directly lead to radiological contamination.
Additional time is permitted to the extent needed to conduct and finish
repairs in a safe working environment.
(ii) Requirements of other applicable Federal, State, local, or
Tribal regulations make repairs within 30 days (or 120 days if an
industrial process shutdown is required) impossible. Additional time is
permitted to the extent needed to comply with the pertinent
regulations.
(iii) Components that must be replaced are not available within 30
days (or 120 days if an industrial process shutdown is required).
Additional time is permitted up to 30 days after receiving delivery of
the necessary components, not to exceed 180 days (or 270 days if an
industrial process shutdown is required) from the date the refrigerant-
containing appliance exceeded the applicable leak rate.
(2) Repairs to leaks that the technician has identified as
significantly contributing to the exceedance of the leak rate and that
do not require additional time must be completed and verified within
the initial 30-day repair period (or 120-day repair period if an
industrial process shutdown is required);
(3) The owner or operator must document all repair efforts and the
reason for the inability to make all necessary repairs within the
initial 30-day repair period (or 120-day repair period if an industrial
process shutdown is required); and
(4) The owner or operator must request an extension from EPA
electronically, using the Agency's applicable reporting platform,
within 30 days (or 120 days if an industrial process shutdown is
required) of the refrigerant-containing appliance exceeding the
applicable leak rate in paragraph (c) of this section. Extension
requests must include: Identification and address of the facility; the
name of the owner or operator of the refrigerant-containing appliance;
the leak rate; the method used to determine the leak rate and full
charge; the date the refrigerant-containing appliance exceeded the
applicable leak rate; the location of leak(s) to the extent determined
to date; any repairs that have been performed thus far, including the
date that repairs were completed; the reasons why more than 30 days (or
120 days if an industrial process shutdown is required) are needed to
complete the repairs; an estimate of when the repairs will be
completed; and a signature from an authorized company official. If the
estimated completion date is to be extended, a new estimated date of
completion and documentation of the reason for that change must be
submitted to EPA within 30 days of identifying that the completion date
must be extended. The owner or operator must keep a dated copy of these
submissions.
[[Page 82864]]
(g) Leak inspections. (1) The owner or operator must conduct a leak
inspection in accordance with the following schedule on any
refrigerant-containing appliance exceeding the applicable leak rate in
paragraph (c)(2) of this section.
(i) For commercial refrigeration and industrial process
refrigeration appliances with a full charge of 500 or more pounds, leak
inspections must be conducted once every three months after the date of
a successful follow-up verification test, until the owner or operator
can demonstrate through the leak rate calculations required under
paragraph (b) of this section that the appliance has not leaked in
excess of the applicable leak rate for four quarters in a row.
(ii) For commercial refrigeration and industrial process
refrigeration appliances with a full charge of 15 or more pounds but
less than 500 pounds, leak inspections must be conducted once per year
after the date of a successful follow-up verification test, until the
owner or operator can demonstrate through the leak rate calculations
required under paragraph (b) of this section that the appliance has not
leaked in excess of the applicable leak rate for one year.
(iii) For comfort cooling appliances and other appliances not
covered by paragraphs (g)(1)(i) and (ii) of this section, leak
inspections must be conducted once per year after the date of a
successful follow-up verification test, until the owner or operator can
demonstrate through the leak rate calculations required under paragraph
(b) of this section that the appliance has not leaked in excess of the
applicable leak rate for one year.
(2) Leak inspections must be conducted by a certified technician
using method(s) determined by the certified technician to be
appropriate for that refrigerant-containing appliance.
(3) All visible and accessible components of a refrigerant-
containing appliance must be inspected, with the following exceptions:
(i) Where components are insulated, under ice that forms on the
outside of equipment, underground, behind walls, or are otherwise
inaccessible;
(ii) Where personnel must be elevated more than two meters above a
support surface; or
(iii) Where components are unsafe to inspect, as determined by site
personnel.
(4) Quarterly or annual leak inspections are not required on
refrigerant-containing appliances, or portions of refrigerant-
containing appliances, continuously monitored by an automatic leak
detection system that is audited or calibrated annually. An automatic
leak detection system may directly detect refrigerant in air, monitor
its surrounding in a manner other than detecting refrigerant
concentrations in air, or monitor conditions of the appliance. An
automatic leak detection system being used for this purpose must meet
the requirements for automatic leak detection systems in Sec.
84.108(c) through (g) and Sec. 84.108(i).
(i) When an automatic leak detection system is only being used to
monitor portions of a refrigerant-containing appliance, the remainder
of the refrigerant-containing appliance continues to be subject to any
applicable leak inspection requirements.
(ii) [Reserved]
(h) Retrofit or retirement plans. (1) The owner or operator must
create a retrofit or retirement plan within 30 days of:
(i) A refrigerant-containing appliance leaking above the applicable
leak rate in paragraph (c) of this section if the owner or operator
intends to retrofit or retire rather than repair leaks;
(ii) A refrigerant-containing appliance leaking above the
applicable leak rate in paragraph (c) of this section if the owner or
operator fails to take any action to identify or repair leaks; or
(iii) A refrigerant-containing appliance continues to leak above
the applicable leak rate after having conducted the required repairs
and verification tests under paragraphs (d) and (e) of this section.
(2) A retrofit or retirement plan must, at a minimum, contain the
following information:
(i) Identification and location of the refrigerant-containing
appliance;
(ii) Type and full charge of the refrigerant used in the
refrigerant-containing appliance;
(iii) Type and full charge of the refrigerant to which the
refrigerant-containing appliance will be converted, if retrofitted;
(iv) Itemized procedure for converting the refrigerant-containing
appliance to a different refrigerant, including changes required for
compatibility with the new refrigerant, if retrofitted;
(v) Plan for the disposition of recovered refrigerant;
(vi) Plan for the disposition of the refrigerant-containing
appliance, if retired; and
(vii) A schedule, not to exceed one year, for completion of the
appliance retrofit or retirement.
(3) The retrofit or retirement plan must be signed by an authorized
company official, dated, accessible at the site of the refrigerant-
containing appliance in paper copy or electronic format, and available
for EPA inspection upon request.
(4) All identified leaks must be repaired as part of any retrofit
under such a plan.
(5) A retrofit or retirement plan must be implemented as follows:
(i) Unless granted additional time, all work performed in
accordance with the plan must be finished within one year of the plan's
date (not to exceed 12 months from when the plan was finalized as
required in paragraph (h)(1) of this section).
(ii) The owner or operator may request that EPA relieve it of the
obligation to retrofit or retire a refrigerant-containing appliance if
the owner or operator can establish within 180 days of the plan's date
that the refrigerant-containing appliance no longer exceeds the
applicable leak rate and if the owner or operator agrees in writing to
repair all identified leaks within one year of the plan's date
consistent with paragraphs (h)(4) and (h)(5)(i) of this section. The
owner or operator must submit to EPA the retrofit or retirement plan as
well as the following information: The date that the requirement to
develop a retrofit or retirement plan was triggered; the leak rate; the
method used to determine the leak rate and full charge; the location of
the leak(s) identified in the leak inspection; a description of the
repairs that have been completed; a description of repairs that have
not been completed; a description of why repairs were not conducted
within the time frames required under paragraphs (d) and (f) of this
section; and a statement signed by an authorized company official that
all identified leaks will be repaired and an estimate of when those
repairs will be completed (not to exceed one year from date of the
plan). The request will be considered approved unless EPA notifies the
owner or operator within 60 days of receipt of the request that it is
not approved.
(i) Extensions to the one-year retrofit or retirement schedule.
Owners or operators may request more than one year to comply with
paragraph (h) of this section if they meet the requirements of this
paragraph. The request will be considered approved unless EPA notifies
the owners or operators within 60 days of receipt of the request that
it is not approved. The request must be submitted to EPA
electronically, using the Agency's applicable reporting platform,
within seven months of discovering the refrigerant-containing appliance
exceeded the applicable leak rate. The request must include the
identification of the refrigerant-containing appliance;
[[Page 82865]]
name of the owner or operator; the leak rate; the method used to
determine the leak rate and full charge; the date the refrigerant-
containing appliance exceeded the applicable leak rate; the location of
leaks(s) to the extent determined to date; any repairs that have been
finished thus far, including the date that repairs were finished; a
plan to finish the retrofit or retirement of the refrigerant-containing
appliance; the reasons why more than one year is necessary to retrofit
or retire the refrigerant-containing appliance; the date of
notification to EPA; a signature from an authorized company official;
and an estimate of when the retrofit or retirement will be finished. A
dated copy of the request must be available on-site in either
electronic or paper copy. If the estimated completion date is to be
revised, a new estimated date of completion and documentation of the
reason for that change must be submitted to EPA electronically, using
the Agency's applicable reporting platform, within 30 days.
Additionally, the time frames in paragraph (h) of this section and this
paragraph (i) are temporarily suspended when a refrigerant-containing
appliance is mothballed. The time will resume running on the day
additional refrigerant is added to the refrigerant-containing appliance
(or component of a refrigerant-containing appliance if the leaking
component was isolated).
(1) Extensions available to industrial process refrigeration.
Owners or operators of industrial process refrigeration appliances may
request additional time beyond the one-year period in paragraph (h) of
this section to finish the retrofit or retirement under the following
circumstances:
(i) Requirements of other applicable Federal, State, local, or
Tribal regulations make a retrofit or retirement within one year
impossible. Additional time is permitted to the extent needed to comply
with the pertinent regulations;
(ii) The new or the retrofitted equipment is custom-built as
defined in this subpart and the supplier of the appliance or one of its
components has quoted a delivery time of more than 30 weeks from when
the order is placed. The appliance or appliance components must be
installed within 120 days after receiving delivery of the necessary
parts;
(iii) The equipment or component is located in an area subject to
radiological contamination and creating a safe working environment will
require more than 30 weeks; or
(iv) After receiving an extension under paragraph (i)(1)(ii) of
this section, owners or operators may request additional time if
necessary to finish the retrofit or retirement of the refrigerant-
containing appliance. The request must be submitted to EPA before the
end of the ninth month of the initial extension and must include the
same information submitted for that extension, with any necessary
revisions. A dated copy of the request must be available on-site in
either electronic or paper copy. The request will be considered
approved unless EPA notifies the owners or operators within 60 days of
receipt of the request that it is not approved.
(2) [Reserved]
(j) Chronically leaking appliances. Owners or operators of
refrigerant-containing appliances containing 15 or more pounds of
refrigerant that leak 125 percent or more of the full charge in a
calendar year must submit a report containing the information required
in paragraph (m)(4) of this section to EPA by March 1 of the subsequent
year.
(k) Purged refrigerant. In calculating annual leak rates, purged
refrigerant that is destroyed at a verifiable destruction efficiency of
98 percent or greater will not be counted toward the leak rate.
(l) Recordkeeping. All records identified in this paragraph must be
kept for at least three years in electronic or paper format, unless
otherwise specified.
(1) By January 1, 2026, or upon installation for refrigerant-
containing appliances installed on or after January 1, 2026, owners or
operators must determine the full charge of all refrigerant-containing
appliances with 15 or more pounds of refrigerant and maintain the
following information for each appliance until three years after the
appliance is retired:
(i) The identification of the owner or operator of the refrigerant-
containing appliance;
(ii) The address where the appliance is located;
(iii) The full charge of the refrigerant-containing appliance and
the method for how the full charge was determined;
(iv) If using method 4 (using an established range) for determining
full charge, records must include the range for the full charge of the
refrigerant-containing appliance, its midpoint, and how the range was
determined;
(v) Any revisions of the full charge, how they were determined, and
the dates such revisions occurred; and
(vi) The date of installation.
(2) Owners or operators must maintain a record including the
following information for each time a refrigerant-containing appliance
with a full charge of 15 or more pounds is installed, serviced,
repaired, or disposed of, when applicable.
(i) The identity and location of the refrigerant-containing
appliance;
(ii) The date of the installation, service, repair, or disposal
performed;
(iii) The part(s) of the refrigerant-containing appliance being
installed, serviced, repaired, or disposed;
(iv) The type of installation, service, repair, or disposal
performed for each part;
(v) The name of the person performing the installation, service,
repair, or disposal;
(vi) The amount and type of refrigerant added to, or in the case of
disposal removed from, the appliance;
(vii) The full charge of the refrigerant-containing appliance; and
(viii) The leak rate and the method used to determine the leak rate
(not applicable when disposing of the refrigerant-containing appliance,
following a retrofit, installing a new refrigerant-containing
appliance, or if the refrigerant addition qualifies as a seasonal
variance).
(3) Owners or operators must maintain the following records of
changes to the leak rate calculation method after a change in ownership
or acquisition specified in paragraph (b)(3) of this section:
(i) Basic identification information (i.e., owner or operator,
facility name, facility address where appliance is located, and
appliance ID or description);
(ii) The date the operating facility referenced in paragraph
(b)(3)(i) was purchased or otherwise acquired;
(iii) The leak rates for all refrigerant-containing appliances at
any operating facility for which the leak rate calculation methodology
would change, listing the results for each leak rate calculation
methods (the annualizing method and the rolling average method)
separately;
(iv) The date the new leak rate calculation method is adopted; and
(v) The leak rate calculation method the owner or operator is using
after the change.
(4) If the installation, service, repair, or disposal is done by
someone other than the owner or operator, that person must provide a
record containing the information specified in paragraph (l)(2)(i)
through (l)(2)(vi) of this section, when applicable, to the owner or
operator.
(5) Owners or operators must keep records of leak inspections that
include the date of inspection, the method(s) used to conduct the leak
inspection, a list of the location of each leak that was identified,
and a certification that all
[[Page 82866]]
visible and accessible parts of the refrigerant-containing appliance
were inspected. The certified technicians conducting the leak
inspections must, upon conclusion of that service, provide the owner or
operator of the refrigerant-containing appliance with documentation
that meets these requirements.
(6) If using an automatic leak detection system, the owner or
operator must maintain records regarding the installation and the
annual audit and calibration of the system, a record of each date the
monitoring system identified a leak, and the location of the leak.
(7) Owners or operators must maintain records of the dates and
results of all initial and follow-up verification tests. Records must
include the location of the refrigerant-containing appliance, the
date(s) of the verification tests, the location(s) of all repaired
leaks that were tested, the type(s) of verification test(s) used, and
the results of those tests. The certified technicians conducting the
initial or follow-up verification tests must, upon conclusion of that
service, provide the owner or operator of the appliance with
documentation that meets these requirements.
(8) Owners or operators must maintain retrofit or retirement plans
developed in accordance with paragraph (h) of this section.
(9) Owners or operators must maintain retrofit and/or retirement
extension requests submitted to EPA in accordance with paragraph (i) of
this section.
(10) Owners or operators that suspend the deadlines in this section
by mothballing a refrigerant-containing appliance must keep records
documenting when the appliance was mothballed and when additional
refrigerant was added to the appliance (or isolated component).
(11) Owners or operators who exclude purged refrigerants that are
destroyed from annual leak rate calculations must maintain records to
support the amount of refrigerant claimed as sent for destruction.
Records must be based on a monitoring strategy that provides reliable
data to demonstrate that the amount of refrigerant claimed to have been
destroyed is not greater than the amount of refrigerant actually purged
and destroyed and that the 98 percent or greater destruction efficiency
is met. Records must include flow rate, quantity or concentration of
the refrigerant in the vent stream, and periods of purge flow. Records
must include:
(i) The identification of the facility and a contact person,
including the address and telephone number;
(ii) A description of the refrigerant-containing appliance,
focusing on aspects relevant to the purging of refrigerant and
subsequent destruction;
(iii) A description of the methods used to determine the quantity
of refrigerant sent for destruction and type of records that are being
kept by the owners or operators where the appliance is located;
(iv) The frequency of monitoring and data-recording; and
(v) A description of the control device, and its destruction
efficiency.
(12) Owners or operators that exclude additions of refrigerant due
to seasonal variance from their leak rate calculation must maintain
records stating that they are using the seasonal variance flexibility
and documenting the amount added and removed under paragraph (l)(2) of
this section.
(13) Owners or operators that submit reports to EPA in accordance
with paragraph (m) of this section must maintain copies of the
submitted reports and any responses from EPA.
(m) Reporting. All notifications must be submitted electronically
using the Agency's applicable reporting platform.
(1) Owners or operators must notify EPA electronically, using the
Agency's applicable reporting platform, in accordance with paragraph
(f) of this section when seeking an extension of time to complete
repairs.
(2) Owners or operators must notify EPA electronically, using the
Agency's applicable reporting platform, in accordance with paragraph
(h)(5)(ii) of this section when seeking relief from the obligation to
retrofit or retire an appliance.
(3) Owners or operators must notify EPA electronically, using the
Agency's applicable reporting platform, in accordance with paragraph
(i) of this section when seeking an extension of time to complete the
retrofit or retirement of an appliance.
(4) Owners or operators must report to EPA electronically, using
the Agency's applicable reporting platform, the following information
in accordance with paragraph (j) of this section for any refrigerant-
containing appliance containing 15 or more pounds of refrigerant that
leaks 125 percent or more of the full charge in a calendar year:
(i) Basic identification information (i.e., owner or operator,
facility name, facility address where appliance is located, and
appliance ID or description);
(ii) Refrigerant-containing appliance type (comfort cooling or
other, industrial process refrigeration, or commercial refrigeration);
(iii) Refrigerant type;
(iv) Full charge of appliance (pounds);
(v) Annual percent refrigerant loss;
(vi) Dates of refrigerant addition;
(vii) Amounts of refrigerant added;
(viii) Date of last successful follow-up verification test;
(ix) Explanation of cause refrigerant losses;
(x) Description of repair actions taken;
(xi) Whether a retrofit or retirement plan has been developed for
the refrigerant-containing appliance and if so, the anticipated date of
retrofit or retirement; and
(xii) A signed statement from an authorized company official.
(5) When excluding purged refrigerants that are destroyed from
annual leak rate calculations, owners or operators must notify EPA
electronically, using the Agency's applicable reporting platform,
within 60 days after the first time the exclusion is used by the
facility where the appliance is located. The report must include the
information included in paragraph (l)(11) of this section and must be
signed by an authorized company official.
Sec. 84.108 Automatic leak detection systems.
(a) Owners or operators of refrigerant-containing appliances used
for industrial process refrigeration or commercial refrigeration with a
full charge of 1,500 pounds or greater of a refrigerant containing a
regulated substance or a substitute for a regulated substance with a
global warming potential greater than 53 must install and use an
automatic leak detection system in accordance with this section.
(1) If the refrigerant in a refrigerant-containing appliance
contains a substitute for a regulated substance, whether the global
warming potential of the substitute is greater than 53 will be
determined as described in Sec. 84.106(a)(2).
(2) [Reserved]
(b)(1) Owners and operators of refrigerant-containing appliances
that are subject to the requirements under paragraph (a) of this
section and that are installed on or after January 1, 2026, must
install and use an automatic leak detection system upon installation of
the refrigerant-containing appliance or within 30 days of installation
of the refrigerant-containing appliance.
(2) Owners and operators of refrigerant-containing appliances that
are subject to the requirements under paragraph (a) of this section and
that
[[Page 82867]]
were installed on or after January 1, 2017, and before January 1, 2026,
must install and use an automatic leak detection system by January 1,
2027.
(c) Automatic leak detection systems must be installed in
accordance with manufacturer instructions.
(d) Automatic leak detection systems must be audited and calibrated
annually.
(e) Automatic leak detection systems are required to monitor
components located inside an enclosed building or structure.
(f) For automatic leak detection systems that directly detect the
presence of a refrigerant in air, the system must:
(1) Have sensors or intakes placed so that they will continuously
monitor the refrigerant concentrations in air in proximity to the
compressor, evaporator, condenser, and other areas with a high
potential for a refrigerant leak;
(2) Accurately detect a concentration level of 10 parts per million
of vapor of the specific refrigerant or refrigerants used in the
refrigerant-containing appliance(s); and
(3) Alert the owner or operator when a refrigerant concentration of
100 parts per million of vapor of the specific refrigerant or
refrigerants used in the appliance(s) is reached.
(g) For automatic leak detection systems that monitor conditions of
the refrigerant-containing appliance, the system must automatically
alert the owner or operator when measurements indicate a loss of 50
pounds of refrigerant or 10 percent of the full charge, whichever is
less.
(h) When an automatic leak detection system alerts an owner or
operator of a leak as described in this section, owners and operators
of refrigerant-containing appliances using automatic leak detection
systems must comply with the requirements either in paragraph (h)(1) or
in (h)(2) of this section and must also comply with paragraph (h)(3) of
this section where applicable:
(1) Calculate the leak rate within 30 days (or 120 days where an
industrial process shutdown would be necessary) of an alert and, if the
leak rate is above the applicable leak rate as described in Sec.
84.106(c)(2), comply with the full suite of leak repair provisions in
Sec. 84.106; or
(2) Preemptively repair the identified leak(s) before adding
refrigerant to the appliance and then calculate the leak rate within 30
days (or 120 days where an industrial process shutdown would be
necessary) of an alert. If the leak rate is above the applicable leak
rate as described in Sec. 84.106(c)(2), the owner or operator must
comply with the full suite of leak repair provisions in Sec. 84.106.
(3) Where a refrigerant-containing appliance using an automatic
leak detection system is found to be leaking above the applicable leak
rate as described in Sec. 84.106(c)(2), and the automatic leak system
is only being used to monitor portions of an appliance, the remainder
of the appliance continues to be subject to any applicable leak
inspection requirements, as described in Sec. 84.106(g).
(i) Recordkeeping. The owner or operator must maintain records for
at least three years in electronic or paper format, unless otherwise
specified, regarding:
(1) The installation of the automatic leak detection system;
(2) The annual audit and calibration of the system;
(3) A record of each date the automatic leak detection system
triggers an alert; and
(4) The location of the leak(s) which resulted in the alarm.
Sec. 84.110 Emissions from fire suppression equipment.
(a) As of January 1, 2026, no person installing, servicing,
repairing, or disposing of fire suppression equipment containing a
regulated substance may knowingly vent or otherwise release into the
environment any regulated substances used in such equipment.
(1) Release of regulated substances during testing of fire
suppression equipment is not subject to the prohibition under this
paragraph (a) if the following four conditions are met:
(i) Equipment employing suitable alternative fire suppression
agents are not available;
(ii) Release of fire suppression agent is essential to demonstrate
equipment functionality;
(iii) Failure of the system or equipment would pose great risk to
human safety or the environment; and
(iv) A simulant agent cannot be used in place of the regulated
substance for testing purposes.
(2) The prohibition under this paragraph (a) does not apply to
qualification and development testing during the design and development
process of fire suppression equipment containing regulated substances
when such tests are essential to demonstrate equipment functionality
and when a suitable simulant agent cannot be used in place of the
regulated substance for testing purposes.
(3) The prohibition under this paragraph (a) does not apply to the
emergency release of regulated substances for the legitimate purpose of
fire extinguishing, explosion inertion, or other emergency applications
for which the fire suppression equipment was designed.
(b) As of January 1, 2026, no owner or operator of fire suppression
equipment containing regulated substances shall allow the release of
regulated substances to occur as a result of failure to maintain such
fire suppression equipment.
(c) As of January 1, 2030, recycled regulated substances must be
used for the initial installation of new fire suppression equipment,
including both total flooding systems and streaming applications, that
is installed in the United States. As of January 1, 2026, recycled
regulated substances must be used for the servicing and/or repair of
existing fire suppression equipment in the United States, including
both total flooding systems and streaming applications. Notwithstanding
the prior sentences, if the fire suppression equipment does not use any
regulated substance, this requirement does not apply. If the fire
suppression equipment uses a regulated substance in combination with
other fire suppression agents, this requirement will only apply to the
regulated substance used.
(d) Any person who employs fire suppression technicians who
install, service, repair, or dispose of fire suppression equipment
containing regulated substances shall train technicians hired on or
before January 1, 2026, on emissions reduction of regulated substances
by June 1, 2026. Fire suppression technicians hired after January 1,
2026, shall be trained regarding emissions reduction of regulated
substances within 30 days of hiring, or by June 1, 2026, whichever is
later.
(1) The fire suppression technician training shall include an
explanation of the purpose of the training requirement and also address
the following:
(i) The significance of minimizing releases of regulated substances
and ensuring technician safety;
(ii) An overview of regulated substances and environmental concerns
with regulated substances, including discussion of other federal,
State, local, or Tribal fire, building, safety, and environmental codes
and standards;
(iii) A review of relevant regulations concerning regulated
substances, including the requirements of this subpart that apply with
respect to fire suppression equipment; and
(iv) Specific technical instruction relevant to avoiding
unnecessary emissions of regulated substances during the servicing,
repair, disposal, or installation of fire suppression equipment at the
different types of facilities where the technician might
[[Page 82868]]
perform such work on fire suppression equipment.
(2) [Reserved]
(e) As of January 1, 2026, no person shall dispose of fire
suppression equipment containing regulated substances except by either
recovering the regulated substances themselves before sending the
equipment for disposal or by leaving the regulated substances in the
equipment and sending it for disposal to a facility, such as a fire
suppression equipment manufacturer, a distributor, or a fire
suppressant recycler.
(f) As of January 1, 2026, no person shall dispose of regulated
substances used as a fire suppression agent except by sending it for
recycling to a fire suppressant recycler or a reclaimer certified under
40 CFR 82.164, or by arranging for its destruction using one of the
controlled processes listed in Sec. 84.29.
(1) Any person using a device to recover, store, and/or transfer
regulated substances used in fire suppression equipment must: evacuate
the device used to recover, store, and/or transfer regulated substances
prior to each use to prevent contamination, arrange for destruction of
the recovered regulated substances as necessary; and collect and
dispose of wastes from the recycling process.
(2) Any person using recovery and recycling equipment to recover
regulated substances from fire suppression equipment must:
(i) Operate and maintain recovery and recycling equipment in
accordance with manufacturer specifications to ensure that the
equipment performs as specified;
(ii) Repair leaks in storage, recovery, recycling, and/or charging
equipment used with regulated substances before use; and
(iii) Ensure that cross-contamination does not occur through the
mixing of regulated substances that may be contained in similar
cylinders.
(g)(1) As of January 1, 2026, any person who performs first fill of
fire suppression equipment, service (e.g., recharge) of fire
suppression equipment, and/or recycles regulated substances recovered
from fire suppression equipment, such as equipment manufacturers,
distributors, agent suppliers, or installers that recycle regulated
substances, must submit a report to EPA annually covering the prior
year's activity from January 1 through December 31. The first annual
report must be submitted to the Agency on February 14, 2027, and
subsequent annual reports must be submitted by February 14 of each
subsequent year. Each annual report must be submitted electronically,
using the Agency's applicable reporting platform. Each annual report
must contain basic identification information (i.e., owner name,
facility name, facility address where equipment is located) and the
following information for each regulated substance: the quantity of
material (the combined mass of regulated substance and contaminants)
sold for the purpose of installation of new fire suppression equipment
and servicing and/or repair of existing fire suppression equipment; the
quantity of material (the combined mass of regulated substance and
contaminants) in inventory onsite for the purpose of installation of
new fire suppression equipment and servicing and/or repair of existing
fire suppression equipment broken out by recovered, recycled, and
virgin; the total mass of each regulated substance sold for the purpose
of installation of new fire suppression equipment and servicing and/or
repair of existing fire suppression equipment; the total mass of each
regulated substance in inventory onsite for the purpose of installation
of new fire suppression equipment and servicing and/or repair of
existing fire suppression equipment broken out by recovered, recycled,
and virgin; and the total mass of waste products the reporting entity
sent for disposal, along with information about the disposal facility
if waste is not processed by the reporting entity. A copy of the
submitted reports must be maintained for three years in either
electronic or paper format. If any entity reports information to EPA
under Sec. 84.31(j) that is also required to be reported under this
paragraph, to the extent the information reported under Sec. 84.31(j)
overlaps with the information that must be reported under this
paragraph, in lieu of reporting the same information twice, the entity
may refer to the corresponding information reported under Sec.
84.31(j) and explain how it satisfies the reporting requirements in
completing the reporting under this paragraph.
(2) As of January 1, 2026, any person who employs fire suppression
technicians who service, repair, install, or dispose of fire
suppression equipment containing regulated substances must maintain an
electronic or paper copy of the fire suppression technician training
used to meet the requirements in paragraph (d) of this section and make
that copy available to EPA upon request. These entities must document
that they have provided training to personnel as specified in paragraph
(d) of this section and must maintain these records for three years
after each training in either electronic or paper format.
(3) As of January 1, 2026, owners and operators of fire suppression
equipment containing regulated substances must maintain records
documenting that regulated substances are recovered from the fire
suppression equipment before it is sent for disposal as specified in
paragraph (e) of this section. Such records must be maintained for
three years after the relevant equipment is sent for disposal in either
electronic or paper format.
Sec. 84.112 Reclamation.
(a) Reclamation Standard. As of January 1, 2026, no person may
sell, identify, or report refrigerant as being reclaimed for use in the
installation, servicing, or repair of refrigerant-containing equipment
if the regulated substance component of the resulting refrigerant
contains more than 15 percent, by weight, of virgin regulated
substance.
(b) Bona fide use. No person may sell, identify, or report
refrigerant as being reclaimed if it contains any recovered regulated
substance that has not had bona fide use in equipment, unless that
refrigerant was removed from the heel or residue of a container that
had a bona fide use in the servicing, repair, or installation of
refrigerant-containing equipment.
(c) Labeling. As of January 1, 2026, reclaimers certified under 40
CFR 82.164 must affix a label to any container they fill that is being
sold or distributed or offered for sale or distribution and that
contains reclaimed regulated substances to certify that the contents do
not exceed 15 percent, by weight, of virgin regulated substances.
(1) The label must read: ``The contents of this container do not
exceed the limit of 15 percent, by weight, on virgin regulated
substance per 40 CFR 84.112(a).''
(2) The label must be:
(i) In English;
(ii) Durable and printed or otherwise labeled on, or affixed to, an
external surface of the container;
(iii) Readily visible and legible;
(iv) Able to withstand open weather exposure without a substantial
reduction in visibility or legibility; and
(v) Displayed on a background of contrasting color.
(d) Recordkeeping. As of January 1, 2026, reclaimers certified
under 40 CFR 82.164 must generate a record to certify that the
reclaimed regulated substance(s) being used to fill a container that
will be sold or distributed or offered for sale or distribution do not
[[Page 82869]]
exceed 15 percent, by weight, of virgin regulated substances.
(1) The record must be generated electronically, in a format
specified by EPA.
(2) The record must contain the following information:
(i) The name, address, contact person, email address, and phone
number of the reclaimer certified under 40 CFR 82.164 who is making the
certification;
(ii) The date the container was filled with reclaimed regulated
substance(s);
(iii) The amount and name of the regulated substance(s) in the
container(s);
(iv) Certification that the contents of the container are from a
batch where the amount of virgin regulated substance(s) does not exceed
15 percent, by weight, of the total regulated substance(s);
(v) The unique serial number associated with the container(s)
filled from the batch;
(vi) Identification of the batch of reclaimed regulated
substance(s) used to fill the container(s); and
(vii) The percent, by weight, of virgin regulated substance(s) in
the batch used to fill the container(s).
(3) The record must be maintained by the reclaimer certified under
40 CFR 82.164 for three years.
(e) Servicing and/or repair. As of January 1, 2029, the servicing
and/or repair of refrigerant-containing equipment that contains a
regulated substance must be done with reclaimed refrigerant that meets
the requirements of 84.112(a)-(c) of this section if such equipment is
in one or more of the following subsectors:
(1) Supermarket systems;
(2) Refrigerated transport; and
(3) Automatic commercial ice makers.
(f) Reporting. (1) Reclaimers, distributors, and wholesalers of
reclaimed refrigerants that contain regulated substances that are sold
or distributed for the intended purpose of servicing and/or repair of
refrigerant-containing equipment in the subsectors listed in paragraph
(e) of this section must submit a report to EPA electronically, using
the Agency's applicable reporting platform, by February 14, 2027,
covering activity from January 1 through December 31, 2026 and
containing the following information: name and address of the company;
contact person, email address, and phone number of the responsible
party; the quantity of reclaimed refrigerant containing regulated
substance(s) by the name and mass of reclaimed refrigerant(s); and
indication of the specific subsector(s) where the reclaimed
refrigerant(s) containing regulated substance(s) are sold or
distributed.
(2) Reclaimers, distributors, and wholesalers of reclaimed
refrigerants that contain regulated substances that are sold or
distributed for the intended purpose of servicing and/or repair of
refrigerant-containing equipment in the subsectors listed in paragraph
(e) of this section must submit a report to EPA electronically, using
the Agency's applicable reporting platform, by February 14, 2028,
covering activity from January 1 through December 31, 2027 and
containing the following information: name and address of the company;
contact person, email address, and phone number of the responsible
party; the quantity of reclaimed refrigerant containing regulated
substance(s) by the name and mass of reclaimed refrigerant(s); and
indication of the specific subsector(s) where the reclaimed
refrigerant(s) containing regulated substance(s) are sold or
distributed.
Sec. 84.114 Exemptions.
(a) Notwithstanding the other provisions of this subpart, the
regulations under this subpart do not apply to a regulated substance or
a substitute for a regulated substance that is contained in a foam.
(b) Notwithstanding the other provisions of this subpart, the
regulations under this subpart do not apply to two applications,
mission-critical military end uses and on board aerospace fire
suppression, as listed at Sec. 84.13(a), for a year or years for which
that application receives an application-specific allowance as defined
at Sec. 84.3.
Sec. 84.116 Requirements for disposable cylinders.
(a) As of January 1, 2028, any person who uses a disposable
cylinder must send such disposable cylinder for further processing to
remove the heel, as described in paragraphs (b) and (c) of this
section, when:
(1) The disposable cylinder contains a regulated substance(s);
(2) The disposable cylinder was used in the servicing, repair, or
installation of refrigerant-containing equipment or fire suppression
equipment; and
(3) The person does not intend to use the disposable cylinder in
future servicing, repair, or installation of refrigerant-containing
equipment or fire suppression equipment.
(b) Except as provided in paragraphs (e) and (g) in this section,
disposable cylinders that meet the criteria in paragraphs (a)(1),
(a)(2), and (a)(3) of this section must be sent to:
(1) A reclaimer certified under 40 CFR 82.164;
(2) A fire suppressant recycler, if the disposable cylinder was
used in the servicing, repair, or installation of fire suppression
equipment;
(3) A final processor, such as a landfill operator or a scrap metal
recycler, who is capable of removing the heel from disposable
cylinders; or
(4) A refrigerant supplier (including but not limited to
distributors and wholesalers), who is capable of removing the heel from
disposable cylinders.
(c) Regulated substance(s) removed from heels of disposable
cylinders by those entities identified in paragraphs (b)(3) and (b)(4)
of this section, where those removed heels are or are not aggregated
into a larger container, must be sent to a reclaimer certified under 40
CFR 82.164 or a fire suppressant recycler.
(1) Regulated substance(s) removed from heels of disposable
cylinders that exhibit ignitability characteristics (per 40 CFR
261.21), where those removed heels are or are not aggregated into a
larger container, must be sent to a reclaimer certified under 40 CFR
82.164 that is in compliance with the requirements at 40 CFR part 266,
subpart Q.
(2) [Reserved]
(d) As of January 1, 2028, an entity as described in paragraphs
(b)(1), (b)(2), (b)(3), or (b)(4) of this section who receives a
disposable cylinder meeting the criteria in paragraphs (a)(1), (a)(2),
and (a)(3) of this section must remove all remaining contents from the
disposable cylinder prior to discarding the disposable cylinder.
(e) Disposable cylinders that that meet the criteria in paragraphs
(a)(1), (a)(2), and (a)(3) of this section may be discarded to a final
processor without meeting the requirements in paragraphs (b) and (d) of
this section, when:
(1) The heel was removed by a certified technician;
(2) The heel of the used disposable cylinder has been evacuated to
a vacuum of 15 in-Hg prior to discarding the cylinder;
(3) The certified technician provides a certification statement,
which certifies that the heel was evacuated to a vacuum of 15 in-Hg;
states the name and address of the certified technician who evacuated
the cylinder(s) and the date the cylinder(s) was/were evacuated; and is
signed by the certified technician who evacuated the cylinder(s); and
(4) The certified technician discarding the cylinder to the final
processor must provide the signed certification statement described in
paragraph (e)(3) of this section to the final processor (which may
include a landfill operator
[[Page 82870]]
or scrap metal recycler) when they discard the cylinder to the final
processor.
(f) Recordkeeping. A final processor who receives a disposable
cylinder as described in paragraph (e) of this section must maintain a
record of the signed statement for three years.
(g) Small cans of refrigerant that contain no more than two pounds
of refrigerant and that qualify for the exemption described in 40 CFR
82.154(c)(1)(ix) are not subject to the requirements in paragraphs (b)
through (f) of this section.
Sec. 84.118 Treatment of data submitted under 40 CFR part 84, subpart
C
(a) Except as otherwise provided in this section, 40 CFR 2.201
through 2.215 and 2.301 do not apply to data submitted under this
subpart that EPA has determined through rulemaking to be either of the
following:
(1) Emission data, as defined in 40 CFR 2.301(a)(2), determined in
accordance with section 114(c) and 307(d) of the Clean Air Act; or
(2) Data not otherwise entitled to confidential treatment.
(b) Except as otherwise provided in paragraph (d) of this section,
40 CFR 2.201 through 2.208 and 2.301(c) and (d) do not apply to data
submitted under this subpart that EPA has determined through rulemaking
to be entitled to confidential treatment. EPA shall treat that
information as confidential in accordance with the provisions of 40 CFR
2.211, subject to paragraph (d) of this section and 40 CFR 2.209.
(c) Upon receiving a request under 5 U.S.C. 552 for data submitted
under this subpart that EPA has determined through rulemaking to be
entitled to confidential treatment, the relevant Agency official shall
furnish the requestor a notice that the information has been determined
to be entitled to confidential treatment and that the request is
therefore denied. The notice shall include or cite to the appropriate
EPA determination.
(d) A determination made through rulemaking that information
submitted under this subpart is entitled to confidential treatment
shall continue in effect unless, subsequent to the confidentiality
determination through rulemaking, EPA takes one of the following
actions:
(1) EPA determines through a subsequent rulemaking that the
information is emission data or data not otherwise entitled to
confidential treatment; or
(2) The Office of General Counsel issues a final determination,
based on the requirements of 5 U.S.C. 552(b)(4), stating that the
information is no longer entitled to confidential treatment because of
change in the applicable law or newly discovered or changed facts.
Prior to making such final determination, EPA shall afford the business
an opportunity to submit comments on pertinent issues in the manner
described by 40 CFR 2.204(e) and 2.205(b). If, after consideration of
any timely comments submitted by the business, the Office of General
Counsel makes a revised final determination that the information is not
entitled to confidential treatment, the relevant agency official will
notify the business in accordance with the procedures described in 40
CFR 2.205(f)(2).
Sec. 84.120 Relationship to other laws.
Section (k) of the AIM Act states that sections 113, 114, 304, and
307 of the Clean Air Act (42 U.S.C. 7413, 7414, 7604, 7607) shall apply
to this section and any rule, rulemaking, or regulation promulgated by
the Administrator pursuant to this section as though this section were
expressly included in title VI of that Act (42 U.S.C. 7671 et seq.).
Violation of this part is subject to Federal enforcement and the
penalties laid out in section 113 of the Clean Air Act.
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
0
3. The authority citation for part 261 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and
6938.
Subpart A--General
0
4. In Sec. 261.6, revise paragraph (a)(2) introductory text, and add
paragraph (a)(2)(v) to read as follows:
Sec. 261.6 Requirements for recyclable materials.
(a) * * *
(2) The following recyclable materials are not subject to the
requirements of this section but are regulated under subparts C through
Q of part 266 of this chapter and all applicable provisions in parts
268, 270, and 124 of this chapter.
* * * * *
(v) Ignitable spent refrigerants recycled for reuse (40 CFR part
266, subpart Q).
* * * * *
Subpart M--Emergency Preparedness and Response for Management of
Excluded Hazardous Secondary Materials
0
5. In Sec. 261.400, revise the introductory text and add paragraph (c)
to read as follows:
Sec. 261.400 Applicability.
The requirements of this subpart apply to (1) those areas of an
entity managing hazardous secondary materials excluded under Sec.
261.4(a)(23) and/or (24) where such materials are generated or
accumulated on site, and (2) facilities regulated under the standards
at 40 CFR part 266, subpart Q that receive ignitable spent refrigerant
from off-site and that are not transfer facilities that store the
refrigerants for less than ten (10) days.
* * * * *
(c) Facilities receiving refrigerant from off-site under 40 CFR
part 266, subpart Q that are not transfer facilities that store the
refrigerants for less than ten (10) days must comply with Sec. Sec.
261.410 and 261.420.
* * * * *
0
6. In Sec. 261.420, revise the section heading and introductory text
to read as follows:
Sec. 261.420 Contingency planning and emergency procedures for
facilities generating or accumulating more than 6,000 kg of hazardous
secondary material or receiving ignitable spent refrigerants
A generator or an intermediate or reclamation facility that
generates or accumulates more than 6,000 kg of hazardous secondary
material, or a facility receiving refrigerant from off-site under 40
CFR part 266, subpart Q, that is not a transfer facility that stores
the refrigerants for less than ten (10) days must comply with the
following requirements:
* * * * *
PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE
0
7. The authority citation for part 262 continues to read as follows:
Authority: 42 U.S.C. 6906, 6912, 6922-6925, 6937, 6938 and
6939g.
Subpart A--General
0
8. In Sec. 262.14, revise paragraph (a)(5)(vi) to read as follows:
Sec. [thinsp]262.14 Conditions for exemption for a very small
quantity generator.
(a) * * *
(5) * * *
(vi) A facility which:
[[Page 82871]]
(A)(1) Beneficially uses or reuses, or legitimately recycles or
reclaims its waste; or
(2) Treats its waste prior to beneficial use or reuse, or
legitimate recycling or reclamation; and
(B) For ignitable spent refrigerants regulated under 40 CFR part
266 subpart Q, meets the requirements of that subpart.
* * * * *
PART 266--STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES
AND SPECIFIC TYPES OF HAZARDOUS WASTE MANAGEMENT FACILITIES
0
9. The authority citation for part 266 continues to read as follows:
Authority: 42 U.S.C. 1006, 2002(a), 3001-3009, 3014, 3017,
6905, 6906, 6912, 6921, 6922, 6924-6927, 6934, and 6937.
0
10. Add subpart Q, consisting of Sec. Sec. 266.600 through 266.602, to
read as follows:
Subpart Q--Ignitable Spent Refrigerants Recycled for Reuse
Sec.
266.600 Purpose and applicability.
266.601 Definitions for this subpart.
266.602 Standards for ignitable spent refrigerant recycled for reuse
under this subpart.
Sec. 266.600 Purpose and applicability.
(a) The purpose of this subpart is to reduce emissions of ignitable
spent refrigerants to the lowest achievable level by maximizing the
recovery and safe recycling for reuse of such refrigerants during the
service, repair, and disposal of appliances.
(b) The requirements of this subpart operate in lieu of parts 260
through 270 of this chapter and apply to lower flammability spent
refrigerants, as defined in Sec. 266.601, where the refrigerant
exhibits the hazardous waste characteristic of ignitability per Sec.
261.21 of this chapter and is being recycled for reuse in the United
States.
(c) These requirements do not apply to other ignitable spent
refrigerants. Ignitable spent refrigerants not subject to this subpart
are subject to all applicable requirements of parts 260 through 270 of
this chapter when recovered (i.e., removed from an appliance and stored
in an external container) and/or disposed of.
Sec. 266.601 Definitions for this subpart.
For the purposes of this subpart, the following terms have the
meanings given below:
(a) Refrigerant has the same meaning as defined in 40 CFR 82.152.
(b) Ignitable spent refrigerant is a used refrigerant that cannot
be reused without first being processed, and that exhibits the
hazardous characteristic of ignitability per Sec. 261.21 of this
chapter. Used refrigerants that can be legitimately reused without
processing are not spent refrigerant.
(c) Recycle for reuse, when referring to an ignitable spent
refrigerant, means to process the refrigerant to remove contamination
and prepare it to be used again. ``Recycle for reuse'' does not include
recycling that involves burning for energy recovery or use in a manner
constituting disposal as defined in Sec. 261.2(c) of this chapter, or
sham recycling as defined in Sec. 261.2(g) of this chapter.
(d) Lower flammability spent refrigerant means a spent refrigerant
that is not considered highly flammable. Highly flammable refrigerants
include but are not limited to the following chemicals: butane,
isobutane, methane, propane, and/or propylene.
Sec. 266.602 Standards for ignitable spent refrigerant recycled for
reuse under this subpart.
(a) Persons who recover (i.e., remove from an appliance and store
in an external container) and/or recycle ignitable spent refrigerants
for reuse either for further use in equipment of the same owner, or in
compliance with motor vehicle air conditioner (MVAC) standards in 40
CFR part 82, subpart B, or who send recovered refrigerant off-site to
be recycled for reuse must:
(1) Recover and/or recycle for reuse the ignitable spent
refrigerant using equipment that is certified for that type of
refrigerant and appliance under Sec. Sec. 82.36 and/or 82.158 of this
chapter; and
(2) Not speculatively accumulate the ignitable spent refrigerant
per Sec. 261.1(c) of this chapter.
(b) Persons who receive ignitable spent refrigerants from off-site,
and are not a transfer facility that stores the refrigerants for less
than ten (10) days before sending the refrigerant to another site to be
recycled for reuse, must:
(1) If recovering the refrigerant, recover the ignitable spent
refrigerant using equipment that is certified for that type of
refrigerant and appliance under Sec. 82.36 of this chapter;
(2) Meet the applicable emergency preparedness and response
requirements of 40 CFR part 261, subpart M; and
(3) Not speculatively accumulate the ignitable spent refrigerant
per Sec. 261.1(c) of this chapter.
(c) Persons receiving ignitable spent refrigerant from off-site to
be recycled for reuse under this subpart must:
(1) Maintain certification by EPA under Sec. 82.164 of this
chapter;
(2) Meet the applicable emergency preparedness and response
requirements of 40 CFR part 261, subpart M; and
(3) Starting with the calendar year beginning January 1, 2029, not
speculatively accumulate the ignitable spent refrigerant per Sec.
261.1(c) of this chapter.
PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE
PERMIT PROGRAM
0
11. The authority citation for part 270 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939, and
6974.
Subpart A--General Information
0
12. In Sec. 270.1, add paragraph (c)(2)(xi) to read as follows:
Sec. [thinsp]270.1 Purpose and scope of the regulations in this part.
* * * * *
(c) * * *
(2) * * *
(xi) Recyclers of ignitable spent refrigerants subject to
regulation under 40 CFR part 266, subpart Q.
* * * * *
PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE
PROGRAMS
0
13. The authority citation for part 271 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6926, and 6939g.
Subpart A--Requirements for Final Authorization
0
14. In Sec. [thinsp]271.1 amend paragraph (j)(2) by:
0
a. In table 1 adding the entry ``December 10, 2024'' in chronological
order.
0
b. In table 2 adding the entry ``December 10, 2024'' in chronological
order.
The additions read as follows:
Sec. [thinsp]271.1 Purpose and scope.
* * * * *
(j) * * *
(2) * * *
[[Page 82872]]
Table 1--Regulations Implementing the Hazardous and Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
Federal Register
Promulgation date Title of regulation reference Effective date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
December 10, 2024.................... Standards for the [Federal Register [Date of publication of
Management of citation of the final the final rule in the
Ignitable Spent rule]. Federal Register].
Refrigerants Recycled
for Reuse.
----------------------------------------------------------------------------------------------------------------
\1\ These regulations implement HSWA only to the extent that they apply to tank systems owned or operated by
small quantity generators, establish leak detection requirements for all new underground tank systems, and
establish permitting standards for underground tank systems that cannot be entered for inspection.
\2\ These regulations, including test methods for benzo(k)fluoranthene and technical standards for drip pads,
implement HSWA only to the extent that they apply to the listing of Hazardous Waste No. F032, and wastes that
are hazardous because they exhibit the Toxicity Characteristic. These regulations, including test methods for
benzo(k)fluoranthene and technical standards for drip pads, do not implement HSWA to the extent that they
apply to the listings of Hazardous Waste Nos. F034 and F035.
\3\ The following portions of this rule are not HSWA regulations: Sec. Sec. 264.19 and 265.19 for final
covers.
\4\ The following portions of this rule are not HSWA regulations: Sec. Sec. 260.30, 260.31, 261.2.
\5\ These regulations implement HSWA only to the extent that they apply to the standards for staging piles and
to Sec. Sec. 264.1(j) and 264.101(d) of this chapter.
Table 2--Self-Implementing Provisions of the Hazardous and Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
Self-implementing Federal Register
Effective date provision RCRA citation reference
----------------------------------------------------------------------------------------------------------------
* * * * * * *
December 10, 2024.................... Standards for the 3001(d)(4) 3004(n)..... [Federal Register
Management of citation of the final
Ignitable Spent rule].
Refrigerants Recycled
for Reuse.
----------------------------------------------------------------------------------------------------------------
\1\ Note that the effective date was changed to Jan. 29, 1986 by the Nov. 29, 1985 rule.
\2\ Note that the effective date was changed to Sept. 22, 1986 by the Mar. 24, 1986 rule.
[FR Doc. 2024-21967 Filed 10-10-24; 8:45 am]
BILLING CODE 6560-50-P