Tuesday, 

January 11, 2005 

Part III 

Environmental 

Protection Agency 

40 CFR Part 82 

Protection of Stratospheric Ozone: Leak 

Repair Requirements for Appliances 

Using Substitute Refrigerants; Final Rule 

1972 Federal Register / Vol. 70, No. 7 / Tuesday, January 11, 2005 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 82 

[FRL–7858–7] 

RIN 2060–AM05 

Protection of Stratospheric Ozone: 

Leak Repair Requirements for 

Appliances Using Substitute 

Refrigerants 

AGENCY: Environmental Protection 


Agency.


ACTION: Final rule.


SUMMARY: The Environmental Protection 

Agency (EPA) is amending the rule on 

mandatory leak repair of appliances, 

promulgated under section 608 of the 

Clean Air Act (CAA or Act), to clarify 

how the requirements of section 608 

extend to appliances using substitutes 

for chlorofluorocarbon (CFC) and 

hydrochlorofluorocarbon (HCFC) 

refrigerants. This final rule affects the 

owners and operators of comfort 

cooling, commercial refrigeration, and 

industrial process refrigeration (IPR) 

appliances with regard to leak repair 

provisions promulgated under section 

608 of the Act. Certain aspects of this 

action will also affect Federal owners 

and operators of commercial and 

comfort-cooling appliances normally 

containing more than 50 pounds of 

refrigerant. This rule supplements a 

statutory and self-effectuating 

prohibition on venting substitutes to the 

atmosphere that became effective on 

November 15, 1995 (i.e., section 

608(c)(2) of the Act). EPA is amending 

the current leak repair requirements for 

refrigeration and air-conditioning 

equipment (i.e., appliances) containing 

CFC and HCFC refrigerants to 

accommodate the proliferation of new 

refrigerants on the market. In addition to 

amending the leak repair requirements, 

this final rule extends the leak repair 

provisions of section 608 to appliances 

using substitutes consisting in whole or 

in part of a class I or class II ozonedepleting substance (ODS). 

DATES: This final rule is effective on 

March 14, 2005. 

ADDRESSES: Materials related to this 

rulemaking are contained in EPA Office 

of Air and Radiation (OAR) Docket 

OAR–2003–0167. Docket OAR–2003– 

0167 is the electronic version of the 

legacy OAR Docket No. A–92–01. All 

documents in the docket are listed in 

the docket index. Although listed in the 

index, some information is not publicly 

available, i.e., confidential business 

information (CBI) or other information 

whose disclosure is restricted by statute. 

Publicly available docket materials are 

available in hard copy at the OAR 

Docket at Room B108, 1301 Constitution 

Ave., NW.; Washington, DC, 20460. This 

Docket Facility is open from 8 a.m. to 

5:30 p.m., Monday through Friday, 

excluding legal holidays. The Docket 

telephone number is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: 

Information concerning this rulemaking 

should be forwarded to Julius Banks; 

U.S. Environmental Protection Agency; 

Global Programs Division-Stratospheric 

Program Implementation Branch; Mail 

Code 6205–J; 1200 Pennsylvania 

Avenue, NW.; Washington, DC 20460. 

The Stratospheric Ozone Information 

Hotline (800–296–1996) and the Ozone 

Web page, http://www.epa.gov/ozone, 

can also be reached for further 

information. 

SUPPLEMENTARY INFORMATION: The 

contents of this action’s preamble are 

listed in the following outline: 

I. General Information 

A. Does This Action Apply to Me? 

B. How Can I Get Copies of Related 

Information? 


1. Docket 

2. Electronic Access 

II. Overview 

A. Section 608 of the Clean Air Act 

B. Notice of Proposed Rulemaking (NPRM) 

Regarding Recycling of Substitutes for 

CFC and HCFC Refrigerants 

III. Final Rule 

A. Overview 

B. Definitions 

1. Full Charge 

2. Leak Rate 

a. Comments on Option 1—Use of 

Annualizing Method 


b. Comments on Option 2—Use of EPA’s 

Rolling Average Method 

c. Comments on Option 3—Use of the 

Method Yielding the Highest Leak Rate 

d. Comments on Option 4—Owners or 

Operators Leak Rate Method of Choice 

C. Required Practices for Leak Repair 

1. Comfort Cooling Appliances 

2. Commercial Refrigeration 

3. Industrial Process Refrigeration (IPR) 

4. Cross-sector Issues 

5. Extension of Leak Repair Requirements 

to HFC and PFC Appliances 

6. Clarification of Leak Repair 

Requirements 


a. Scenario 1 

b. Scenario 2 

c. Scenario 3 

d. Scenario 4 

e. Scenario 5 

D. Recordkeeping for Leak Repair 

1. Applicability to Substitutes 

a. General Service and Repair 

Recordkeeping and Reporting 


b. Extension of 30-day Repair Requirement 

c. Notification Due to Failed Verification 

Test 

d. Relief From the Obligation To Retrofit or 

Replace an Appliance 

e. Relief From 30-day Repair Requirement 

Due to Adoption of Retrofit/Retirement 

Plan 

f. Additional Time for Retirement or 

Retrofit 


g. Omission of Purged Refrigerant From 

Leak Rate Calculations 

2. Retrofit/Retire Using Lower OzoneDepleting Potential (ODP) Refrigerants 

3. Minor Clarifications

IV. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 


B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

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 & 

Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer 

Advancement Act 


J. The Congressional Review Act

I. General Information 

A. Does This Action Apply to Me? 

Entities potentially regulated by this 

action include those who own, operate, 

maintain, service, or repair comfort 

cooling, commercial refrigeration, and 

industrial process refrigeration 

appliances. Regulated entities include: 

Category Examples of regulated entities 

Industry ........................................... Technicians who service, maintain, repair, air-conditioning and refrigeration equipment. 

Owners and operators of comfort cooling, commercial refrigeration, and industrial process refrigeration 

equipment. 

This table is not intended to be regulated and potentially affected by To determine whether your company is 

exhaustive, but rather provides a guide this action. Other types of entities not regulated by this action, you should 

for readers regarding entities likely to be listed in the table could also be affected. carefully examine the applicability 

Federal Register / Vol. 70, No. 7 / Tuesday, January 11, 2005 / Rules and Regulations 1973 

criteria contained in section 608 of the 

CAA Amendments of 1990. The 

applicability criteria are discussed 

below and in regulations published on 

December 30, 1993 (58 FR 69638). If you 

have questions regarding the 

applicability of this action to a 

particular entity, consult the person 

listed in the preceding FOR FURTHER 

INFORMATION CONTACT section. 

B. How Can I Get Copies of Related 

Information? 

1. Docket 

EPA has established an official public 

docket for this action at OAR Docket ID 

No. OAR–2003–0167. The official 

public docket consists of the documents 

specifically referenced in this action 

and other information related to this 

action. Hard copies of documents 

related to previous refrigerant recycling 

and emissions reduction rulemakings 

and other actions may be found in 

legacy EPA Air Docket ID No. A–92–01. 

The public docket does not include 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. The public docket 

is available for viewing at the Air and 

Radiation Docket in the EPA Docket 

Center, (EPA/DC) EPA West, Room 

B102, 1301 Constitution Ave., NW., 

Washington, DC. The EPA Docket 

Center Public Reading Room is open 

from 8:30 a.m. to 4:30 p.m., Monday 

through Friday, excluding legal 

holidays. The telephone number for the 

Air and Radiation Docket is (202) 566– 

1742. EPA may charge a reasonable fee 

for copying docket materials. 

2. Electronic Access 

An electronic version of the public 

docket is available through EPA’s 

electronic public docket and comment 

system, ‘‘EPA Dockets.’’ You may use 

EPA Dockets at http://www.epa.gov/ 

edocket to view public comments, 

access the index listing of the contents 

of the official public docket, and to 

access those documents in the public 

docket that are available electronically. 

Once in the system, select ‘‘search,’’ 

then key in the appropriate docket 

identification number. 

II. Overview 

Effective November 15, 1995, section 

608(c)(2) of the Act prohibits the 

knowing venting, release, or disposal of 

any substitute for CFC and HCFC 

refrigerants by any person maintaining, 

servicing, repairing, or disposing of airconditioning and refrigeration 

equipment. This prohibition applies 

unless EPA determines that such 

venting, releasing, or disposing does not 

pose a threat to the environment. 

On June 11, 1998, EPA proposed (63 

FR 32044) to strengthen the existing 

leak repair requirements for 

commercial, comfort cooling, and 

industrial process refrigeration (IPR) 

appliances containing CFCs and HCFCs. 

Tightening of the leak rates was 

proposed because EPA believed that 

manufacturer design changes have 

lowered achievable leak rates. EPA also 

proposed to extend the leak repair 

requirements to appliances using 

substitutes that the Agency did not 

propose to exempt from the statutory 

venting prohibition (i.e., 

hydrofluorocarbon (HFC) and 

perfluorocarbon (PFC) substitutes). 

Today’s final rule clarifies how the 

leak repair requirements apply to 

substitutes for class I and class II ODSs. 

Today’s final rule also extends the leak 

repair requirements to appliances 

containing HFC blends that contain an 

ODS. However, today’s rule does not 

finalize the proposals to tighten the 

existing leak repair trigger rates or 

extend the leak repair requirements to 

substitutes that do not contain an ODS. 

A. Section 608 of the Clean Air Act 

Section 608 of the CAA requires EPA 

to establish a comprehensive program to 

limit emissions of ozone-depleting 

refrigerants. Section 608 also prohibits 

the knowingly venting or otherwise 

knowingly release or disposal of ozonedepleting refrigerants and their 

substitutes during the maintenance, 

service, repair, or disposal of airconditioning and refrigeration 

appliances. 

Section 608 is divided into three 

subsections. In brief, the first, section 

608(a), requires EPA to promulgate 

regulations to reduce the use and 

emission of class I substances (i.e., 

CFCs, halons, carbon tetrachloride, and 

methyl chloroform) and class II 

substances (HCFCs) to the lowest 

achievable level, and to maximize the 

recycling of such substances. Second, 

section 608(b) requires that the 

regulations promulgated pursuant to 

subsection (a) contain requirements for 

the safe disposal of class I and class II 

substances. Finally, section 608(c) 

establishes self-effectuating prohibitions 

on the knowingly venting, release or 

disposal into the environment of any 

class I or class II substances, and 

eventually their substitutes, during 

servicing and disposal of airconditioning or refrigeration appliances. 

Section 608(a) provides EPA authority 

to promulgate the requirements in 

today’s rule. Section 608(a) requires 

EPA to promulgate regulations regarding 

use and disposal of class I and II 

substances to ‘‘reduce the use and 

emission of such substances to the 

lowest achievable level’’ and ‘‘maximize 

the recapture and recycling of such 

substances.’’ Section 608(a) further 

provides that ‘‘such regulations may 

include requirements to use alternative 

substances (including substances which 

are not class I or class II substances) 

* * * or to promote the use of safe 

alternatives pursuant to section [612] or 

any combination of the foregoing’’ 

EPA’s authority to promulgate 

regulations regarding use of class I and 

II substances (including requirements to 

use alternatives) is sufficiently broad to 

include requirements on how to use 

alternatives. 

Section 608(c) provides in paragraph 

(1) that, effective July 1, 1992, it is 

‘‘unlawful for any person, in the course 

of maintaining, servicing, repairing, or 

disposing of an appliance or industrial 

process refrigeration, to knowingly vent 

or otherwise knowingly release or 

dispose of any class I or class II 

substance used as a refrigerant in such 

appliance (or industrial process 

refrigeration) in a manner which 

permits such substance to enter the 

environment.’’ The statute exempts from 

this prohibition ‘‘[d]e minimis releases 

associated with good faith attempts to 

recapture and recycle or safely dispose’’ 

of a substance. To implement and 

enforce the venting prohibitions of this 

section, EPA through its regulations 

interprets releases to meet the criteria 

for exempted de minimis releases when 

they occur while the recycling and 

recovery requirements of sections 608 

and 609 regulations are followed 

(§ 82.154(a)). 

EPA is promulgating leak repair 

regulations to implement and clarify the 

requirements of section 608(c)(2), which 

extends the prohibition on venting to 

substitutes for CFC and HCFC 

refrigerants. These regulations also carry 

out its mandate under section 608(a) to 

minimize emissions of ozone-depleting 

substances to the lowest achievable 

level. 

B. Notice of Proposed Rulemaking 

(NPRM) Regarding Recycling of 

Substitutes for CFC and HCFC 

Refrigerants 

On June 11, 1998, EPA published an 

NPRM (63 FR 32044) outlining 

requirements for substitutes for CFC and 

HCFC refrigerants. In that notice, EPA 

proposed regulations under section 608 

of the Act to amend the leak repair 

requirements and reporting and 

recordkeeping requirements of 40 CFR 

part 82, subpart F (promulgated under 

section 608 of the Act). 

1974 Federal Register / Vol. 70, No. 7 / Tuesday, January 11, 2005 / Rules and Regulations 

In the NPRM, EPA proposed to extend 

the leak repair requirements for ozonedepleting CFC and HCFC refrigerants to 

substitutes including pure and blended 

HFC and PFC substitutes. The proposal 

would have required owners or 

operators of appliances with substitute 

refrigerant charges greater than 50 

pounds to repair leaks, and in some 

cases retrofit or replace appliances, 

when the applicable annual leak repair 

rate was exceeded. Based on 

improvements in equipment design and 

maintenance that have reduced leak 

rates, EPA also proposed to reduce the 

maximum allowable leak rates for 

appliances containing more than 50 

pounds of refrigerant. The proposal 

would have also extended the proposed 

lower leak rate to appliances using 

substitutes. 

The NPRM asked for public comment 

on the Agency’s proposals and on the 

rationale behind them. The Agency 

received 167 public comment letters 

(comments) in response to all aspects of 

the NPRM. In general, most commenters 

recognized the need for mandatory 

recovery of substitutes in order to help 

protect the ozone layer and to provide 

a source of refrigerant to service existing 

capital equipment after the phaseout of 

CFC and HCFC refrigerant production is 

complete. The majority of commenters 

believed that the proposed amendments 

would clarify the refrigerant regulations, 

but many expressed concerns over the 

regulation of refrigerants that do not 

deplete the ozone layer. 

Today’s final rule addresses the 

public comments received in response 

to the proposed rule as they relate to the 

leak repair requirements. Other aspects 

of the final rule, specifically, the 

applicability of the venting prohibition 

and the refrigerant sales restriction were 

addressed in a separate final rulemaking 

(69 FR 11946; March 12, 2004). The 

proposed requirements for the 

certification of refrigerant recovery/ 

recycling equipment will be addressed 

in a separate rulemaking. 

III. Final Rule 

A. Overview 

On March 12, 2004 (69 FR 11946), 

EPA published a final rule extending a 

number of the required practices at 

§ 82.156 to substitutes consisting of an 

ODS. These changes were intended to 

accommodate the growing number of 

refrigerants, including newer blended 

HFC/HCFC substitutes that are subject 

to the regulations because they consist 

of a class II ODS. Such changes 

included the adoption of evacuation 

requirements based solely on the 

saturation pressures of refrigerants, the 

requirement for service apertures on 

appliances, and mandatory certification 

of service technicians. 

In this rule, EPA did not finalize the 

proposal to extend all of the regulations 

concerning emissions reduction of CFC 

and HCFC refrigerants, at 40 CFR part 

82, subpart F, to pure HFC and PFC 

substitutes. The rule did not mandate 

any of the following proposed 

requirements from the NPRM: a sales 

restriction on HFC or PFC substitutes 

that do not consist of an ODS; specific 

evacuation levels for servicing 

appliances containing HFC or PFC 

substitutes that do not consist of an 

ODS; certification of recycling and 

recovery equipment intended for use 

with appliances containing HFC or PFC 

substitutes that do not consist of an 

ODS; certification of technicians who 

maintain, service, or repair appliances 

containing HFC or PFC substitutes that 

do not consist of an ODS; reclamation 

requirements for used HFC or PFC 

substitutes that do not consist of an 

ODS; certification of refrigerant 

reclaimers who reclaim only HFC or 

PFC substitutes that do not consist of an 

ODS; or leak repair requirements for 

appliances containing more than 50 

pounds of HFC or PFC substitutes that 

do not consist of an ODS. 

Today’s final rule amends the leak 

repair regulations at subpart F covering 

CFC and HCFC refrigerants, and extends 

these requirements to owners or 

operators of appliances containing 

substitutes that consist of a class I or 

class II ODS. EPA is finalizing the 

proposed amendments to the leak repair 

requirements at § 82.156(i), the 

associated recordkeeping provisions at 

§ 82.166(n) and (o), the definition of 

‘‘full charge’’ at § 82.152; and adding a 

definition for ‘‘leak rate’’ at § 82.152. 

EPA also describes compliance 

scenarios to address inquiries 

concerning whether or not leaks that 

occur after repairs have been completed 

and all applicable verification tests have 

been successfully performed are 

considered a new leak occurrence for 

the appliance. 

EPA is not finalizing the proposal to 

extend the leak repair requirements to 

owners or operators of appliances using 

HFC or PFC substitutes that do not 

contain a class I or class II ODS. The 

Agency is not finalizing the proposal (63 

FR 32066; June 11, 1998) to lower the 

permissible leak rates for airconditioning and refrigeration 

appliances containing more than 50 

pounds of an ODS refrigerant or to 

extend these requirements to appliances 

using HFC and PFC substitutes. 

B. Definitions 

1. Full Charge 

Compliance with the leak repair 

requirements requires calculating both 

the full charge of the appliance and the 

leak rate. EPA has previously defined 

full charge at § 82.152 as the amount of 

refrigerant required for normal operating 

characteristics and conditions of the 

appliance as determined by using one or 

a combination of the four methods 

specified at § 82.152. In the NPRM, EPA 

proposed to eliminate the phrase ‘‘for 

the purposes of § 82.156(i)’’ and the 

word ‘‘all’’ from paragraph (2) in the 

definition of full charge at § 82.152. 

EPA did not receive any comments 

concerning the removal of the phrase 

‘‘for the purposes of § 82.156(i)’’ and the 

word ‘‘all’’ from paragraph (2) in the 

definition of full charge at § 82.152. EPA 

did receive comments on the definition 

of ‘‘full charge’’ that were outside of the 

scope of the proposed changes. 

EPA received no adverse comments to 

the proposed editorial change; therefore, 

EPA is finalizing the proposal to 

eliminate the phrase ‘‘for the purposes 

of § 82.156(i)’’ and the word ‘‘all’’ from 

paragraph (2) in the definition of full 

charge at § 82.152, because the term and 

the phrase are implicit in that language. 

EPA believes that these changes will 

improve the readability of the provision 

by eliminating redundancy. 

The NPRM did not propose to alter 

the means by which the owner or 

operator could determine the full charge 

of the appliance. The edits were 

proposed to add clarity to the definition 

without changing the means by which 

‘‘full charge’’ can be determined. 

Owners or operators of appliances are 

still required to use one or a 

combination of the four methods to 

determine the full charge of appliances. 

Full charge means the amount of 

refrigerant required for normal operating 

characteristics and conditions of the 

appliance as determined by using one of 

the following four methods or a 

combination of one of the following four 

methods: 

(1) The equipment manufacturers’ 

determination of the correct full charge 

for the equipment; 

(2) Determining the full charge by 

appropriate calculations based on 

component sizes, density of refrigerant, 

volume of piping, and all other relevant 

considerations; 

(3) The use of actual measurements of 

the amount of refrigerant added or 

evacuated from the appliance; and/or 

(4) The use of an established range 

based on the best available data, 

regarding the normal operating 

characteristics and conditions for the 

ER11JA05.008</MATH> ER11JA05.009</MATH>

Federal Register / Vol. 70, No. 7 / Tuesday, January 11, 2005 / Rules and Regulations 1975 

appliance, where the midpoint of the calculating leak rates in order to comply the appliance in accordance with the 

range will serve as the full charge, and with the leak repair requirements requirements of § 82.156(i). 

where records are maintained in contained in § 82.156(i). The Compliance Guidance 

accordance with § 82.166(q). EPA and the Chemical Manufacturers’ specifically mentions two methods for 

Hence EPA has provided flexibility in Association (CMA) jointly issued a calculating leak rates. The first method 

determining the full charge for compliance guide for leak repair in is referred to as the ‘‘annualizing 

appliances under ‘‘normal operating October 1995. That guide, known as the method,’’ because it takes the quantity 

characteristics.’’ The onus is on the of refrigerant (percentage of charge) lost 

owner or operator of the appliance to Compliance Guidance for Industrial between charges and scales it up or 

determine the full charge by using one Process Refrigeration Leak Repair down to calculate the quantity that 

or a combination of the four methods Regulations Under Section 608 of the would be lost over a year-long period. 

listed in the definition of full charge at Clean Air Act (Compliance Guidance), This method is described in the 

§ 82.152. The leak rate then determines includes a section on calculating leak Compliance Guidance as follows: 

what actions are required by the rates. The Compliance Guidance states (1) Take the number of pounds of 

appliance owner or operator in order to that each time the owner or operator refrigerant added to the appliance to 

remain in compliance with the leak adds refrigerant to an appliance return it to a full charge and divide it 

repair requirements of § 82.156. normally containing 50 pounds or more by the number of pounds of refrigerant of refrigerant, the owner or operator that the appliance normally contains at 2. Leak Rate should promptly calculate the leak rate full charge; 

EPA has not previously promulgated to ensure that the appliance is not (2) take the number of days that have 

a formal definition for leak rate. In the leaking at a rate that exceeds the passed since the last day refrigerant was 

NPRM, EPA proposed to define leak rate applicable allowable leak rate. If the added and divide by 365 days; 

for the purposes of applying leak repair amount of refrigerant added indicates (3) take the number calculated in step 

requirements in § 82.156(i) for industrial that the leak rate for the appliance is (1) and divide it by the number 

process refrigeration, comfort cooling above the applicable allowable leak rate, calculated in step (2); and 

and commercial appliances. EPA the owner or operator must perform (4) multiply the number calculated in 

proposed to add a definition in the corrective action by repairing leaks, step (3) by 100 to calculate a percentage. 

regulations for clarity, and to address such that appliances do not continue to EPA’s section 608 annualizing 

some of the issues raised by the leak above the applicable leak rate, method is summarized in the following 

regulated community concerning retrofitting the appliance, or retiring 1 formula: 

Leak rate = pounds of refrigerant added 365 days/year 

(% per year) × 100% pounds of refrigerant × shorter of: # days since 

in full charge refrigerant last added or 365 days 

The second method for calculating (1) Taking the sum of the quantity of the appliance normally contains at full 

leak rates discussed in the Compliance refrigerant added to the appliance over charge; and 

Guidance is the ‘‘rolling average’’ the previous 365-day period (or over the (3) multiplying the result of step two method. The term ‘‘rolling average’’ is period that has passed since leaks in the by 100 to obtain a percentage. not defined in the Compliance appliance were last repaired, if that 

Guidance, but EPA proposed (63 FR period is less than one year); EPA’s section 608 rolling average 

32057) to calculate it by: (2) dividing the result of step one by method is summarized in the following 

the quantity (e.g., pounds) of refrigerant formula: 

pounds of refrigerant added over past 365 days 

(or since leaks were last repaired, 

Leak rate = if that period is less than one year) 

(% per year) pounds of refrigerant in full charge 

× 100% 

In the NPRM, EPA considered four was to allow appliance owners or a. Comments on Option 1—Use of 

options for the formal definition of operators to use either method of their Annualizing Method 

‘‘leak rate.’’ The first option was to choosing provided the same method is The first proposed option requiring require appliance owners or operators to used consistently for all appliances owners or operators to exclusively use calculate leak rates using only the located at the facility. Discussion of the the annualizing method received ‘‘annualizing’’ method. The second comments and EPA’s decision on these support from commenters, but with proposed method was to exclusively use options are detailed below. some concern. Commenters generally 

EPA’s Rolling Average Method. The expressed a comfort level with the 

third proposed method was to use annualizing method, and consistently 

whichever method yielding the highest noted its acceptance by CMA and EPA. 

leak rate. The forth proposed method However, several commenters expressed 

1 EPA considers retirement of an appliance as an 

action to permanently remove the appliance from 

operation. 

1976 Federal Register / Vol. 70, No. 7 / Tuesday, January 11, 2005 / Rules and Regulations 

concern over the projection of the leak 

rate over a 12-month period. A trade 

group representing the commercial food 

sector expressed concern that the 

proposed leak rate definition generates 

a total representing an amount that 

would have been lost per 12-month 

period had the leak(s) not been repaired 

rather than the amount of refrigerant 

actually released in each instance prior 

to repair. 

The proposed annualizing method 

does include the actual amount of 

refrigerant added to the appliance in its 

calculation of the leak rate, but projects 

or ‘‘annualizes’’ the leak rate by 

considering the amount of time that has 

passed between refrigerant charges. EPA 

understands commenters’ concerns. For 

instances where owners or operators 

have leaking appliances that continue to 

require addition of refrigerant, the 

annualizing method may result in a 

higher leak rate than other possible 

calculations that fail to annualize over 

a 12-month period, by looking at the 

leak as a one time event and a simple 

ratio of refrigerant added versus the full 

charge. Taking such an approach would 

allow for continued patterns of repair 

attempts followed by refrigerant 

recharge and subsequent release. Such a 

pattern is not viewed by EPA as 

advantageous to the environment since 

the total amount of refrigerant release is 

compounded over time. The leak repair 

amendments are aimed at preventing 

such patterns and requiring owners or 

operators to sufficiently repair or 

replace/retrofit appliances that cannot 

be sufficiently repaired. 

EPA believes that the first method 

(i.e., exclusive use of the annualizing 

method) has the advantage of being 

relatively simple and familiar. As a 

result of the compliance guidance, EPA 

believes that many owners or operators 

are familiar with the method and have 

incorporated the methodology into their 

manual and computerized refrigerant 

tracking systems and standard operating 

procedures dealing with repair of 

refrigerant leaks. However, EPA believes 

that the preferred approach is to provide 

appliance owners or operators with 

greater flexibility in calculating the 

‘‘leak rate.’’ Hence EPA is not 

mandating exclusive use of the 

annualizing method in defining the leak 

rate. 

b. Comments on Option 2—Use of EPA’s 

Rolling Average Method 

Commenters were generally opposed 

to the second proposed option that 

requires owners or operators to calculate 

leak rates using only the ‘‘rolling 

average’’ method, because they believed 

it resulted in elevated leak rates when 

compared to calculating the leak rate 

with the annualizing method. 

Commenters stated that under this 

method owners of such appliances may 

be required to repair an appliance that 

has actual leak rates below accepted 

limits. As examples, commenters 

cautioned: (1) That the proposed 

formula would artificially elevate the 

leak rates on appliances with large 

reserve capacity; and (2) that if the 

number of days since refrigerant was 

last added to the system is more than 

365 days, the percent leak rate is 

artificially elevated, and may require a 

system to be repaired when there may 

be no substantial leak. An additional 

commenter noted that while the 

compliance guidance mentions the 

‘‘rolling average’’ method, it was not 

defined until the NPRM proposed a 

definition which may have caused some 

inconsistency between industry practice 

and the proposed definition. 

Several commenters expressed 

concern over the Agency’s use of 365 

days in the proposed option to include 

the rolling average method in the 

definition of leak rate. Commenters 

stated their interpretation that in order 

for the rolling average method to work, 

the last time refrigerant was added to a 

system has to be less than 365 days. 

They also stated that in order to 

calculate a true leak rate the operator 

must know both how much refrigerant 

was lost and over what period of time 

that loss occurred. One commenter 

stated that the time period must always 

equal the interval between the 

realization of a leak and the last time 

refrigerant was added in order to restore 

the system to its normal operating 

charge, thus making the number 365 

useless. Several commenters objected to 

the rolling average method based on 

their understanding that the calculation 

assumes that all leaks have occurred 

within the past 365 days. The 

commenters stated that leak repairs 

occur whenever operators find them, 

not on a set schedule (e.g., every 365 

days). Commenters also stated that 

appliances with large reserve capacities 

could be negatively impacted since the 

full charge may not coincide with the 

operating charge. 

EPA believes that the second method 

(i.e., exclusive use of the rolling average 

method) is relatively simple and catches 

certain leaks (such as the sudden fast 

leak described in the previous 

paragraph) more quickly than the 

annualizing method. The disadvantage 

of the rolling average method is that it 

permits owners or operators to delay 

repair of certain types of leaks longer 

than the annualizing method and may 

not show that appliances are leaking 

until they have lost a relatively large 

percentage of charge; however, EPA 

does not find that this method 

artificially inflates leak rates for 

appliances with large reserve capacities. 

Appliance owners or operators have 

four options to determine the full charge 

and have opportunity to take reserve 

amounts under consideration when 

determining the full charge. 

EPA is not requiring owners or 

operators to determine the amount of 

refrigerant that has leaked from the 

appliance since the last repair, but the 

owner or operator must determine how 

much refrigerant has been added to the 

system within the past 12-month period 

or the number of days since refrigerant 

was last added in order to calculate the 

leak rate using the rolling average 

method. The time period of 365 days is 

meant to cover all additions of 

refrigerant to the appliance over a 

consecutive 12-month period, and does 

not imply that leaks only occur once per 

year or on any particular schedule. EPA 

is aware that many owners or operators 

repair appliances as soon as they realize 

that the appliance is not functioning 

properly; however, the goal of the leak 

repair requirements is to require owners 

or operators to take action on chronic 

leakers that require repair on a frequent 

basis. The 365-day time frame has 

significance, because it ‘‘annualizes’’ the 

leak rate of the appliance over a 

consecutive 12-month period, and 

requires operators and owners or 

operators to take action to repair, 

retrofit, or replace leaking appliances. 

In the NPRM, EPA noted that the 

second option was not preferable but 

wished to provide notice and comment 

on the proposed options for the 

definition of ‘‘leak rate.’’ Based in part 

upon comments received, and the 

Agency’s desire to provide more 

flexibility to owners or operators in 

determining leak rates, EPA has decided 

to not finalize the second option 

requiring exclusive use of the ‘‘rolling 

average’’ in calculating the leak rate. 

c. Comments on Option 3—Use of the 

Method Yielding the Highest Leak Rate 

EPA noted in the NPRM (63 FR 

32058) that the third option, requiring 

use of whichever method yields the 

higher calculated leak rate, was its 

preferred option. This option is a more 

complicated approach (both for 

compliance and enforcement) than 

requiring the use of either method 

alone, but ensures that leaks are caught 

and addressed as quickly as possible. 

Commenters were generally opposed 

to the proposed third option of 

calculating leak rates by whichever 

method yielded a higher leak rate, 

Federal Register / Vol. 70, No. 7 / Tuesday, January 11, 2005 / Rules and Regulations 1977 

because it would be more burdensome 

on equipment owners or operators and 

EPA enforcement personnel because it 

requires facilities to calculate leak rates 

using both methods and maintain 

supporting documentation for both. 

Several commenters felt that if EPA 

were to finalize this option, that the 

Agency should provide multiple 

formula choices, thereby making the 

regulation more workable for business 

while allowing the Agency to meet its 

objective of reducing leaks. 

EPA is not finalizing the third 

proposed method for calculating the 

annual leak rate. EPA believes that the 

third proposed method does not provide 

a level of flexibility that is warranted for 

diverse appliances used in the 

commercial and IPR sectors. EPA has 

reconsidered the possible burden placed 

upon owners or operators who would be 

required to calculate leak rates using 

both methods and maintain records on 

both of the methods used to calculate 

leak rates. The enforcement of such a 

requirement would also be more 

difficult as EPA enforcement personnel 

would have to review multiple leak 

repair methods for different appliances 

located at the same facility. Therefore, 

EPA is not finalizing the third proposed 

method for calculating the annual leak 

rate. However, EPA is not opposed to 

considering additional methodologies 

for calculating or defining the leak rate, 

and may propose alternative 

methodologies in future rulemakings. 

d. Comments on Option 4—Owners or 

Operators Leak Rate Method of Choice 

The fourth option proposed to permit 

owners or operators to calculate leak 

rates using either method, so long as the 

same method is always used for the 

same appliance, facility, or firm. While 

the majority of commenters preferred 

the fourth option over the other three 

options, a few commenters objected to 

the specification of a method for 

calculating annual leak rates and argued 

that the Agency’s method for calculating 

leak rates should be revised to allow 

owners and operators of the equipment 

to use any method that is technically 

sound and consistently used for 

determining annual leak rates. The 

commenter noted that this would 

address situations where the EPA/CMA 

methods do not permit the accurate 

determination of leak rates. One 

commenter believed that the Agency 

should provide two or three formula 

choices, which would make the 

regulation more workable for business 

and allow the Agency to meet its 

objective of reducing leaks. The 

commenter stated that appliance owners 

and operators have economic and 

quality control incentives to monitor 

and control leaks and should be 

afforded maximum flexibility in 

calculating leak rates to ease and 

facilitate compliance. Another 

commenter noted that if employed, this 

method should not require use of the 

same method beyond the site or facility, 

since such a requirement could lead to 

the disruption of established programs. 

EPA did not propose additional 

methods of calculating the leak rate for 

incorporation into the proposed 

definition at § 82.152. EPA emphasizes 

that the onus is on the owner or 

operator of the appliance to determine 

the leak rate (as defined at § 82.152) 

upon addition of refrigerant. If they fail 

to do so, owners or operators would 

have no way of knowing what actions 

are required to remain in compliance 

with the leak repair requirements. 

EPA finds that while permitting 

appliance owners or operators to select 

either of the two methods of their choice 

to calculate the leak rate is somewhat 

more complicated, but could be easier 

for owners or operators to comply with 

if they have more experience with one 

method than the other. Both the 

annualizing and rolling average 

methods eventually catch all leaks 

above the maximum allowable rate. 

Because appliance owners or operators 

using the rolling average method would 

be doing so at their discretion, this 

approach neutralizes any equity 

concerns associated with that method. 

EPA believes that this option provides 

flexibility to owners or operators of 

appliances and permits them to choose 

whichever method they prefer. 

Furthermore, this option addresses any 

concerns about ambiguity or 

inconsistencies concerning the 

inclusion of the term ‘‘rolling average’’ 

in the definition of leak repair and 

owners or operators are likely to have 

more experience with one method than 

the other. Both the annualizing and the 

EPA’s rolling average methods catch all 

leaks above the maximum allowable 

rates. While EPA prefers the use of the 

annualizing method, this fourth option 

allows owners and operators to use the 

method of their choice and neutralizes 

any equity concerns associated with 

either method. 

Therefore, with this action, EPA is 

defining leak rate using the fourth 

option which allows appliance owners 

or operators to use either of the two 

methods of their choice, provided the 

option chosen is used consistently for 

calculating leak rates for the lifetime of 

all appliances located at an operating 

facility that are subject to the leak repair 

requirements. EPA is also requiring the 

owner or operator to promptly calculate 

the leak rate each time an owner or 

operator adds refrigerant to a system 

normally containing more than 50 

pounds of refrigerant. 

C. Required Practices for Leak Repair 

In the NPRM, EPA proposed to lower 

the permissible leak rates for some airconditioning and refrigeration 

appliances containing more than 50 

pounds of CFC and HCFC refrigerant. 

EPA also proposed to extend the leak 

repair requirements (as they would be 

amended) to air-conditioning and 

refrigeration appliances containing more 

than 50 pounds of HFC and PFC 

substitutes. 

EPA proposed to lower the 

permissible annual leak rate for new 

commercial refrigeration appliances to 

10 percent of the charge per year, the 

permissible annual leak rate for older 

commercial refrigeration appliances to 

15 percent per year, the permissible 

annual leak rate for some IPR appliances 

to 20 percent of the charge per year, the 

permissible annual leak rate for other 

new appliances (e.g., comfort cooling 

chillers) to 5 percent of the charge per 

year, and the permissible annual leak 

rate for other existing comfort cooling 

appliances to 10 percent of the charge 

per year. 

1. Comfort Cooling Appliances 

EPA proposed to lower the leak rates 

based on indications from appliance 

manufacturers that reductions in leak 

rates have been most dramatic in 

comfort cooling chillers, where leak 

rates have been lowered from between 

10 and 15 percent per year to less than 

5 percent per year in many cases. In the 

NPRM, EPA noted that based on 

information provided by equipment 

manufacturers that design changes and 

leak detection technologies warranted 

the proposal to lower leak rates. EPA 

referenced several design changes, such 

as installation of high-efficiency purge 

devices on low-pressure chillers, the 

installation of microprocessor-based 

monitoring systems that can alert 

system operators to warning signs of 

leakage (such as excessive purge run 

time), the use of leak-tight brazed rather 

than leak-prone flared connections, and 

the use of isolation valves, which permit 

technicians to make repairs without 

evacuating and opening the entire 

refrigerant circuit. In addition, EPA 

noted that the reported leak rates for 

new chillers all fall below 5 percent 

with the exception of the open-drive 

type of high pressure chiller which has 

reported leak rates between 4 and 7 

percent. EPA requested comment on 

whether EPA should set a larger leak 

rate for this type of chiller. 

1978 Federal Register / Vol. 70, No. 7 / Tuesday, January 11, 2005 / Rules and Regulations 

The majority of commenters were 

opposed to any effort to tighten the 

existing leak rates for comfort cooling 

appliances. Several commenters 

supported lower permissible leak rates 

for comfort cooling appliances 

containing more than 50 pounds of 

refrigerant, but only to a 20–25%. 

Several commenters opposed applying 

more stringent leak repair rates to older 

appliances, noting that the proposed 

leak rates (63 FR 32066) would be 

feasible only for some primary systems 

associated with secondary fluid systems 

and would not be feasible for most 

comfort cooling appliances. Another 

commenter claimed that the Agency 

failed to provide any facts to support a 

finding that the regulated community 

could locate and detect the small leaks. 

The commenter felt that at a permissible 

leak rate of 5 percent, small and perhaps 

undetectable leaks would become 

significant since they may result in an 

appliance leaking above the proposed 5 

percent leak rate. 

Some commenters requested that the 

Agency consult with appliance owners 

or operators to determine if their 

experiences confirm original equipment 

manufacturers’ claims on the leak 

tightness of newer refrigeration and airconditioning systems before finalizing 

tighter leak rates that may not be 

practical. The commenter suggested that 

separate leak rate criteria be created for 

new site-assembled refrigeration units 

and chillers versus such equipment 

assembled in factories. 

Several commenters stated that more 

stringent rates for older appliances 

would cause financial and operational 

burdens on owners or operators, 

partially because many older systems 

were not designed to accommodate 

devices that reduce emission losses to 

the proposed level. Specifically, 

medium and high-pressure appliances 

for which retrofit high-efficiency purge 

systems are not available were of 

particular concern. One commenter 

suggested that lowering the permissible 

leak rate for newer comfort cooling units 

to 5 percent goes beyond the ‘‘lowest 

achievable level’’ of emissions 

reductions required by § 608(a)(3)(A). 

The commenter pointed out that as 

these new units age, their leak rates will 

inherently increase. 

In response to comments EPA notes 

that the intent of the leak repair 

regulations is to require owners or 

operators to maintain appliances over 

their life-span. EPA recognizes that 

these appliances may leak with greater 

frequency as they age. By promulgating 

these regulations, EPA intends to 

minimize refrigerant releases by 

requiring owners or operators to take 

actions to maintain appliances as they 

age or retire or replace inherently 

leaking appliances. Replacement of 

leaking appliances has the benefit of use 

of newer appliances that in general tend 

to have lower refrigerant charges and 

fewer leak occurrences. These efforts 

insure that refrigerant emissions are 

minimized to the lowest achievable 

level, in accordance with section 608 of 

the Clean Air Act. 

EPA believes that additional data on 

historical repair trends and leak 

tightness of comfort cooling appliances 

are warranted prior to lowering the leak 

rates. EPA intends to initiate efforts to 

gather data on the availability and 

effectiveness of current leak detection 

methods and equipment prior to 

amending the leak repair trigger rates. 

Therefore, as a part of today’s action, 

EPA is not finalizing the proposal to 

lower the permissible leak rates for 

comfort cooling appliances containing 

more than 50 pounds of refrigerant to 5 

and 10 percent of the charge per year for 

new and existing appliances, 

respectively. 

2. Commercial Refrigeration 

In the NPRM, EPA proposed that the 

maximum permissible leak rate for new 

commercial refrigeration equipment 

(commissioned after 1992) be lowered to 

10 percent per year, and that the 

maximum rate for old commercial 

refrigeration equipment (commissioned 

in or before 1992) be lowered to 15 

percent per year. 

EPA based the proposal to lower the 

leak rate in part on a study sponsored 

by EPA’s Office of Research and 

Development (ORD). The ORD study 

analyzed two detailed bodies of data on 

leakage from commercial refrigeration 

equipment, one collected by a 

Midwestern chain of 110 stores and the 

other gathered by the South Coast Air 

Quality Management District 

(SCAQMD), which requires monitoring 

and reporting of leak rates from large 

refrigeration systems. The Midwestern 

chain achieved an average leak rate of 

15 percent by establishing written 

procedures for equipment installation 

(including a requirement for brazed or 

‘‘sweated’’ expansion valves), a 

refrigerant monitoring system, and an 

equipment inspection protocol. This 

rate was achieved in 1992, before EPA’s 

leak repair requirements were even in 

effect. The data collected by SCAQMD 

was based upon 440 recharging and leak 

testing events from 56 different stores 

representing 20 different businesses. 

The average leak rate achieved by the 

stores was eight (8) percent of the total 

charge. 

The ORD report also investigated the 

cost-effectiveness of different strategies 

and technologies for reducing leak rates, 

finding that many of these approaches 

could lower leak rates significantly and 

thereby pay for themselves. The report 

indicated that by using a combination of 

these approaches, a number of chains 

had significantly reduced both overall 

refrigerant consumption and leakage 

from equipment over the previous two 

to eight years. Some of the most 

effective approaches included vibration 

elimination devices, use of high-quality 

brazed rather than mechanical 

connections, low emission condensers, 

stationary leakage monitors, refrigerant 

tracking and improved preventive 

maintenance. A few of the approaches, 

such as installation of low-emission 

condensers, were more applicable to 

new than to existing appliances; 

however, many of the approaches, such 

as refrigerant monitors, refrigerant 

tracking systems, and improved 

preventive maintenance, were 

applicable to both existing and new 

appliances. According to the report, 

these approaches were individually 

expected to reduce leak rates from 

appliances by between 5 and 40 percent 

of the charge per year. 

EPA requested comment on the 

proposed rates, and whether the 

relatively low leak rates observed in 

new equipment are likely to persist 

throughout its lifetime, or whether those 

rates are likely to rise over its lifetime 

to approach the current leak rates of 

older equipment. EPA also requested 

comment on whether higher or lower 

rates might be appropriate for different 

types of commercial refrigeration 

equipment, given that compressor rack 

systems, single compressor systems, and 

self-contained units may have 

significantly different average leak rates. 

Finally, EPA requested comment on 

whether significant percentages (e.g., 10 

percent or more) of the various types of 

commercial refrigeration equipment 

may be able to comply with leak rates 

of 10 or 15 percent without being totally 

replaced, and, if this is the case, 

whether permissible leak rates of 15 and 

20 percent might be more achievable. 

In general, commenters were opposed 

to the proposed reduction in the 

maximum permissible leak rate for 

commercial refrigeration appliances. 

Commenters were concerned that the 

two studies used to set the new leak 

rates for commercial refrigeration units 

with charges greater than 50 pounds 

excluded small businesses and ignored 

the differences between new and old 

equipment. One commenter stated that 

the two studies cited by the Agency do 

not show that all refrigeration systems 

Federal Register / Vol. 70, No. 7 / Tuesday, January 11, 2005 / Rules and Regulations 1979 

can achieve the proposed leak rates, nor 

do they show that any regulatory 

requirements are needed. The 

commenter noted that the study did not 

comprise a statistically significant 

sample, and the information from these 

studies would apply to only a limited 

subset of existing and future 

refrigeration systems. Another 

commenter stated that the case studies 

referenced in the study summarize 

anecdotal and limited data by 

concentrating on best management 

practices to reduce maintenance costs 

instead of the ability for grocers to 

adhere to the proposed lower leak rates. 

The commenter stated that the NPRM 

would also have negative financial 

implications upon small independent 

grocers. 

Commenters stated that, leaks occur at 

seals and O-rings and are the result of 

normal wear, tear, stress, and vibration. 

The commenter noted that due to the 

nature of the commercial sector that 

grocers become aware of such leaks 

almost immediately because the 

equipment owner faces the cost of 

replacing lost refrigerant and the loss of 

perishable goods. Commenters also 

stated that depending on store design, 

leak detection can be costly, difficult, 

and sometimes labor intensive. 

Commenters stated that EPA should not 

attempt to dictate the type of 

commercial appliance used (e.g., opendrive compressors or direct expansion 

systems rather than hermetic 

compressors and secondary loop 

systems) in order to justify lowering the 

leak rates. 

EPA received comment that 

tightening of leak rates for the 

commercial sector would negatively 

impact small independent grocers. 

Commenters noted that the life 

expectancy of a refrigerant case is 

typically 20–25 years and argued that 

the rule will require many independent 

grocers to purchase new commercial 

refrigeration equipment to lower their 

annual leak rates to comply with the 

new requirements. A commenter 

explained that for those grocers still 

legally using older CFC-based 

equipment, that it may be impossible to 

attain a 10 or 15 percent leak rate. The 

only viable options would be for the 

grocers to either close or purchase new 

equipment. 

EPA acknowledges that neither of the 

studies differentiated between new and 

old appliances. The cited studies 

include in their analyses commercial 

refrigeration appliances that are 

commonly available in the commercial 

sector. EPA does not believe that the 

type of appliance available and covered 

under the leak repair regulations differs 

depending on the classification of the 

business owner as an independent 

grocer. According to commenters, 

smaller independent grocers may rely 

on older appliances, but EPA does not 

find a persuasive rationale to allow 

older appliances to continue to leak at 

high rates because they are aging. EPA 

agrees that owners or operators of 

commercial refrigeration appliances 

have an economic incentive to repair 

leaks as soon as they are discovered. 

However, EPA finds that continued 

patterns of repair attempts followed by 

refrigerant recharges are not optimal for 

environmental protection. This is 

especially true for appliances that may 

be described as ‘‘chronic leakers.’’ The 

intent of the leak repair regulations is to 

require owners or operators to 

sufficiently repair appliances (especially 

as appliances age) so that they will not 

develop a history of leak events, or 

retrofit or replace appliances that cannot 

be sufficiently repaired. EPA is not 

mandating the use of any specific leak 

detection equipment, but believes that 

the use of detection equipment is one 

means of preventing loses resulting in 

extensive repair and use of ozonedepleting refrigerants, in both older and 

newer appliances. 

EPA believes that additional data on 

historical repair trends and leak 

tightness of commercial refrigeration 

appliances is warranted prior to 

lowering the leak rates. EPA intends to 

initiate efforts and seek cooperation 

from organizations representing the 

commercial refrigeration sector to gather 

data on the availability and 

effectiveness of current leak detection 

methods and equipment prior to 

amending the leak repair trigger rates. 

Therefore, as a part of today’s action, 

EPA is not finalizing the proposal to 

lower the permissible leak rates for 

commercial appliances containing more 

than 50 pounds of refrigerant. 

Since EPA is not finalizing a lowering 

of the leak rate, there is no need to 

finalize the proposal of a two-tier leak 

rate based upon the date of 

manufacture, compressor configuration, 

and possession (or lack) of a secondary 

loop in determining maximum 

allowable leak rates. The Agency may 

address the proposal to lower the 

applicable leak repair trigger rates by 

reproposing, in a future NPRM, a lower 

leak rate for commercial refrigeration 

appliances. 

3. Industrial Process Refrigeration (IPR) 

The conditions that contribute to a 

wide range of leak rates in the 

commercial refrigeration sector apply 

even more to the industrial process 

refrigeration sector. Appliances in the 

industrial process refrigeration sector 

are not only assembled on-site, but are 

often custom-designed for a wide 

spectrum of processes and plants, giving 

the sector an extraordinarily broad range 

of appliance configurations and designs. 

Appliances may be high-or lowpressure; may possess hermetic, semihermetic, or open-drive compressors; 

may use one (primary) or two (primary 

and secondary) refrigerant loops; maybe 

brand new or decades old; and may 

range in charge size from a few hundred 

to more than 100,000 pounds of 

refrigerant. All of these factors are 

important in determining leak rates, 

leading to a wide range of attainable 

leak rates. 

In the NPRM, EPA stated that 

industrial process refrigeration 

equipment built more recently has 

generally been designed to leak less 

than equipment built earlier. Thus, EPA 

proposed to consider the date of 

manufacture, compressor configuration, 

and possession (or lack) of a secondary 

loop in determining maximum 

allowable leak rates for industrial 

process refrigeration appliances. The 

proposal did not include provisions for 

higher leak rates for appliances with 

very large charge sizes, because a given 

leak rate in large appliances causes 

more environmental harm than the same 

leak rate in small appliances. For 

example, a 20 percent annual leak rate 

in an appliance with a 10,000 pound 

charge would result in the release of 

2,000 pounds of refrigerant per year, 

while a 20 percent annual leak rate in 

an appliance with a 1,000 pound charge 

would result in the release of 200 

pounds of refrigerant per year. Although 

it may be more difficult or expensive to 

achieve a given leak rate in large 

appliances than in small appliances, 

EPA believed that these additional 

efforts were warranted by the larger 

environmental impact of leaks from 

large appliances. In view of these 

considerations, EPA proposed different 

maximum permissible leak rates based 

on the appliance’s date of manufacture, 

compressor configuration, and number 

of refrigerant loops (primary only vs. 

primary and secondary). 

Under the proposed approach, 

industrial process refrigeration 

appliances would have been subject to 

a 20 percent per year maximum 

permissible leak rate unless it met all 

four of the following criteria: 

(1) The refrigeration system is custombuilt; 

(2) The refrigeration system has an 

open-drive compressor; 

(3) The refrigeration system was built 

in 1992 or before; and 

1980 Federal Register / Vol. 70, No. 7 / Tuesday, January 11, 2005 / Rules and Regulations 

(4) The system is direct-expansion 

(contains a single, primary refrigerant 

loop). 

Systems that met conditions 1, 2, 3, 

and 4 would continue to be subject to 

the 35-percent-per-year maximum 

permissible leak rate. 

The Agency requested comment on 

the approach, both on the criteria used 

to sort appliances between the 20 

percent and 35 percent per year rates, 

and on the rates themselves. EPA 

specifically requested comment on 

whether it might be appropriate to 

permit a higher leak rate for appliances 

with a charge size above 10,000 pounds 

that were built before 1992. EPA also 

sought comment on whether it would be 

appropriate to use a measure other than 

charge size (such as pipe length) to 

characterize sprawling, inherently leaky 

appliances. 

In general commenters were opposed 

to any effort by EPA to lower leak rates 

for IPR appliances. Commenters noted 

that refrigeration operators have already 

lowered leak rates as much as possible 

due to the high cost of refrigerant, 

potential cost of lost productivity, 

maintenance costs, and efficiency. Most 

commenters based their objections on a 

lack of sufficient valid and 

representative data demonstrating that 

the lower rates can be achieved. The 

commenters expressed their belief that 

the Agency used references to new 

equipment as opposed to data from 

actual users to arrive at the proposed 

permissible leak rates. 

In addition, EPA requested comment 

on the interchangeability of equipment 

designs that may be more leak-tight than 

others. That is, the Agency wanted to 

know if there are compelling reasons 

why users of industrial process 

refrigeration must use open-drive 

compressors or direct expansion 

systems rather than hermetic 

compressors and secondary loops. 

EPA received comments stating that 

the Agency should not require 

retrofitting or rebuilding of older 

appliances that use open-drive 

compressors and/or have long primary 

refrigerant loops, because the cost 

associated with rebuilding a 

refrigeration system to use hermetic 

compressors or secondary refrigerants is 

large. Additional comments noted 

several problems with requiring 

hermetic compressors for industrial 

applications. Commenters noted that 

maintenance takes longer and emissions 

are more likely, because the whole 

refrigerant charge has to be cleaned or 

replaced if the hermetic compressor 

motor fails. A commenter suggested that 

if the Agency is considering requiring 

hermetic (or semi-hermetic) 

compressors and/or secondary 

refrigerants, it should do so in a 

different rulemaking with its own 

proposal and comment period due to 

concerns over technical infeasibility 

(especially for lower temperature and 

larger manufacturing processes) and 

associated costs. Commenters stated that 

hermetic (or semi-hermetic) 

compressors would not necessarily 

always provide a large degree of 

emissions reductions, hence there is less 

certainty as to the environmental benefit 

of this proposed requirement. 

A commenter stated that a universal 

requirement to use secondary 

refrigerants would be inappropriate. The 

commenter stated that suitable or 

compatible secondary refrigerants might 

not be available for a particular process. 

The commenter believed that switching 

to secondary refrigerants would be 

burdensome because most refrigeration 

systems are designed for specific 

primary refrigerants. According to the 

commenter, large portions of the system 

would have to be replaced at great 

expense to successfully switch to a 

secondary refrigerant. 

EPA also sought comment on other 

possible approaches to leak repair in 

industrial process refrigeration 

equipment that could be more or less 

complex than the one proposed. A 

simple approach would lower the 

current permissible leak rate for all 

industrial process appliances to a single 

new rate, perhaps to 25 percent per 

year. A more complex approach would 

establish three or more permissible rates 

for different classes of appliances. 

One commenter suggested a two-tier 

approach to lowering the permissible 

leak rate that would allow industry to 

select the tier which best accommodates 

their needs. The first tier would be a 

simple approach that reduces the 

permissible leak rate to a new lower rate 

(say 25–30%) that would apply to all 

industrial process refrigeration 

appliances. The second tier would be a 

more complex approach, namely, to 

distinguish between appliance types in 

establishing permissible leak rates. 

Another commenter was concerned 

that the proposed permissible leak rates 

may be difficult to achieve without 

replacing the entire appliance or 

wholesale replacement of joints and 

seals. Although technically feasible, the 

commenter thought this would be an 

unreasonable requirement due to the 

costs associated with such 

replacements. The commenter suggested 

a more lenient acceptable leak rate to 

account for normal variations in leak 

rates between various pieces of the 

appliance. The commenter noted that 

revised regulations should take into 

account increasing leak rates in older 

appliances, higher leak rates in portable 

and mobile appliances, and refrigerant 

charging errors that may significantly 

distort the leak rate calculation. The 

commenter suggested permissible leak 

rates of 25 percent for commercial 

refrigeration, regardless of the age of the 

appliance, and 10–15 percent for all 

other appliances. 

EPA also sought comment on the 

proposal to make the new leak rates 

effective for industrial process 

refrigeration equipment three years after 

promulgation for the following reasons: 

1. Owners, operators, and servicers of 

industrial process refrigeration 

appliances have had less time than 

owners, operators, and servicers of other 

types of appliances to learn and 

implement the existing maximum 

permissible rates; 

2. Custom-built industrial process 

refrigeration appliances and 

replacement parts take longer than other 

types of appliances to order, build, and 

repair, thus providing a rationale for a 

time delay between promulgation and 

effective date; 

3. Industrial process refrigeration 

appliances must be shut down, at 

considerable expense before large 

repairs can be made to their 

refrigeration systems or before such 

systems can be replaced, thus providing 

a rationale for permitting significant 

lead time between the promulgation and 

effective date of the new leak rate. 

EPA received comment supporting 

the effective date. Commenters stated 

that the use of 30 days after the 

publication date of the final rule would 

be impractical as it does not take into 

consideration the work load and 

scheduling of refrigeration contractors 

nor the cost and impact on the 

budgetary process of the appliance 

owner. Other commenters noted that the 

three-year delay would allow time for 

technicians to be retrained, and to help 

mitigate the burden and disruption 

associated with the change in leak rates. 

EPA believes, based on the comments 

it received, that additional data on 

historical repair trends and leak 

tightness of industrial process 

refrigeration appliances are warranted 

prior to lowering the leak rates. EPA 

intends to initiate efforts to gather data 

on the availability and effectiveness of 

current leak reduction methods prior to 

amending the leak repair trigger rates. 

Therefore, as a part of today’s action, 

EPA is not finalizing the proposal to 

lower the permissible leak rates for 

industrial process refrigeration 

appliances containing more than 50 

pounds of CFC or HCFC refrigerant. 

Since EPA is not finalizing the proposal 

Federal Register / Vol. 70, No. 7 / Tuesday, January 11, 2005 / Rules and Regulations 1981 

to lower leak rates for industrial process 

refrigeration appliances, there will not 

be a corresponding three-year 

implementation date for the effective 

date of the regulations. Due to the 

apparent difficulties and 

incompatibility of hermetic compressors 

in the industrial process refrigeration 

sector, further evaluation is required 

prior to any Agency action considering 

how to incorporate the use of hermetic 

compressors or secondary loop systems 

into the leak repair regulations. The 

Agency may address, in a future NPRM, 

alternative approaches to determining 

the leak rate in industrial process 

refrigeration. 

4. Cross-Sector Issues 

EPA requested comment on several 

issues affecting all three sectors covered 

by the leak repair requirements. EPA 

requested comment on its proposal to 

establish a two-tier leak rate which 

would distinguish between old and new 

appliances in establishing maximum 

allowable leak rates based upon the date 

of manufacture of the appliances. EPA 

proposed and sought comment on the 

use of the year 1992 as the baseline to 

regulate appliances more or less 

stringently. EPA also requested 

comment on whether the environmental 

and economic benefits of having two 

leak rates would justify the increase in 

administrative complexity that would 

result from such an approach. 

In proposing to establish a two-tier 

leak repair requirement based upon the 

age of appliances, EPA requested 

comment on whether the date of 

‘‘manufacture’’ should be defined as the 

date that appliance leaves the factory or 

the date that it is installed. EPA noted 

that it may be appropriate to define 

‘‘manufacture’’ differently for different 

types of appliances, because some 

appliances (e.g., comfort cooling 

chillers) could be considered 

‘‘manufactured’’ when they leave the 

factory, while appliances that are 

assembled in the field from numerous 

components (e.g., commercial and 

industrial process refrigeration) could 

be considered ‘‘manufactured’’ when 

their installation is complete. 

EPA received comments stating that 

the Agency should not require 

refrigeration equipment to continue to 

meet the same very low leak rates 

throughout the life of the equipment, 

because leak rates are likely to increase 

as the refrigeration equipment ages. One 

commenter noted that experience 

indicates that older refrigeration 

systems generally have higher leak rates 

than new ones; hence, systems do not 

maintain the same leak rates throughout 

their life span. Many common types of 

machinery exhibit a decline in 

performance as they age. The 

commenter cautioned that if the Agency 

obtains historic information on leaktightness of refrigeration systems, it 

should not compare pre-rule (63 FR 

32044; June 11, 1998) to post-rule data, 

because improvements in the leak rates 

of older equipment would result from 

the regulation going into effect, not from 

any improvement in that actual 

equipment. The commenter stated that 

because it is unlikely that the Agency 

will have historical leak-tightness data 

on the equipment, and because post-rule 

equipment has not yet completed a full 

life span, the Agency should not impose 

leak rates that the equipment may not be 

able to meet as it ages. The commenter 

stated that the Agency should provide a 

mechanism that permits equipment to 

continue to comply as it ages. 

EPA concurs with the commenters in 

that leak rates are likely to increase as 

the appliances age, and believes that 

this is in fact the rationale for 

establishing the leak repair 

requirements. While EPA proposed a 

two-tier rate, the NPRM did not propose 

or imply that the leak rate for older 

appliances would not be tightened. To 

the contrary, the NPRM discussed the 

Agency’s intent to lower leak rates for 

older appliances while establishing a 

two-tier system. Older appliances 

should be maintained to be as tight as 

possible. By mandating leak repair 

trigger rates, EPA ensures that older 

appliances will be maintained and 

emissions of refrigerants will be 

minimized to the lowest achievable 

level as appliances age. 

EPA received mixed comments 

regarding the Agency’s proposal to 

differentiate leak rates for appliances 

based upon date of manufacture. Some 

commenters expressed concern that this 

approach complicates the regulation 

because owners and operators would 

need to rely on a nameplate on the 

appliance for the date of manufacture or 

other data that might not be readily 

available. Other commenters requested 

that the date of manufacture for custombuilt appliances be identified according 

to the date that the appliance leaves the 

factory, because the date of shipment 

and the date that the appliance was 

actually placed into service may be 

years apart. While others suggested that 

the date of manufacture be defined as 

the date of mechanical completion or 

start-up date of the system. 

EPA also requested comment on 

whether it is possible to distinguish 

between slow leakage, servicing 

emissions, and catastrophic emissions 

in establishing and complying with leak 

rate limits. This question becomes 

important with a lower permissible leak 

rate because the percentage of charge 

lost through servicing and catastrophic 

emissions may be a significant fraction 

of the lower rate. 

EPA received comment that 

amendments to the leak rate required 

practices may not be necessary because 

in many sectors, such as the commercial 

sector, leaks tend to be catastrophic in 

nature. One commenter stated that it 

would not be helpful to exclude 

catastrophic losses from leak rate 

calculations, since the immediate repair 

of such appliances is necessary in order 

to get the refrigeration system back online. The commenter suggested that 

such an exclusion may actually be 

detrimental if the Agency then requires 

some sort of recordkeeping requirement 

to keep track of which emissions were 

from ordinary leaks and which were 

from catastrophic events. In such 

instances repairs are not only required 

but a necessity in order to remain 

operable; thus, it is in the best interest 

of the owner to control and reduce 

leaks. Commenters stated that owners or 

operators should not be faulted for 

catastrophic leakage of refrigeration 

equipment; thus, it is appropriate to 

establish leak rates based on slow leaks 

alone. 

The primary goal of the leak repair 

provisions has been to reduce emissions 

from leaking appliances. EPA recognizes 

that catastrophic emissions are often 

beyond the control of appliance owners 

or operators. EPA believes that 

catastrophic losses will come to the 

attention of appliance owners or 

operators very quickly after they occur 

and will be large compared to losses 

from slow emissions. In sectors such as 

the commercial refrigeration sector, 

immediate repair of catastrophic leaks is 

required in order to sustain business 

operations. EPA believes that a 

requirement to repair the appliance so 

that it does not continue to leak above 

the applicable annual leak rate would 

not be expected to compromise the need 

of the owner or operator to repair the 

catastrophic leak. Since the commercial 

sector would need to respond to 

catastrophic releases immediately, EPA 

believes that adherence to the leak 

repair requirements simply reinforces 

the need to repair leaks in a timely 

manner. The environmental benefit of 

the requirements is that they persuade 

owners or operators to take action to 

address the operation of appliances that 

have a history of catastrophic failures. 

Under the proposed and final leak 

repair regulations such appliances 

would eventually require retirement, 

replacement, or retrofit to substitutes 

that are less damaging to the ozone 

1982 Federal Register / Vol. 70, No. 7 / Tuesday, January 11, 2005 / Rules and Regulations 

layer. The intent of the requirements is 

not to mandate continuous repair 

attempts on leaking appliances, but to 

take efforts to maintain appliances such 

that they will not undergo repeated 

patterns of repair attempts followed by 

refrigerant recharge. EPA emphasizes 

that the aim of the leak repair 

regulations is to minimize emissions of 

ozone-depleting refrigerants to the 

lowest achievable level by requiring the 

repair, replacement, or retrofit of leaking 

appliances. Therefore, while 

catastrophic loses are not the intended 

focus of the leak repair requirements, 

such loses are not exempt from the leak 

repair requirements. 

5. Extension of Leak Repair 

Requirements to HFC and PFC 

Appliances 

In the NPRM, EPA explained that 

establishing consistent leak repair 

requirements for CFC, HCFC, HFC, and 

PFC appliances would minimize 

emissions of all four types of 

refrigerants and substitutes. EPA further 

explained that exempting HFC and PFC 

substitutes from conservation 

requirements could lead to confusion 

and skepticism regarding similar 

requirements for CFCs and HCFCs, 

which would undermine 

implementation of the statutory 

directives to reduce emissions of these 

substances to the lowest achievable 

level and to maximize their recapture 

and recycling. Hence in the NPRM, EPA 

requested comment on its proposal to 

extend the leak repair requirements to 

owners or operators of appliances using 

HFC and PFC substitutes. 

EPA received comments opposing the 

extension of the leak rate regulations to 

HFC and PFC refrigerant substitutes. 

Commenters cited the price of HFCs and 

the need for efficient operation of 

refrigeration equipment as incentives for 

owners or operators to repair leaks as 

soon as possible, regardless of a 

maximum permissible leak rate. 

Comments also questioned the statutory 

authority of EPA to regulate substances 

that do not contribute to depletion of 

the stratospheric ozone layer (i.e., class 

I and class II ODS). One commenter 

stated that the proposal was arbitrary, 

capricious, or otherwise not in 

accordance with law; therefore, it would 

be illegal for the Agency to impose leak 

repair requirements on those systems 

and refrigerants for which it lacks 

sufficient data. The commenter also 

stated that the requirements cannot 

apply to leaks that occur during normal 

use, since these leaks do not occur 

during the servicing, maintenance, or 

disposal of appliances. 

In the NPRM (63 FR 32045; June 11, 

1998) EPA explained that section 608(a) 

provides EPA with authority to 

promulgate the proposed requirements. 

Section 608(a) requires EPA to 

promulgate regulations regarding use 

and disposal of class I and II substances 

that ‘‘reduce the use and emission of 

such substances to the lowest 

achievable level’’ and ‘‘maximize the 

recapture and recycling of such 

substances.’’ Section 608(a) further 

provides that ‘‘(s)uch regulations may 

include requirements to use alternative 

substances (including substances which 

are not class I or class II substances) 

* * * or to promote the use of safe 

alternatives pursuant to section 612 or 

any combination of the foregoing.’’ In 

addition, section 608(a)(2) requires EPA 

to promulgate regulations establishing 

standards and requirements regarding 

use and disposal of class I and class II 

substances during service, repair, or 

disposal of appliances. 

While market price may be an 

incentive against venting, it has not 

been found to be a sufficient deterrent 

against the continuous practice of repair 

attempts followed by refrigerant 

recharges. EPA inspections continue to 

find excessive leak rates from IPR 

appliances. EPA believes that the 

statutory authority to promulgate 

regulations regarding use of class I and 

II substances, including requirements to 

use alternatives, is sufficiently broad to 

include requirements on how to use 

alternatives, where regulation is needed 

to reduce emissions and maximize 

recycling of class I and II substances. 

Therefore, in accordance with the 

requirements of section 608(c) of the 

Act, EPA is extending the leak repair 

required practices and the associated 

reporting and recordkeeping 

requirements to owners or operators of 

appliances using HFC blends that 

consist in part of an ODS. Therefore 

owners or operators of appliances using 

HFC refrigerant blends including but 

not limited to R–401A and B, R–402A 

and B, R–403B, R–406A, R–408A, R– 

409A, R–411A, and B, R–414A and B, 

R–416A, R–500, R–502, R–503, NARM– 

502, RB–276 (FreeZone), GHG–HP, 

GHG–X5, Freeze 12, ICOR, THR–04, and 

R–509 are covered under the leak repair 

required practices because the 

refrigerants consist in part of a class II 

ODS. This extension has been 

accomplished by amending the 

definition of refrigerant at § 82.152 in a 

previous rulemaking (March 12, 2004; 

69 FR 11946). The change in the 

definition means that substitutes 

consisting in whole or in part of an ODS 

are covered under the required practices 

of 40 CFR part 82, subpart F (i.e., section 

608). 

EPA has decided not to extend the 

leak repair requirements or the 

associated reporting and recordkeeping 

requirements to owners or operators of 

appliances using pure HFC or PFC 

substitutes. However, EPA emphasizes 

that HFC and PFC substitutes are not 

exempt from the statutory venting 

prohibition of section 608(c)(2) of the 

Act (69 FR 11946; March 12, 2004). 

Therefore, in the absence of any 

required leak repair requirements, it 

statutorily remains illegal to knowingly 

vent HFC and PFC substitutes during 

the maintenance, service, repair, and 

disposal of comfort cooling, commercial 

refrigeration, and industrial process 

refrigeration appliances. 

6. Clarification of Leak Repair 

Requirements 

In the May 14, 1993 final rule (58 FR 

28660), EPA published final regulations 

requiring owners and operators to ‘‘have 

all leaks repaired’’ where an appliance 

subject to the leak repair requirements 

was leaking above the applicable 

allowable annual leak rate (58 FR 

28716). In a subsequent rulemaking 

regarding leak repair requirements 

published on August 8, 1995 (60 FR 

40420), EPA amended that language to 

state that ‘‘repairs must bring the annual 

leak rate to below 35 percent of the total 

charge during a 12-month period’’ (60 

FR 40440), or where appropriate, to 

below 15 percent. This change in the 

rule recognized that appliances without 

hermetically sealed refrigerant circuits 

should not be expected to have a ‘‘zero 

percent’’ leak rate. 

EPA believes that it is practical to 

require the owners or operators to 

maintain a leak rate that is at or below 

the applicable allowable annual rate, 

and where the leak rate has been 

exceeded to make the necessary repairs 

to return the appliance’s leak rate to or 

below the applicable allowable leak rate 

or to retrofit/retire the appliance. EPA 

emphasizes that compliance with the 

required practices for leak repair is 

dependent upon the leak rate of the 

appliance not the repair of a specific 

leak or leaks. 

In response to commenters’ concerns 

regarding verification testing, EPA is 

clarifying that at this time verification 

testing is only required for: owners or 

operators of industrial process 

refrigeration appliances, in accordance 

with § 82.156(i)(3); owners or operators 

of federally-owned comfort cooling 

appliances who are granted additional 

time for repairs under § 82.156(i)(5)(iii); 

and owners or operators of federallyowned commercial refrigeration 

Federal Register / Vol. 70, No. 7 / Tuesday, January 11, 2005 / Rules and Regulations 1983 

appliances who are granted additional 

time for repairs under § 82.156(i)(1)(iii). 

While verification tests are not required 

for all sectors, such testing performed as 

a part of leak repair efforts has 

advantages for owners and operators. 

EPA believes that attempts to verify 

repairs at the point of repair and again 

after the appliance is operational will 

aid the owner or operator in 

demonstrating compliance with the leak 

repair regulations. In contrast, multiple 

repair attempts of the same leaks 

followed by refrigerant recharge 

demonstrate that the repair of the 

appliance did not bring the annual leak 

rate to below the applicable leak rate as 

required by § 82.156(i). 

EPA requires owners and operators of 

industrial process refrigeration 

appliances and in some instances for 

federally-owned commercial 

refrigeration appliances and federallyowned comfort cooling appliances that 

are granted additional time to make 

repairs, to perform initial and followup 

verification tests to establish that repairs 

were successful. EPA recognizes that 

verification tests indicate the success or 

failure of the repair effort for a given 

leak or set of leaks, not the leak rate of 

an appliance. In the August 8, 1995 

rulemaking, EPA stated that it was not 

the Agency’s ‘‘intention to imply that 

the verification tests show what the leak 

rate is. However, EPA believes that 

where the verification tests show that 

the repairs have been successful, in 

most cases this will mean that there has 

been a reduction in the leak rate’’ (60 FR 

40430). 

Section 82.156(i) requires owners or 

operators to conduct repairs to lower an 

appliance’s leak rate below the 

applicable allowable annual leak rate. 

EPA emphasizes that knowing a leak 

has been repaired does not necessarily 

mean that the owner or operator is 

aware of the current leak rate of the 

appliance or whether the owner or 

operator is in compliance with the 

required practices of § 82.156. Such is 

the case in instances where owners or 

operators make repair attempts but do 

not calculate the leak rate. Without 

calculating the leak rate the owner or 

operator would have no means of 

determining compliance with the leak 

repair required practices. 

In the NPRM, EPA described four 

compliance scenarios to assist the 

owners or operators in determining 

what actions are appropriate when an 

appliance is leaking above the 

applicable allowable annual leak rate. 

Due to the volume of questions that 

those scenarios generated, EPA feels 

that further discussion of the leak repair 

compliance scenarios is warranted. The 

compliance scenarios described in the 

NPRM are consistent with the regulatory 

requirements, and the Agency did not 

propose any regulatory changes 

associated with these scenarios. EPA 

discussed the scenarios in the NPRM to 

provide compliance assistance. EPA 

solicited feedback on these scenarios 

and the outcomes described in each 

scenario in order to evaluate the need 

for further clarification and possible 

regulatory amendments. The following 

discussion of five scenarios (the 

previous four scenarios from the NPRM 

(63 FR 32070; June 11, 1998) and one 

more scenario added for further clarity) 

aims to provide further clarification to 

the regulated community on how the 

leak rate and verification tests relate to 

the repair and/or retrofit/retire 

provisions promulgated at § 82.156(i). 

EPA has edited the scenarios to remove 

any ambiguity as to their applicability to 

industrial process refrigeration, comfort 

cooling, or commercial refrigeration 

appliances. 

a. Scenario 1 

In Scenario 1, the owner or operator 

of industrial process refrigeration 

appliances or federally-owned comfortcooling or commercial appliances 

discovers that the appliance is leaking 

above the applicable allowable annual 

leak rate. The owner or operator fixes all 

leaks, and verifies that the leaks have 

been repaired consistent with the 

verification testing requirements of 

§ 82.156(i), meaning an initial 

verification test was conducted at the 

conclusion of the repair efforts and a 

follow-up verification test was 

conducted within 30 days after the 

initial verification test. If a leak rate 

above the applicable allowable annual 

leak rate for the appliance is suspected 

after the repairs are completed and leaks 

are discovered at new locations, these 

leaks will be considered as a new leak 

occurrence for the appliance. 

Leaks in the appliance that occur after 

repair attempts (whether or not they 

occur at the same location), but in the 

absence of mandatory initial and followup verification tests are considered 

violations for several reasons. First, the 

verification tests were not conducted in 

accordance with § 82.156. It is more 

likely that failure to verify that repairs 

were successful will lead to future leaks 

within the appliance. EPA considers 

refrigeration additions that occur after 

repair attempts, but in the absence of 

successful mandatory verification tests, 

to be continuing violations. This is 

because without verification, there is no 

evidence that the owner or operator 

brought the leak rate of the appliance 

beneath the applicable leak rate, even 

though repair attempts might have been 

made. 

However, if mandatory verification 

tests show that repairs were successful 

and the appliance is once again 

suspected of having a leak at a new 

location that results in the appliance 

leaking above the applicable allowable 

leak rate (even if the leak occurs a short 

time after the repairs were completed), 

EPA considers these leaks as a new leak 

occurrence for the appliance. The next 

leak occurrence requiring addition of 

refrigerant would constitute a new leak 

occurrence for the appliance, and the 

owner or operator would be required to 

comply with all applicable requirements 

promulgated at § 82.156(i). 

Scenario 1 as described in the NPRM 

was not applicable to owners or 

operators of comfort cooling or 

commercial refrigeration appliances that 

are not federally-owned or operated. 

These appliance owners or operators are 

encouraged but not currently mandated 

to perform initial and follow-up 

verification tests in order to ensure that 

the leak rate has been brought below the 

applicable leak rate. Owners or 

operators of comfort cooling or 

commercial refrigeration appliances that 

are not federally-owned or operated are 

required to repair leaks such that the 

leak rate of the appliance will not 

exceed the applicable leak rate within 

30 days of discovery. Owners or 

operators are relieved of this obligation 

if they choose to develop, within 30 

days of discovery of a leak, a one-year 

retrofit or retirement plan in accordance 

with §§ 82.156(i)(1) and (i)(5), for 

commercial and comfort cooling 

appliances, respectively. 

b. Scenario 2 

Scenario 2 as described in the NPRM 

was not applicable to owners or 

operators of comfort cooling or 

commercial refrigeration appliances that 

are not federally-owned or operated, 

because such owners or operators are 

not required to perform initial and 

follow-up verification tests. In response 

to public comments requesting clarity 

on the scenario, EPA has clarified 

Scenario 2 such that it is specific to 

repeated leaks at the same location 

(same location meaning an identical 

point within the same appliance). 

Under Scenario 2, the owner or 

operator of the industrial process 

refrigeration or under certain 

circumstances the owner or operator of 

federally owned comfort cooling or 

commercial appliance with a refrigerant 

charge greater than 50 pounds discovers 

that the appliance is leaking above the 

applicable allowable annual leak rate. 

The owner or operator fixes the leaks 

1984 Federal Register / Vol. 70, No. 7 / Tuesday, January 11, 2005 / Rules and Regulations 

and verifies that they have been 

repaired consistent with § 82.156(i). The 

next time leaks are suspected within a 

consecutive 12-month period, the owner 

or operator finds leaks have occurred at 

the same location (meaning the identical 

point within the same appliance). This 

ongoing problem is an indication that 

appropriate repairs have not been 

conducted. Where leaks at the same 

location continue to occur, the owner or 

operator has not performed repair efforts 

necessary to reduce the leak rate below 

the applicable allowable annual leak 

rate. Thus, the owner or operator has 

violated the required practices 

established in § 82.156(i). 

c. Scenario 3 

In the third scenario, the owner or 

operator discovers that the appliance is 

leaking above the applicable allowable 

annual rate and identifies ten different 

leak sources that are contributing to the 

high leak rate. The owner or operator 

determines that repairing six leaks will 

bring the appliance into compliance by 

lowering the leak rate to below the 

applicable allowable annual rate. The 

owner or operator believes that leaving 

four leaks unrepaired still will result in 

a leak rate below the applicable 

allowable annual rate. The owner or 

operator fixes and as required for 

industrial process refrigeration and 

federally-owned comfort cooling and 

commercial appliances verifies that 

these six leaks have been repaired 

consistent with the requirements 

promulgated at § 82.156(i). The 

appliance continues to leak, but below 

the applicable allowable annual rate. 

In the NPRM, EPA stated that in this 

scenario the owner or operator of the 

appliance complied with the 

requirements by actually reducing and 

maintaining a leak rate that is below the 

applicable allowable annual rate. Such 

is the case for instances where owners 

or operators are mandated to perform 

initial and follow-up verification tests, 

in accordance with § 82.156(i). EPA is 

concerned that this scenario as 

proposed may not provide compliance 

for owners or operators who are not 

currently mandated to perform initial 

and followup verification tests, namely 

owners or operators of commercial and 

comfort cooling appliances. 

In order to remain consistent with the 

regulatory language requiring owners or 

operators to make repairs that bring the 

annual leak rate to below the applicable 

leak rate, EPA is clarifying that it cannot 

condone actions by owners or operators 

to knowingly allow appliances to leak. 

EPA believes that failure to repair all 

known leaks, and successfully verify 

repairs when required, leaves the owner 

or operator with a great deal of 

uncertainty concerning their 

compliance with the leak repair 

required practices. In the absence of 

verification, the owner or operator of 

comfort cooling and commercial 

appliances would have no way of 

knowing if their appliance is not in 

compliance until a future need to add 

refrigerant. If the owner or operator 

decided to leave known leaks 

unchecked, a future addition of 

refrigerant could lead to a continuing 

violation for failure to sufficiently repair 

the appliance such that it does not leak 

above the applicable leak rate within 30 

days of discovery. 

d. Scenario 4 

In the fourth scenario, the owner or 

operator discovers that the appliance is 

leaking above the applicable allowable 

annual rate. The owner or operator 

identifies ten different leak sources that 

are contributing to the leak rate. The 

owner or operator decides that repairing 

six leaks will bring the appliance into 

compliance by lowering the leak rate to 

below the applicable allowable annual 

rate. The owner or operator fixes and 

verifies that these leaks have been 

repaired consistent with the 

requirements promulgated at § 82.156(i). 

Upon later inspection, or by the future 

need to add refrigerant, it is discovered 

that the appliance continued leaking 

above the applicable allowable annual 

rate and there are no newly identified 

leak sources. In this scenario, the owner 

or operator of comfort cooling or 

commercial refrigeration appliances did 

not lower the leak rate in accordance 

with § 82.156(i). 

As previously stated in the discussion 

of Scenario 3, EPA cannot condone 

actions by owners or operators to 

knowingly allow appliances to leak, and 

believes that such actions result in 

uncertainty concerning compliance with 

the leak repair required practices. EPA 

considers this failed repair attempt a 

violation of the leak repair required 

practices because the owner or operator 

did not sufficiently repair the appliance. 

Meaning that even after repair attempts, 

the appliance continued to leak above 

the applicable annual leak rate. In the 

absence of verification and the 

subsequent addition of refrigerant 

without the identification of new leaks, 

the owner or operator of the comfort 

cooling or commercial appliance is not 

considered to have used ‘‘sound 

professional judgement’’ in determining 

which leaks to repair. Owners or 

operators of appliances that pass 

mandatory initial and followup 

verification tests under § 82.156(i) (i.e., 

industrial process refrigeration and 

federally-owned comfort and 

commercial refrigeration appliances) are 

not considered to be in violation of the 

leak repair required practices, as they 

have successfully passed initial and 

followup verification tests. 

e. Scenario 5 

EPA received comments questioning 

the applicability of the compliance 

scenarios to comfort cooling and 

commercial refrigerant appliances. 

Several commenters expressed concern 

that current EPA interpretation of the 

leak repair requirements could result in 

enforcement actions when the owner 

has made good faith attempts to repair 

all known leaks. 

The commenters described a scenario 

in which repairs were made on all 

known leaks in a commercial or comfort 

cooling appliance. After this initial 

repair, the owner or operator discovers 

a new leak(s), in a different location(s) 

that bring the leak rate of the appliance 

above the applicable leak rate, as shown 

by the addition of refrigerant and 

calculation of the leak rate. This second 

round of leaks is once again repaired 

and the appliance is once again 

recharged with refrigerant. The 

commenters questioned why the second 

repair and second addition of refrigerant 

were viewed by EPA as continuing 

violations of the leak repair provisions. 

Or more simply stated, commenters 

questioned why the second addition of 

refrigerant that results in an annual leak 

rate above the applicable leak rate is 

viewed by EPA as a continuing violation 

from the first addition of refrigerant and 

subsequent repair. The commenters also 

noted that using this interpretation of 

the regulations would make it 

impossible for the owner or operator to 

know that their appliances were in 

compliance until the next leak 

occurrence or need for additional 

refrigerant. This assumes that the 

appliance would have a new leak or 

require the addition of refrigerant. If it 

did not after the initial repair, it may not 

be possible to know if the appliance was 

brought beneath the applicable trigger 

rate at all. 

In response to public comments, EPA 

is emphasizing that the appliance owner 

or operator must demonstrate that the 

repair(s) brought the leak rate of the 

appliance below the applicable annual 

leak rate, in accordance with § 82.156. 

Consecutive or continued cycles of 

repair and subsequent refrigerant 

charges are not viewed by EPA as 

compliance with the required practices. 

However, in the absence of mandatory 

initial and followup verification, the 

owner or operator of comfort cooling 

and commercial refrigeration appliances 

Federal Register / Vol. 70, No. 7 / Tuesday, January 11, 2005 / Rules and Regulations 1985 

may not realize that a repaired 

appliance has remained out of 

compliance until the future need to add 

refrigerant. Therefore, until verification 

tests are mandated, EPA considers leak 

occurrences in commercial and comfort 

cooling appliances that have occurred 

after the appliance was repaired in 

compliance with § 82.156(i)(1) and (i)(5) 

as ‘‘new’’ if they involve different 

leak(s) than the previously repaired leak 

event. 

Conversely, in instances where leaks 

continue to occur at the same location 

in a commercial refrigeration or comfort 

cooling appliance (meaning that the 

owner or operator continues to recharge 

after continued repair attempts on the 

same leak(s)), are viewed as violations 

of the leak repair provisions. EPA views 

patterns of futile repair attempts to 

repair leaks that continue to occur at the 

sale location followed by refrigerant 

recharge as violations of the leak repair 

requirement to bring the leak rate of the 

appliance beneath the applicable leak 

rate within 30 days of discovery. Such 

actions are not viewed as attempts to 

comply with the leak repair 

requirements since they result in an 

increase in refrigerant release to the 

atmosphere. 

D. Recordkeeping for Leak Repair 

Prior to the NPRM (June 11, 1998; 63 

FR 32043), EPA received comments 

indicating that the recordkeeping and 

reporting requirements promulgated at 

§ 82.166(n) may be confusing for those 

subject to the requirements. The 

structure of these provisions changed 

between the proposed and final rules 

(60 FR 3992; January 19, 1995 and 60 FR 

40420; August 8, 1995). The August 8, 

1995 final rule required the same 

reporting and recordkeeping 

requirement that EPA proposed in the 

January 19, 1995 NPRM, except for the 

changes discussed in the preamble to 

the August 8, 1995 final rule. 

In the 1998 NPRM, EPA proposed to 

modify the structure and presentation of 

the requirements to provide clarity by 

indicating which records must be 

maintained and reported. EPA also 

proposed to extend the leak repair 

reporting and recordkeeping provisions 

to HFC and PFC appliances by 

incorporating them into the definition of 

‘‘refrigerant’’ (63 FR 32058). 

1. Applicability to Substitutes 

In the NPRM, EPA proposed to extend 

the leak repair recordkeeping and 

reporting requirements for CFC and 

HCFC appliance owners or operators to 

owners or operators of HFC and PFC 

appliances. The NPRM proposed to 

extend these requirements by amending 

the definition of ‘‘refrigerant’’ to include 

HFC and PFC substitutes. The NPRM 

proposed that owners or operators of 

appliances that contain 50 or more 

pounds of refrigerant and leak above the 

applicable leak rate must adhere to the 

reporting and recordkeeping records in 

accordance with § 82.166(k), (n), (o), (p) 

and (q). 

At this time, EPA is not finalizing the 

proposal to subject owners or operators 

of all HFC and PFC appliances to the 

recordkeeping and reporting 

requirements of § 82.166. However, 

today’s action extends the 

recordkeeping and reporting 

requirements to owners or operators of 

appliances that use substitutes 

consisting of an ODS. EPA has not 

otherwise amended the recordkeeping 

and reporting requirements. These 

requirements are summarized below: 

a. General Service and Repair 

Recordkeeping and Reporting 

In accordance with § 82.166(k), 

owners or operators of appliances 

normally containing 50 or more pounds 

of a refrigerant containing a class I or 

class II ODS and leak above the 

applicable leak rate are subject to the 

following recordkeeping and reporting 

requirements. 

(1) Keep service records documenting 

the date and type of service, as well as 

the quantity of refrigerant added. 

(2) Keep records of refrigerant 

purchased and dates of refrigerant 

addition in instances where owners or 

operators service or repair their own 

appliances added to such appliances in 

cases where owners or operators add 

their own refrigerant. 

b. Extension of 30-day Repair 

Requirement 

In accordance with § 82.156(i)(1)(i), if 

owners or operators of the federallyowned commercial refrigeration 

appliances determine that leaks cannot 

be repaired within 30 days and therefore 

seek an extension, they must document 

all repair efforts and notify EPA of their 

inability to comply within the 30-day 

repair requirement. The notification 

must state the reason for the inability to 

comply within the 30-day repair 

requirement. If EPA determines that the 

extension is not justified, EPA will 

notify the owner or operator within 30 

days of receipt of the notification. 

In accordance with § 82.156(i)(2) and 

§ 82.156(i)(5)(i), owners or operators of 

industrial process refrigeration 

appliances and federally-owned comfort 

cooling and commercial refrigeration 

appliances who determine that the leak 

rate of the appliance cannot be brought 

to below 35 percent during a 12-month 

period within 30 days (or 120 days, 

where an industrial process shutdown is 

required) of discovering the leak and are 

granted an extension, must document 

all repair efforts. They must also notify 

EPA of the reason for the inability to 

repair within 30 days of making such a 

determination. 

c. Notification Due to Failed 

Verification Test 

In accordance with § 82.156(i)(3)(iii), 

the owner or operator of an industrial 

process refrigeration appliance that fails 

a follow-up verification test must notify 

EPA within 30 days of the failed followup verification test. The notification 

must include the dates and types of all 

initial and follow-up verification tests 

performed and the test results for all 

initial and follow-up verification tests 

within 30 days after conducting each 

test. 

d. Relief From the Obligation To Retrofit 

or Replace an Appliance 

In accordance with § 82.156(i)(3)(iv), 

the owner or operator of industrial 

process refrigeration appliances and 

federally owned comfort cooling and 

commercial appliances who are granted 

additional time to repair are relieved of 

the obligation to retrofit or replace the 

industrial process refrigeration 

appliance if second repair efforts to fix 

the same leaks that were the subject of 

the first repair efforts are successfully 

completed within 30 days (or 120 days 

where an industrial process shutdown is 

required) after the initial failed followup verification test. The owner or 

operator is required to notify EPA 

within 30 days of the successful followup verification test and is no longer 

subject to the obligation to retrofit or 

replace the appliance. 

In accordance with § 82.156(i)(3)(v), 

the owner or operator of industrial 

process refrigeration appliances must 

notify EPA within 30 days if the owner 

or operator determines that they are 

relieved of the obligation to retrofit or 

replace appliances because within 180 

days of the initial failed follow-up 

verification test they established that the 

appliance’s annual leak rate did not 

exceed the applicable leak rate (in 

accordance with § 82.156(i)(4)). The 

notification must include a plan to fix 

other outstanding leaks for which 

repairs are planned but not yet 

completed to achieve a rate below the 

applicable allowable leak rate. The 

notification must also include the 

identification of the facility and date the 

original information regarding 

additional time beyond the initial 30 

days was filed. The owner or operator 

would no longer be subject to the 

1986 Federal Register / Vol. 70, No. 7 / Tuesday, January 11, 2005 / Rules and Regulations 

obligation to retrofit or replace the 

appliances that arose as a consequence 

of the initial failure to verify that the 

leak repair efforts were successful. 

The notification must be relevant to 

the affected appliance and must 

include: Identification of the facility; the 

leak rate; the method used to determine 

the leak rate and full charge; the date a 

leak rate of greater than the allowable 

annual leak rate was discovered; the 

location of leaks(s) to the extent 

determined to date; and any repair work 

that has been completed thus far 

including the date that work was 

completed. The information must also 

include written reasons why more than 

30 days are needed to complete the 

work and an estimate of when repair 

work will be completed. If changes from 

the original estimate of when work will 

be completed result in moving the 

completion date forward from the date 

submitted to EPA, the reasons for these 

changes must be documented and 

submitted to EPA within 30 days of 

discovering the need for such a change. 

e. Relief From 30-Day Repair 

Requirement Due to Adoption of 

Retrofit/Retirement Plan 

In accordance with § 82.156(i)(6), 

owners or operators of industrial 

process refrigeration and federally 

owned comfort cooling and commercial 

appliances are not required to repair, if 

within 30 days of discovering the 

exceedance of the applicable leak rate or 

within 30 days of a failed follow-up 

verification test in accordance with 

§ 82.156(i)(3)(ii), they develop a oneyear retrofit or retirement plan for the 

leaking appliance. The retirement or 

retrofit plan must be kept at the site of 

the appliance and made available for 

EPA inspection upon request. The plan 

must be dated and all work under the 

plan must be completed within one year 

of the plan’s date. 

Similarly, in accordance with 

§ 82.156(i)(6)(i), if the owner or operator 

of industrial process refrigeration and 

federally owned comfort cooling and 

commercial appliances has attempted 

repair but later decides to proceed with 

a plan to retrofit or retire the appliance, 

they must develop a retrofit or 

retirement plan within 30 days of the 

determination to retrofit or retire the 

appliance and complete the plan within 

one year from discovery that the leak 

rate exceeded the applicable allowable 

leak rate. 

In all cases, the written plan shall be 

prepared no later than 30 days after the 

owner or operator has determined to 

proceed with retrofitting or retiring the 

appliance. In addition, the following 

information must be maintained and is 

due to EPA Headquarters at the time 

specified in the paragraph imposing the 

specific reporting requirement, or no 

later than 30 days after the decision to 

retrofit or retire the appliance, 

whichever is later: 

(1) The identification of the industrial 

process facility; 

(2) The leak rate; 

(3) The method used to determine the 

leak rate and full charge; 

(4) The date a leak rate of 35 percent 

or greater was discovered; 

(5) The location of leaks(s) to the 

extent determined to date; 

(6) Any repair work that has been 

completed thus far and the date that the 

work was completed; 

(7) A plan to complete the retrofit or 

replacement of the appliance; 

(8) The reasons why more than one 

year is necessary to retrofit to replace 

the appliance; 

(9) The date of notification to EPA; 

and 

(10) An estimate of when retrofit or 

replacement work will be completed. 

If the estimated date of completion 

changes from the original estimate and 

results in moving the date of completion 

forward, documentation of the reason 

for these changes must be submitted 

within 30 days of making the 

determination that an extension is 

required along with the date of 

notification to EPA regarding this 

change and the estimate of when the 

work will be completed. 

f. Additional Time for Retirement or 

Retrofit 

In accordance with § 82.156(i)(7), the 

owners or operators of industrial 

process refrigeration appliances will be 

allowed additional time to complete the 

retrofit or retirement of industrial 

process refrigeration appliances if due 

to delays occasioned by the 

requirements of other applicable 

Federal, State, or local laws or 

regulations, or due to the unavailability 

of a suitable replacement refrigerant 

with a lower ozone depletion potential. 

Under these circumstances, the owner 

or operator of the appliance must notify 

EPA within six months after the 30-day 

period following the discovery of an 

exceedance of the 35 percent leak rate. 

Records necessary to allow EPA to 

determine that these provisions apply 

and the length of time necessary to 

complete the work must be submitted to 

EPA in accordance with § 82.166(o), as 

well as maintained on-site. EPA will 

notify the owner or operator of its 

determination within 60 days of receipt 

the submittal. 

An additional one-year period beyond 

the initial one-year retrofit period is 

allowed for industrial process 

refrigeration appliances where the 

following criteria are met: 

(A) The new or the retrofitted 

industrial process refrigerant appliance 

is custom-built; 

(B) The supplier of the appliance or 

one or more of its critical components 

has quoted a delivery time of more than 

30 weeks from when the order is placed; 

(C) The owner or operator notifies 

EPA within six months of the expiration 

of the 30-day period following the 

discovery of an exceedance of the 35 

percent leak rate to identify the owner 

or operator, describe the appliance 

involved, explain why more than one 

year is needed, and demonstrate that the 

first two criteria are met in accordance 

with § 82.166(o); and 

(D) The owner or operator maintains 

records that are adequate to allow a 

determination that the criteria are met. 

The owners or operators of industrial 

process refrigeration appliances may 

request additional time to complete 

retrofitting or retiring the appliance 

beyond the additional one-year period if 

needed and where the initial additional 

one year was granted. The request shall 

be submitted to EPA before the end of 

the ninth month of the first additional 

year and shall include revisions of 

information required under § 82.166(o). 

Unless EPA objects to this request 

submitted in accordance with 

§ 82.166(o) within 30 days of receipt, it 

shall be deemed approved. 

In accordance with § 82.156(i)(8), 

owners or operators of federally-owned 

commercial or comfort-cooling 

appliances will be allowed an 

additional year to complete the retrofit 

or retirement of the appliances if the 

conditions described in paragraph 

§ 82.156(i)(8)(i) of this section are met, 

and will be allowed one year beyond the 

additional year if the conditions in 

paragraph § 82.156(i)(8)(ii) are met. 

In accordance with § 82.156(i)(8)(i), 

up to one additional one-year period 

beyond the initial one-year retrofit 

period is allowed for such appliances 

where the following criteria are met: 

(A) Due to complications presented by 

the Federal agency appropriations and/ 

or procurement process, a delivery time 

of more than 30 weeks from the 

beginning of the official procurement 

process is quoted, or where the 

appliance is located in an area subject 

to radiological contamination and 

creating a safe working environment 

will require more than 30 weeks; 

(B) The operator notifies EPA within 

six months of the expiration of the 30­

day period following the discovery of an 

exceedance of the applicable allowable 

annual leak rate to identify the operator, 

Federal Register / Vol. 70, No. 7 / Tuesday, January 11, 2005 / Rules and Regulations 1987 

describe the appliance involved, explain 

why more than one year is needed, and 

demonstrate that the first criterion is 

met in accordance with § 82.166(o); and 

(C) The operator maintains records 

adequate to allow a determination that 

the criteria are met. 

In accordance with § 82.156(i)(8)(ii), 

the owners or operators of federallyowned commercial or comfort-cooling 

appliances may request additional time 

to complete retrofitting, replacement or 

retiring such appliances beyond the 

additional one-year period if needed 

and where the initial additional one 

year was granted in accordance with 

paragraph § 82.156(i)(8)(i). The request 

shall be submitted to EPA before the 

end of the ninth month of the first 

additional year and shall include 

revisions of information earlier 

submitted as required under § 82.166(o). 

Unless EPA objects to this request 

submitted in accordance with 

§ 82.166(o) within 30 days of receipt, it 

shall be deemed approved. 

g. Omission of Purged Refrigerant From 

Leak Rate Calculations 

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. Owners or 

operators who wish to exclude purged 

refrigerants that are destroyed from 

annual leak rate calculations must 

maintain records on-site to support the 

amount of refrigerant claimed as sent for 

destruction. Records shall 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 shall include flow rate, quantity 

or concentration of the refrigerant in the 

vent stream, and periods of purge flow. 

In addition, the owners or operators 

who wish to exclude purged refrigerants 

that are destroyed from annual leak rate 

calculations must maintain on-site and 

submit to EPA, within 60 days after the 

first time such exclusion is used by that 

facility, the following information: 

(i) The identification of the facility 

and a contact person, including the 

address and telephone number; 

(ii) A general description of the 

refrigerant appliance, focusing on 

aspects of the appliance relevant to the 

purging of refrigerant and its 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. 

h. Determination of Full Charge 

EPA has previously defined full 

charge as the amount of refrigerant 

required for normal operating 

characteristics and conditions of the 

appliance as determined by using one of 

the following four methods or a 

combination of one of the following four 

methods: (1) The appliance 

manufacturers’ determination of the 

correct full charge for the appliance; (2) 

Determining the full charge by 

appropriate calculations based on 

component sizes, density of refrigerant, 

volume of piping, and other relevant 

considerations; (3) The use of actual 

measurements of the amount of 

refrigerant added or evacuated from the 

appliance; and/or (4) The 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, 

and where records are maintained in 

accordance with § 82.166(q). 

Owners or operators choosing to 

determine the full charge as defined in 

§ 82.152 of an affected appliance by 

using an established range or using that 

methodology in combination with other 

methods for determining the full charge 

defined in the following information: (1) 

The identification of the owner or 

operator of the appliance; (2) The 

location of the appliance; (3) The 

original range for the full charge of the 

appliance, its midpoint, and how the 

range was determined; (4) Any and all 

revisions of the full charge range and 

how they were determined; and (5) The 

dates such revisions occurred. These 

records are required to be maintained 

on-site at the facility in which the 

appliance is located for a minimum of 

three years. 

2. Retrofit/Retire Using Lower OzoneDepleting Potential (ODP) Refrigerants 

In the NPRM, EPA proposed to amend 

§ 82.156(i)(6) to incorporate a 

requirement that was discussed in the 

preamble to the May 14, 1993 final rule 

but that was inadvertently excluded 

from the regulatory text. In the preamble 

to the final rule, EPA indicated that if 

the owners or operators elect to retrofit 

or retire an appliance rather than repair 

leaks that are above the applicable 

allowable leak rate, the owners or 

operators must use a substitute with a 

lower ODP than the original refrigerant 

(58 FR 28680; May 14, 1993). 

EPA received comments stating that 

the replacement of leaking appliances 

with more efficient appliances should 

yield significant environmental benefits, 

and the Agency should not require 

further environmental benefits by 

limiting the types of refrigerant that may 

be used (i.e., requiring retrofit or 

replacement with a lower ODP 

refrigerant). Commenters also requested 

that the Agency address what the owner 

or operator should do when the only 

available substitute does not have a 

lower ODP and consider exempting 

systems using refrigerants with an ODP 

of zero. 

EPA supports the use of higher 

efficiency appliances whenever 

possible. The Agency also believes that 

a requirement for owners or operators to 

retrofit or replace leaking appliances 

with a refrigerant with a lower ODP is 

important to minimize the use of 

refrigerants that are potentially more 

harmful to the stratospheric ozone layer. 

It would be environmentally unsound to 

exempt owners or operators from 

repairing leaks on the grounds that they 

will retrofit or replace the leaky 

appliance if the replacement refrigerant 

would pose an equivalent or even a 

greater threat to the stratospheric ozone 

layer. EPA also believes that in many 

instances older appliances that were 

designed to use ozone-depleting 

refrigerants (especially CFCs) are less 

efficient than newer HCFC and HFC 

appliances that are currently available. 

Therefore, EPA has modified the 

regulatory text to ensure that only a 

substitute with a lower or equivalent 

ODP is used. 

EPA has amended § 82.156(i)(6) to 

incorporate the requirement to retrofit 

with a lower ODP refrigerant, as 

originally discussed in the preamble to 

the May 14, 1993 final rule (58 FR 

28680). In accordance with the amended 

§ 82.156(i)(6), owners or operators who 

elect to retire or retrofit an appliance 

rather than repair leaks that are above 

the applicable allowable leak rate, must 

use a refrigerant or substitute with a 

lower ODP than the original refrigerant. 

Owners and operators still retain the 

option to either retrofit/retire the 

appliance or repair the existing leaks in 

accordance with the existing 

requirements at § 82.156(i)(6) for 

industrial process refrigeration and 

§§ 82.156(i)(1)(i), (i)(5)(i), (i)(6), and 

(i)(9) for commercial refrigeration and 

comfort cooling appliances. 

3. Minor Clarifications 

EPA proposed to modify the text 

throughout § 82.156(i) and § 82.166(n) 

1988 Federal Register / Vol. 70, No. 7 / Tuesday, January 11, 2005 / Rules and Regulations 

and (o) to substitute the word ‘‘retire’’ 

for the word ‘‘replace’’ and to add 

‘‘operators’’ where the regulation 

inadvertently refers solely to owners in 

order to better describe the activities 

that are discussed and to clarify that the 

requirements are applicable to both 

owners and operators (63 FR 32071; 

June 11, 1998). EPA also proposed to 

modify § 82.156(i)(3) which requires 

owners and operators to exercise sound 

professional judgement and to perform 

verification tests, to clarify that it 

applies to all owners and operators of 

industrial process refrigeration 

appliances and not just to those who are 

granted additional time to complete 

repairs. At the same time, EPA proposed 

to clarify that the paragraph applies to 

owners and operators of federallyowned commercial refrigeration 

appliances and of federally-owned 

comfort cooling appliances who are 

granted additional time to repair under 

paragraphs (i)(1) and (i)(5). EPA 

requested comment on these proposed 

changes regarding whether the changes 

would improve the clarity and 

readability of the regulatory text. EPA 

received general comments stating 

uncertainly with interpretation of the 

leak repair required practices at § 82.156 

for leak repair; however, the Agency did 

not receive any negative or controversial 

comments specific to the request for 

comments concerning the proposed 

minor clarifications. 

As proposed, EPA has modified the 

text throughout § 82.156(i) and 

§ 82.166(n) and (o)(4) to substitute the 

word ‘‘retire’’ for the word ‘‘replace’’ 

and to add ‘‘operators’’ where the 

regulation inadvertently refers solely to 

owners. EPA deems these changes as 

necessary, because as explained in the 

NPRM the term ‘‘retire’’ better describes 

the activities that are discussed and the 

requirements are applicable to both 

appliance owners and operators. 

As proposed, EPA has modified 

paragraph § 82.156(i)(3) which requires 

owners and operators to exercise sound 

professional judgement, to clarify that 

‘‘sound professional judgment’’ applies 

to all owners and operators of industrial 

process refrigeration appliances, 

federally-owned commercial 

refrigeration appliances, and federallyowned comfort cooling appliances and 

not just to those who are granted 

additional time under paragraphs 

(i)(1)(i), (i)(2)(i), and (i)(5). 

EPA has made minor clarifying 

changes to the regulatory text at 

§ 82.156(i)(3)(i) and (ii) by specifically 

stating that the requirements apply to 

owners and or operators of federallyowned comfort cooling and commercial 

appliances. EPA has also specifically 

stated, in § 82.156(i)(3)(i), that the 

exemption from the verification 

requirement is applicable in instances 

when the owners or operators will 

retrofit or retire the industrial process 

refrigeration equipment, federallyowned commercial refrigeration 

appliance, or federally-owned comfort 

cooling appliance (formerly included 

only by reference to paragraph (i)(6)). 

In addition, EPA has amended 

§ 82.156(i)(3)(ii) and (i)(6)(i) to provide 

owners and operators of industrial 

process refrigeration appliances, 

federally-owned commercial 

refrigeration appliances, or federallyowned comfort cooling appliances who 

have been unsuccessful in their repair 

attempts, and therefore are switching to 

a retrofit/retirement mode, 30 days from 

leak discovery to prepare and one year 

to execute a retrofit/retirement plan. 

EPA recognizes the need to provide the 

owners or operators with sufficient time 

to develop and implement retrofit or 

retirement plans; therefore, the 

reference to the date of the failure to 

verify that repairs have been 

successfully completed has been 

eliminated. By deleting this reference, 

owners or operators have 30 days from 

the verification test failure to develop a 

retrofit/retirement plan, and one year 

from the plan’s date to complete the 

retrofit or retirement (or such longer 

time periods as may apply under 

§ 82.156(i)(7) and (i)(8)). In addition, 

EPA has added the term ‘‘comfort 

cooling’’ to § 82.156(i)(5) to remove any 

ambiguity as to the type of appliance 

that is applicable to this subparagraph. 

EPA has also made minor changes to 

the reporting and recordkeeping 

requirements throughout § 82.166(n) 

and (q). EPA has clarified that the 

reporting requirements of paragraphs 

(n), (n)(1), (n)(2), and (n)(3) are only 

required when specified under § 82.156. 

EPA has restated the required contents 

of retrofit or retirement plans 

throughout § 82.166(n). EPA has also 

clarified § 82.166(q) by stating that 

owners or operators who choose to 

determine the ‘‘full charge,’’ as defined 

at § 82.152, of an appliance by using an 

established range or using that 

methodology in combination with other 

methods for determining the full charge 

must maintain the specified information 

identifying the appliance and the 

methodology used to determine the 

‘‘full charge.’’ 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866 (58 FR 

51735 (October 4, 1993)) the Agency 

must determine whether the regulatory 

action is ‘‘significant’’ and therefore 

subject to OMB review and the 

requirements of the Executive Order. 

The Order defines ‘‘significant 

regulatory action’’ as one that is likely 

to result in a rule that may: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order. 

It has been determined that this rule 

is not a ‘‘significant regulatory action’’ 

under the terms of Executive Order 

12866 and is therefore not subject to 

Executive Order 12866 review. 

B. Paperwork Reduction Act 

The Office of Management and Budget 

(OMB) has previously approved the 

information collection requirements 

contained in the existing regulations at 

40 CFR part 82, subpart F under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. and has 

assigned OMB Control Number 2060– 

0256, EPA ICR number 1626.07. A copy 

of the OMB approved Information 

Collection Request (ICR) may be 

obtained from Susan Auby, Collection 

Strategies Division; U.S. Environmental 

Protection Agency (2822T); 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460 or by calling (202) 566–1672. 

This action does not impose any new 

information collection burden beyond 

the already-approved ICR. This final 

rule amends the leak repair reporting 

and recordkeeping requirements of 

§ 82.166, without imposing additional 

requirements. 

Burden means the total time, effort, or 

financial resources expended by persons 

to generate, maintain, retain, or disclose 

or provide information to or for a 

Federal agency. This includes the time 

needed to review instructions; develop, 

Federal Register / Vol. 70, No. 7 / Tuesday, January 11, 2005 / Rules and Regulations 1989 

acquire, install, and utilize technology 

and systems for the purposes of 

collecting, validating, and verifying 

information, processing and 

maintaining information, and disclosing 

and providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements; train personnel to be able 

to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transmit or otherwise 

disclose the information. 

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 40 

CFR are listed in 40 CFR part 9. 

C. Regulatory Flexibility Act 

EPA has determined that it is not 

necessary to prepare a regulatory 

flexibility analysis in connection with 

this final rule. For purposes of assessing 

the impacts of today’s rule on small 

entities, small entity is defined as: (1) A 

small business as defined by the Small 

Business Administration’s regulations at 

13 CFR 121.201; (2) a small 

governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

population of less than 50,000; and (3) 

a small organization that is any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

EPA is finalizing this rule to clarify 

how the leak repair requirements that 

implement the venting prohibition of 

Clean Air Act, section 608(c)(2) apply to 

substitutes for class I and class II ODS 

used in the refrigerant and airconditioning appliances. The need for 

and the goal of this action is to reduce 

emissions of class I and class II ODS and 

their substitutes to the lowest 

achievable level consistent with section 

608 of the Clean Air Act. Public 

comments submitted in response to the 

June 11, 1998 NPRM (63 FR 32043) 

raised concerns over the regulation of 

substitutes that do not contribute to the 

depletion of stratospheric ozone, and 

the extension of the leak repair 

requirements to appliances using such 

substitutes. Commenters also requested 

clarification of compliance scenarios 

that were presented in the NPRM. 

As discussed in detail above, EPA is 

not finalizing the proposed changes to 

lower the leak rate and extend the 

requirements to appliances using 

substitutes that do not contain an ODS. 

EPA has also made editorial changes to 

clarify the compliance scenarios 

without changing their applicability, in 

order to remain consistent with the leak 

repair required practices. Therefore, the 

remainder of this rule results in a 

clarification of the existing leak repair 

requirements as they apply to 

substitutes that consist of an ODS. 

EPA performed a detailed screening 

analysis in 1992 of the impact of the 

recycling regulation for ozone-depleting 

refrigerants on small entities that may 

be impacted by this rulemaking such as 

owners or operators of commercial 

refrigeration appliances (such as, small 

independent grocers and warehouses), 

comfort cooling appliances (such as 

small residential and office buildings), 

and industrial process refrigeration 

appliances. The methodology of this 

analysis is discussed at length in the 

May 14, 1993 regulation (58 FR 28710). 

That analysis showed that recovery of 

refrigerants during repair is costeffective due in part to the increased 

cost of ozone-depleting refrigerants. 

EPA has updated that analysis to 

examine the impact of the recycling 

regulation for substitutes for all aspects 

of the June 11, 1998 NPRM (63 FR 

32044). EPA is finalizing the NPRM in 

three separate actions (i.e., venting 

prohibition and substitutes sales 

restriction (69 FR 11946; March 12, 

2004), certification of refrigerant 

recovery and recycling equipment, and 

leak repair requirements). The 

methodology for the updated analysis is 

the same as for the initial 1992 analysis, 

except EPA has also considered the 

changing market share of HFC 

equipment and compliance with the 

venting prohibition that would occur in 

the absence of the rule. This approach 

makes the screening analysis more 

consistent with the cost-benefit analysis 

discussed above. In the updated 

screening analysis, EPA estimates that 

118 small businesses may incur 

compliance costs in excess of 1% of 

their sales, while 39 small businesses 

may incur compliance costs in excess of 

3% of their sales for all aspects of the 

refrigerant recovery and recycling rule 

when taking all aspects of the rule 

under consideration (i.e., venting 

prohibition and sales restriction, 

refrigerant recycling and recovery 

equipment, and leak repair 

requirements). These numbers 

respectively represent 0.1% and 0.03% 

of the 122,416 small businesses that 

EPA estimates are affected by 

finalization of all three components of 

the NPRM. 

EPA has concluded that when 

isolating portions of the analysis dealing 

with the clarification of the leak repair 

requirements for appliances using 

substitutes consisting of an ODS, that 

today’s rulemaking will not have a 

significant economic impact on a 

substantial number of small entities. 

Since this rule does not finalize the 

proposal to extend the leak repair 

reporting and recordkeeping 

requirements, as summarized above in 

Section D. ‘‘Recordkeeping for Leak 

Repair,’’ to appliances containing 50 

pounds or more of a non-ODS 

substitutes, the remainder of this rule is 

viewed as a clarification of how the leak 

repair requirements for ODS refrigerants 

apply to appliances using ODS 

substitutes. With this rulemaking EPA is 

stating that regulations affecting 

appliances using ODSs apply to 

refrigerants and substitutes alike, if they 

consist whole or in part of an ODS. In 

addition, it is assumed that ODS 

substitutes are replacing refrigerants 

whose manufacture and import is 

banned, restricted, or currently 

undergoing phaseout under the EPA 

phaseout regulations (40 CFR 82, part 82 

subpart A). Therefore EPA assumes an 

impact of less than 1% upon owners or 

operators of appliances with refrigerant 

charges of 50 pounds or more, including 

the 0.1% and 0.03% of the 122,416 

small businesses that EPA estimates 

would have been affected by finalizing 

all three components of the NPRM. 

Although this final rule will not have 

a significant economic impact on a 

substantial number of small entities, 

EPA nonetheless has tried to reduce the 

impact of this rule on small entities. 

EPA has made numerous efforts to 

involve small entities in the rulemaking 

process and to incorporate flexibility 

into the proposed rule for small entities, 

where appropriate. Efforts to involve 

small entities include formal and 

informal stakeholder meetings, which 

included several trade groups 

representing small businesses, and a 

number of individual meetings with 

both small businesses and associations 

representing small businesses. EPA has 

also met with industry groups 

representing the commercial grocery 

and supermarket sectors. EPA has 

accepted and considered all comments 

and suggestions from trade 

organizations in finalizing this rule, 

regardless if the comments were 

received outside of the comment period. 

EPA has also developed outreach 

materials, including fact sheets which 

are available online and via the Ozone 

Hotline, to help small businesses to 

comply with the existing refrigerant 

recycling regulations and the 

prohibition on venting of both ozonedepleting refrigerants and their 

substitutes. Moreover, the proposed rule 

grants to small businesses working with 

1990 Federal Register / Vol. 70, No. 7 / Tuesday, January 11, 2005 / Rules and Regulations 

substitutes the same flexibility that was 

granted to small businesses working 

with CFC and HCFC refrigerants (58 FR 

28667–28669, 28712). 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local, 

and tribal governments and the private 

sector. Under section 202 of the UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘Federal mandates’’ that may 

result in expenditures to State, local, 

and tribal governments, in the aggregate, 

or to the private sector of $100 million 

or more in any one year. Before 

promulgating an EPA rule for which a 

written statement is needed, section 205 

of the UMRA generally requires EPA to 

identify and consider a reasonable 

number of regulatory alternatives and 

adopt the least costly, most costeffective or least burdensome alternative 

that achieves the objectives of the rule. 

The provisions of section 205 do not 

apply when they are inconsistent with 

applicable law. Moreover, section 205 

allows EPA to adopt an alternative other 

than the least costly, most cost-effective 

or least burdensome alternative if the 

Administrator publishes with the final 

rule an explanation why that alternative 

was not adopted. Before EPA establishes 

any regulatory requirements that may 

significantly or uniquely affect small 

governments, including tribal 

governments, it must have developed 

under section 203 of the UMRA a small 

government Agency plan. The plan 

must provide for notifying potentially 

affected small governments, enabling 

officials of affected small governments 

to have meaningful and timely input in 

the development of EPA regulatory 

proposals with significant Federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

EPA has determined that this rule 

does not contain a Federal mandate that 

may result in expenditures of $100 

million or more for State, local, and 

tribal governments, in the aggregate, or 

the private sector in any one year. This 

rule is not expected to have a high cost 

because it supplements the statutory 

self-effectuating prohibition against 

venting refrigerants by ensuring that 

certain service practices are conducted 

that reduce emissions of ozonedepleting refrigerants and their 

substitutes. Thus, today’s rule is not 

subject to the requirements of sections 

202 and 205 of the UMRA. EPA has also 

determined that this rule contains no 

regulatory requirements that might 

significantly or uniquely affect small 

governments. Thus, today’s rule is not 

subject to the requirements of section 

203 of the UMRA. 

E. Executive Order 13132: Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that 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.’’ 

This final rule 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, as specified in 

Executive Order 13132. Thus, Executive 

Order 13132 does not apply to this rule. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ This final rule does not 

have tribal implications, as specified in 

Executive Order 13175. Today’s rule 

does not significantly or uniquely affect 

the communities of Indian tribal 

governments. Thus, Executive Order 

13175 does not apply to this rule. 

G. Executive Order 13045: Protection of 

Children From Environmental Health & 

Safety Risks 

Executive Order 13045: ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997) applies to any rule that: 

(1) Is determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

This final rule is not subject to the 

Executive Order because it is not 

economically significant as defined in 

Executive Order 12866, and because the 

Agency does not have reason to believe 

the environmental health or safety risks 

addressed by this action present a 

disproportionate risk to children. This 

rule amends the leak repair requires for 

appliances using substitutes consisting 

of an ozone-depleting substance, which 

in turn protects human health and the 

environment from increased amounts of 

UV radiation and increased incidence of 

skin cancer. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not subject to Executive 

Order 13211, ‘‘Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use’’ (66 

FR 28355; May 22, 2001) because it is 

not a significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, section 12(d) (15 U.S.C. 272 

note) directs EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. The NTTAA directs 

EPA to provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. This 

rulemaking does not involve technical 

standards; therefore, EPA did not 

consider the use of any voluntary 

consensus standards in this rulemaking. 

J. The Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

Agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

ER11ja05.010</GPH> ER11ja05.011</GPH>

Federal Register / Vol. 70, No. 7 / Tuesday, January 11, 2005 / Rules and Regulations 1991 

Congress and to the Comptroller General ■ 2. Section 82.152 is amended by maintained in accordance with 


of the United States. EPA will submit a revising the definition of ‘‘Full charge’’ § 82.166(q).


report containing this rule and other and by adding a definition for ‘‘Leak 
 * * * * * 

required information to the U.S. Senate, rate’’ in alphabetical order to read as Leak rate means the rate at which an 

the U.S. House of Representatives, and follows: appliance is losing refrigerant, measured the Comptroller General of the United between refrigerant charges. The leak States prior to publication of the rule in § 82.152 Definitions. rate is expressed in terms of the the Federal Register. A major rule * * * * * percentage of the appliance’s full charge cannot take effect until 60 days after it Full charge means the amount of that would be lost over a 12-month 

is published in the Federal Register. refrigerant required for normal operating period if the current rate of loss were to This action is not a ‘‘major rule’’ as characteristics and conditions of the continue over that period. The rate is defined by 5 U.S.C. 804(2). It will appliance as determined by using one or calculated using only one of the become effective March 14, 2005. a combination of the following four following methods for all appliances 

List of Subjects in 40 CFR Part 82 methods: located at an operating facility. 

(1) Use the equipment manufacturer’s (1) Method 1. (i) Step 1. Take the Environmental protection, Air determination of the correct full charge number of pounds of refrigerant added pollution control, Reporting and for the equipment; to the appliance to return it to a full recordkeeping requirements. (2) Determine the full charge by charge and divide it by the number of 

Dated: December 29, 2004. making appropriate calculations based pounds of refrigerant the appliance 

Michael O. Leavitt, on component sizes, density of normally contains at full charge; 

Administrator. (ii) Step 2. Take the shorter of the refrigerant, volume of piping, and other number of days that have passed since ■ For the reasons stated in the preamble, relevant considerations; the last day refrigerant was added or 365 title 40, chapter I, part 82, of the Code of (3) Use actual measurements of the days and divide that number by 365 Federal Regulations is amended as amount of refrigerant added or days; follows: evacuated from the appliance; and/or (iii) Step 3. Take the number 

PART 82—[AMENDED] (4) Use an established range based on calculated in Step 1. and divide it by the

the best available data regarding the number calculated in Step 2.; and 

■ 1. The authority citation for part 82 normal operating characteristics and (iv) Step 4. Multiply the number continues to read as follows: conditions for the appliance, where the calculated in Step 3. by 100 to calculate 

Authority: 42 U.S.C. 7414, 7601, 7671– midpoint of the range will serve as the a percentage. This method is 

7671q. full charge, and where records are summarized in the following formula: 

Leak rate = pounds of refrigerant added 365 days/year 

(% per year) × 100% pounds of refrigerant × shorter of: # days since 

in full charge refrigerant last added or 365 days 

(2) Method 2. (i) Step 1. Take the sum last repaired, if that period is less than (iii) Step 3. Multiply the result of Step 

of the quantity of refrigerant added to one year), 2. by 100 to obtain a percentage. This 

the appliance over the previous 365-day (ii) Step 2. Divide the result of Step method is summarized in the following 

period (or over the period that has 1. by the quantity (e.g., pounds) of formula: 

passed since leaks in the appliance were refrigerant the appliance normally 

contains at full charge, and 

pounds of refrigerant added over past 365 days 

(or since leaks were last repaired, 

Leak rate = if that period is less than one year) 

(% per year) pounds of refrigerant in full charge 

× 100% 

* * * * * of federally-owned comfort cooling The follow-up verification test shall be 

■ 3. Section 82.156 is amended by appliances who are granted additional conducted within 30 days of completing 

revising paragraphs (i)(3) introductory time under paragraphs (i)(1) or (i)(5) of the repairs or within 30 days of bringing 

text, (i)(3)(i), (i)(3)(ii), (i)(5) introductory this section, must have repairs the appliance back on-line, if taken offtext, (i)(6) introductory text, and (i)(6)(i), performed in a manner that sound line, but no sooner than when the 

to read as follows: professional judgment indicates will appliance has achieved normal 

bring the leak rate below the applicable operating characteristics and conditions. § 82.156 Required practices. allowable leak rate. When an industrial When repairs have been conducted 

* * * * * process shutdown has occurred or when without an industrial process shutdown 

(i) * * * repairs have been made while an or system mothballing, an initial 

(3) Owners or operators of industrial appliance is mothballed, the owners or verification test shall be conducted at 

process refrigeration equipment and operators shall conduct an initial the conclusion of the repairs, and a 

owners or operators of federally-owned verification test at the conclusion of the follow-up verification test shall be 

commercial refrigeration equipment or repairs and a follow-up verification test. conducted within 30 days of the initial 

1992 Federal Register / Vol. 70, No. 7 / Tuesday, January 11, 2005 / Rules and Regulations 

verification test. In all cases, the followup verification test shall be conducted 

at normal operating characteristics and 

conditions, unless sound professional 

judgment indicates that tests performed 

at normal operating characteristics and 

conditions will produce less reliable 

results, in which case the follow-up 

verification test shall be conducted at or 

near the normal operating pressure 

where practicable, and at or near the 

normal operating temperature where 

practicable. 

(i) If the owners or operators of 

industrial process refrigeration 

equipment takes the appliance off-line, 

or if the owners or operators of 

federally-owned commercial 

refrigeration or of federally-owned 

comfort cooling appliances who are 

granted additional time under 

paragraphs (i)(1) or (i)(5) of this section 

take the appliance off-line, they cannot 

bring the appliance back on-line until 

an initial verification test indicates that 

the repairs undertaken in accordance 

with paragraphs (i)(1)(i), (ii), (iii), or 

(i)(2)(i) and (ii), or (5)(i), (ii), and (iii) of 

this section have been successfully 

completed, demonstrating the leak or 

leaks are repaired. The owners or 

operators of the industrial process 

refrigeration equipment, federallyowned commercial refrigeration 

appliances, or federally-owned comfort 

cooling appliances are exempted from 

this requirement only where the owners 

or operators will retrofit or retire the 

industrial process refrigeration 

equipment, federally-owned commercial 

refrigeration appliance, or federallyowned comfort cooling appliance in 

accordance with paragraph (i)(6) of this 

section. Under this exemption, the 

owner or operators may bring the 

industrial process refrigeration 

equipment, federally-owned commercial 

refrigeration appliance, or federallyowned comfort cooling appliance back 

on-line without successful completion 

of an initial verification test. 

(ii) If the follow-up verification test 

indicates that the repairs to industrial 

process refrigeration equipment, 

federally-owned commercial 

refrigeration equipment, or federallyowned comfort cooling appliances have 

not been successful, the owner or 

operator must retrofit or retire the 

equipment in accordance with 

paragraph (i)(6) and any such longer 

time period as may apply under 

paragraphs (i)(7)(i), (ii) and (iii) or 

(i)(8)(i) and (ii) of this section. The 

owners and operators of the industrial 

process refrigeration equipment, 

federally-owned commercial 

refrigeration equipment, or federallyowned comfort cooling appliances are 

relieved of this requirement if the 

conditions of paragraphs (i)(3)(iv) and/ 

or (i)(3)(v) of this section are met. 

* * * * * 

(5) Owners or operators of comfort 

cooling appliances normally containing 

more than 50 pounds of refrigerant and 

not covered by paragraph (i)(1) or (i)(2) 

of this section must have leaks repaired 

in accordance with paragraph (i)(9) of 

this section if the appliance is leaking 

at a rate such that the loss of refrigerant 

will exceed 15 percent of the total 

charge during a 12-month period, except 

as described in paragraphs (i)(6), (i)(8) 

and (i)(10) of this section and 

paragraphs (i)(5)(i), (i)(5)(ii) and 

(i)(5)(iii) of this section. Repairs must 

bring the annual leak rate to below 15 

percent. 

* * * * * 

(6) Owners or operators are not 

required to repair leaks as provided in 

paragraphs (i)(1), (i)(2), and (i)(5) of this 

section if, within 30 days of discovering 

a leak greater than the applicable 

allowable leak rate, or within 30 days of 

a failed follow-up verification test, or 

after making good faith efforts to repair 

the leaks as described in paragraph 

(i)(6)(i) of this section, they develop a 

one-year retrofit or retirement plan for 

the leaking appliance. Owners or 

operators who decide to retrofit the 

appliance must use a refrigerant or 

substitute with a lower or equivalent 

ozone-depleting potential than the 

previous refrigerant and must include 

such a change in the retrofit plan. 

Owners or operators who retire and 

replace the appliance must replace the 

appliance with an appliance that uses a 

refrigerant or substitute with a lower or 

equivalent ozone-depleting potential 

and must include such a change in the 

retirement plan. The retrofit or 

retirement plan (or a legible copy) must 

be kept at the site of the appliance. The 

original plan must be made available for 

EPA inspection upon request. The plan 

must be dated, and all work performed 

in accordance with the plan must be 

completed within one year of the plan’s 

date, except as described in paragraphs 

(i)(6)(i), (i)(7), and (i)(8) of this section. 

Owners or operators are temporarily 

relieved of this obligation if the 

appliance has undergone system 

mothballing as defined in § 82.152. 

(i) If the owner or operator has made 

good faith efforts to repair leaks from 

the appliance in accordance with 

paragraphs (i)(1), (i)(2), or (i)(5) of this 

section and has decided prior to 

completing a follow-up verification test, 

to retrofit or retire the appliance in 

accordance with paragraph (i)(6) of this 

section, the owner or operator must 

develop a retrofit or retirement plan 

within 30 days of the decision to retrofit 

or retire the appliance. The owner or 

operator must complete the retrofit or 

retirement of the appliance within one 

year and 30 days of when the owner or 

operator discovered that the leak rate 

exceeded the applicable allowable leak 

rate, except as provided in paragraphs 

(i)(7) and (i)(8) of this section. 

* * * * * 

■ 10. Section 82.166 is amended by 

revising paragraphs (n), (o)(4), (o)(7), 

(o)(8), (o)(10), and paragraph (q) 

introductory text to read as follows: 

§ 82.166 Reporting and recordkeeping 

requirements. 

* * * * * 

(n) The owners or operators of 

appliances must maintain on-site and 

report to EPA Headquarters at the 

address listed in § 82.160 the 

information specified in paragraphs 

(n)(1), (n)(2), and (n)(3) of this section, 

within the timelines specified under 

§ 82.156 (i)(1), (i)(2), (i)(3) and (i)(5) 

where such reporting or recordkeeping 

is required. This information must be 

relevant to the affected appliance. 

(1) An initial report to EPA under 

§ 82.156(i)(1)(i), (i)(2), or (i)(5)(i) 

regarding why more than 30 days are 

needed to complete repairs must 

include: Identification of the facility; the 

leak rate; the method used to determine 

the leak rate and full charge; the date a 

leak rate above the applicable leak rate 

was discovered; the location of leak(s) to 

the extent determined to date; any 

repair work that has been completed 

thus far and the date that work was 

completed; the reasons why more than 

30 days are needed to complete the 

work and an estimate of when the work 

will be completed. If changes from the 

original estimate of when work will be 

completed result in extending the 

completion date from the date 

submitted to EPA, the reasons for these 

changes must be documented and 

submitted to EPA within 30 days of 

discovering the need for such a change. 

(2) If the owners or operators intend 

to establish that the appliance’s leak rate 

does not exceed the applicable 

allowable leak rate in accordance with 

§ 82.156(i)(3)(v), the owner or operator 

must submit a plan to fix other 

outstanding leaks for which repairs are 

planned but not yet completed to 

achieve a rate below the applicable 

allowable leak rate. A plan to fix other 

outstanding leaks in accordance with 

§ 82.156(i)(3)(v) must include the 

following information: The 

identification of the facility; the leak 

rate; the method used to determine the 

leak rate and full charge; the date a leak 

Federal Register / Vol. 70, No. 7 / Tuesday, January 11, 2005 / Rules and Regulations 1993 

rate above the applicable allowable leak 

rate was discovered; the location of 

leak(s) to the extent determined to date; 

and any repair work that has been 

completed thus far, including the date 

that work was completed. Upon 

completion of the repair efforts 

described in the plan, a second report 

must be submitted that includes the 

date the owner or operator submitted 

the initial report concerning the need 

for additional time beyond the 30 days 

and notification of the owner or 

operator’s determination that the leak 

rate no longer exceeds the applicable 

allowable leak rate. This second report 

must be submitted within 30 days of 

determining that the leak rate no longer 

exceeds the applicable allowable leak 

rate. 

(3) Owners or operators must 

maintain records of the dates, types, and 

results of all initial and follow-up 

verification tests performed under 

§ 82.156(i)(3). Owners or operators must 

submit this information to EPA within 

30 days after conducting each test only 

where required under § 82.156 (i)(1), 

(i)(2), (i)(3) and (i)(5). These reports 

must also include: Identification and 

physical address of the facility; the leak 

rate; the method used to determine the 

leak rate and full charge; the date a leak 

rate above the applicable allowable leak 

rate was discovered; the location of 

leak(s) to the extent determined to date; 

and any repair work that has been 

completed thus far and the date that 

work was completed. Submitted reports 

must be dated and include the name of 

the owner or operator of the appliance, 

and must be signed by an authorized 

company official. 

* * * * * 

(o) * * * 

(4) The date a leak rate above the 

applicable allowable rate was 

discovered. 

* * * * * 

(7) A plan to complete the retrofit or 

retirement of the system; 

(8) The reasons why more than one 

year is necessary to retrofit or retire the 

system; 

* * * * * 

(10) An estimate of when retrofit or 

retirement work will be completed. If 

the estimated date of completion 

changes from the original estimate and 

results in extending the date of 

completion, the owner or operator must 

submit to EPA the new estimated date 

of completion and documentation of the 

reason for the change within 30 days of 

discovering the need for the change, and 

must retain a dated copy of this 

submission. 

* * * * * 

(q) Owners or operators choosing to 

determine the full charge as defined in 

§ 82.152 of an affected appliance by 

using an established range or using that 

methodology in combination with other 

methods for determining the full charge 

as defined in § 82.152 must maintain the 

following information: 

* * * * *


[FR Doc. 05–429 Filed 1–10–05; 8:45 am] 


BILLING CODE 6560–50–P