### Sent electronically

February 14, 2011

EPA Air Docket Mailcode 6102T 1200 Pennsylvania Avenue, NW Washington, DC 20460

Re: Protection of Stratospheric Ozone: Amendments to the Section 608 Leak Repair Requirements [EPA

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The American Chemistry Council (ACC) 1 

### appreciates the opportunity to submit comments on Environmental Protection Agency's (EPA) Proposed Amendments to the Section 608 Leak Repair Requirements (75 Fed. Reg. at 78558
, December 15
, 2010).

Our detailed comments are attached for your review. If you would like to discuss any of the comments in more detail, please contact me at (202) 249

- 6411 or lorraine_gershman@americanch emistry.com

. Very truly yours,

Lorraine Krupa Gershman Director, American Chemistry Council

1 The American Chemistry Council (ACC) represents the leading companies engaged in the business of chemistry. ACC members apply the science of chemistry to make innovative products and services that make people's lives better, healthier and safer. ACC is committed to improved environmental, health and safety performance through Responsible Care ® , common sense advocacy designed to address major public policy issues, and health and environmental research and product testing. The business of chemistry is a $674 billion enterprise and a key element of the nation's economy. It is one of the natio n’s largest exporters, accounting for ten cents out of every dollar in U.S. exports. Chemistry companies are among the largest investors in research and development. Safety and security have always been primary concerns of ACC members, and they have intens ified their efforts, working closely with government agencies to improve security and to defend against any threat to the n ation’s critical infrastructure.Comments of the American Chemistry Council

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1 Executive Summary
EPA has proposed a number of changes to the leak repair provisions of the ozone

- depleting substances (ODS) regulations at 40 CFR Part 82. Based on EPA‟s estimates, ACC believes that these changes will result in significant costs with little related benefit.
We are concerned that many of the proposed changes in the name of “streamlining” the process actually result in less flexibility and higher costs to industry. This proposal emphasize s the use of substitutes rather than on reducing emissions. These two goals are not necessarily the same.
We are concerned that EPA has added additional costly requirements, while removin g some requ irements that have already been widely adopted by industry. These costly requirements include removing the annualized method (Method 1) for calculating emissions leaks, adding a requirement that a follow

- up verification test take place at least 24 hours after repairs have been made, removing the 120

- day exemption for when an industrial process shutdown is required to repair a leak, and adding a requirement to retrofit or replace the entire industrial process refrigeration system after 3 failed l eak verification attempts within six months. All of these changes come with additional costs to owners/operators.
We urge EPA to remove some of the complexity from the final rule to continue to allow industry to minimize emissions in a cost

- effective man ner.

Preamble
At page 78,560 of the preamble to the December 15, 2010 Federal Register notice, EPA states:

EPA stated in Section F.

— Required Practices of the original refrigerant recycling final rule (May 14, 1993; 58 FR 28660) that „„knowingly venting is any release that permits a class I or class II substance to enter the environment and that takes place during the maintenance, service, repair, or disposal of air

- conditioning or refrigeration equipment.‟‟ In other words, the leak repair requirements do n ot allow owners or operators to ignore leaks from appliances just because the leak repair trigger rate has not been breached. The aim of the leak repair requirements is to reduce emissions of refrigerants from appliances by mandating repairs that adequatel y address the leaks within the appliance as a whole, within a set period of time ( i.e., 30 days).
Similarly, on page 78,570, EPA states:
The proposed 10 and 20 percent leak rates are not viewed by EPA as the optimal leak rate that can be achieved by appl iances at the point of original installation or as the appliance ages. Nor does the Agency view the leak repair trigger rates as an exemption to the CAA statutory venting prohibition.
EPA appears to be claiming that a failure to repair a known leak from a n appliance, when the leak rate is below the repair trigger level, constitutes “knowingly venting” the refrigerant. In other words, using a leaking appliance that is not required to be repaired under Subpart F violates the CAA‟s venting prohibition.Comments of the American Chemistry Council

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2 Howev er, EPA is mistaken. Section 608(c)(1) of the Clean Air Act provides that “... it shall be unlawful for any person, in the course of maintaining, servicing, repairing, or disposing of an appliance or industrial process refrigeration, to knowingly vent or oth erwise 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. ” (emphasis added).

The statute refe rs only to maintaining, servicing, repairing, and disposing; it does not address “using” a refrigerant. Thus, the statute does not address leaking that may occur during the mere use of an appliance. Accordingly, EPA‟s preamble statements are inconsistent w ith the plain language of the statute and are incorrect.
EPA‟s proposed changes to the purpose and scope provision of Subpart F (§82.150(a)) appears to be an effort to import its misinterpretation into the regulatory leak repair requirements. EPA proposes to adopt the following language (proposed additions underlined and proposed deletions str ike through ):
The purpose and scope of this subpart is to reduce the use and emissions of ozone

- depleting substances class I and class II refrigerants and their subst itutes to the lowest achievable level and encourage the use of substitutes
, by maximizing the recapture and recycling of such ozone

depleting substances refrigerants during the use , service, maintenance, repair, and disposal of appliances and by restrictin g the sale of refrigerants consisting in whole or in part of a class I and class II ODS in accordance with Title VI of the Clean Air Act.
EPA‟s proposed addition of “use” in two places in §82.150(a) is an acknowledgement that the current language of the r ule does not support its interpretation. However, it lacks the statutory authority to make this change. As discussed above, the statutory venting prohibition does not apply to “use.”

Th us, the references to “use” in § 82.150(a) should not be adopted and, i n the preamble to the final rule, EPA should disavow its interpretation of the statute‟s “knowingly vent” provision and acknowledge that it does not apply to leaks during use of an appliance when the leak rate is less than the repair threshold.

§82.150

– Purpose and Scope
In proposed § 82.150(a)
, EPA changes the purpose statement so that it no longer intends to “reduce emissions of ... substitutes...to the lowest achievable level” but rather that it intends to “encourage the use of substitutes. ” This restateme nt loses sight of one of the original purposes of Section 608, which was not only to reduce emissions of ODS but also to minimize emissions of their substitutes, unless the substitutes did not pose a threat to the environment.Comments of the American Chemistry Council

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3 §82.152

- Definitions

D efinition of component : EPA has replaced “critical component” with “component” but in the process has, as it explains in the preamble, eliminated considerations of safety in the definition. The new definition replaces “

... will not function, will be unsafe in its intended environment, and/or will be subject to failures that would cause the industrial process served by the refrigeration appliance to be unsafe

... ” with “

... will not properly function and/or will be subject to failures.” We suggest that EPA modify the de finition to read as follows: “Component means an appliance component, such as, but not limited to, compressors, condensers, evaporators, receivers and all of its connections and subassemblies without which the appliance will not function safely and/or wil l be subject to failures.”

Definition of follow

- up verification test : The proposal requires that follow

- up verification must be conducted no earlier than 24 hours after completion of repairs , which means that facilities must pay the additional cost of a s eparate service call. This is a change from the previous regulatory language, which only specified that the verification test occur within 30 days of the completion of repairs. For many repairs, the repair technician will be able to verify that the applian ce had returned to normal operating conditions during the initial service call. To justify th e additional cost and the administrative complexity that the source must then manage for a follow

- up verification test , EPA provides no data that unrepaired leaks are more frequently found after the appliance has operated under normal conditions over an extended period of time (but no longer than 30 days) than they are found immediately after the appliance has returned to “normal operating conditions.”

T he phra sing regarding the methods of performing the tests could be interpreted to suggest that each of the verification tests listed be used. We suggest that EPA rephrase this as “Follow

- up verification test methods which may be used include , but are not limited to,

... ”

Finally, EPA has omitted from the new definition a good deal of clarifying material, without any explanation as to why it is now obsolete. The addition of a definition of “normal operating characteristics and conditions” does not replace the explan ation as to how to determine when the equipment has returned to normal operating conditions. We encourage EPA to retain the language found in the current definition of follow

- up verification tests in §82.152 that states:

Follow

- up verification tests for a ppliances from which the refrigerant charge has been evacuated means a test conducted after the appliance or portion of the appliance has resumed operation at normal operating characteristics and conditions of temperature and pressure, except in cases wher e sound professional judgment dictates that these tests will be more meaningful if performed prior to the return to normal operating characteristics and conditions. A follow

- up verification test with respect to repairs conducted without evacuation of the r efrigerant charge means a reverification test conducted after the initial verification test and usually within 30 days of normal operating conditions. Where an appliance is not evacuated, it is only necessary to conclude anyComments of the American Chemistry Council

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4 required changes in pressure, t emperature or other conditions to return the appliance to normal operating characteristics and conditions.

Definition of full charge : EPA‟s statement that it is reducing complexity by removing only an optional approach for determining a full charge is incorrect . No one is required to use a combination of methods for determining full charge. Anyone who does so probably concluded that the complexity involved was worth the effort, based on their own individual circumstan ces. EPA does not reduce the complexity of a regulation, as far as the regulated community is concerned, by removing optional alternatives.
EPA‟s approach to the recordkeeping requirement around the determination of full charge would require that owner/op erators of existing refrigeration equipment, who determined their full charge long ago and may not have retained the weights, measurements, calculations, and other records on which their conclusions were based, must now re

- determine their full charge. This repeats the entire cost of determining the full charge, plus adds a recordkeeping requirement. Further, the records will need to be kept for the life of the equipment, a point EPA does not clarify.

Definition of l eak r

ate : We believe that t he "annualizing method" (Method 1) to determine leak rate should rema in an option. Although the concept of a "true rolling average" of Method 2 is appealing, the complexity of the calculation and the associated recordkeeping has no added environmental benefit . After refrigerant has been added to an appliance
, it is importa nt that the leak rate be quickly and accurately calculated so that any required regulatory responses can be undertaken within the allotted time. To calculate the leak rate using Method 1, only two pieces of data are needed : the amount of refrigerant that was just added to the machine, and the date of the most recent previous addition. To use Method 2 is functionally more complex, requiring a rolling 365

- day window with a total of all refrigerant additions from within that window. That total changes as re frigerant additions "roll" in and out. The complexity increases as repairs are made (and verified), initially shrinking the size of the window to 1 day. It is not clear that required use of Method 2 will result in any environmental benefit, but it will certainly result in an increase in l eak r ate calculation errors and associated non

- compliances.
Linking the trigger for calculating leak rate to the last successful follow

- up verification test is a good clarification [since it clearly resets the leak rate to zero] which should be used in both options.

Definition of retrofit : We do not believe that EPA‟s proposal that all appliances be retrofitted with refrigerants with a lower ozone depleting potential ( ODP ) makes sense at this point in time. EPA should

s uggest that owners/operators retrofitting equipment consider refrigerants with a lower ODP, but not mandate replacement since there is a surplus of certain Class II refrigerants. Rather, owners and operators should be allowed to choose the refrigerant that best works for each application, accounting for supply and demand and expense of maintenance.Comments of the American Chemistry Council

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5 §82.156 Required practices
Industrial process refrigeration shutdown
EPA proposes to remove the 120

- day exemption when owners or operators of industrial proces s refrigeration appliances undergo an industrial process shutdown ( see existing Section 82.156(i)(3)(iv)). The chemical ind ustry operates many comfort cooling systems and industrial process refrigeration systems. These systems are fundamentally different and EPA should continue to regulate them in a different manner. The A gency ‟s stated efforts in this proposal

- to provide regulatory simplicity and to harmonize the requirements between comfort cooling systems and industrial process refrigeration

- fails to recognize the complexity of industrial process refrigeration systems and the complex production processes that they support. Our experience is that these systems are different in a number of ways, including :

 Industrial process refrigeration units ha ve a much higher level of integration with chemical production plants and, thus
, cannot be isolated, mothballed, and repaired in the same manner as comfort cooling systems. In many cases, planned shutdowns and associated repairs must be coordinated among the other production activities at a given site. This level of coordination and maintenance planning may require , in some cases, up to 120 days to make the repairs on larger systems without excessive disruption to interdependent manufacturing activities

.  The time required to procure a large replacement unit can extend up to a year in some cases, given the need for specialized site

- specific design for a specific industrial process in a specific location, and the planning timelines associated with the h igh cost of replacing a large unit.

 Comfort cooling systems can be shut down for repairs and in some cases can be replaced with rental units within a matter of hours. This option does not exist for most industrial process refrigeration units as these are typically "one of a kind" custom designed systems. Repairs for comfort cooling systems are also different because repairs do not typically include the engineering oversight that comes with the repair of industrial process refrigeration units due to their direct integration into the manufacturing process

.
 The shutdown of an industrial process refrigeration unit will in many cases result in the need to shut down a chemical manufacturing process. The shutdown of a process may lead to increased emissions of criteria air pollutants and resulting re

- start emissions, some of which may or may not be authorized by existing State air permitting programs and regulations. The ability to coordinate repairs of the industrial process refrigeration system with other planned shutdowns was a critical consideration in the original provision of a 120

- day repair period allowed for industrial process refrigeration, and remains a concern today.

 Industrial process refrigeration systems are typically larger and contain more r efrigerant than typical comfort cooling systems. Thus, maintenance repairs and follow

- up leak verification tests typically are more complex, which drives the need for more time to make these repairs.
Therefore, based on the inherent difference betwee n comfort cooling and industrial refrigeration systems, as well as the complexity of industrial refrigeration systems, EPA should continue to allow a minimum of 120 days to repair leaks when undergoing industrial process shutdowns.Comments of the American Chemistry Council

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6 Industrial Process Ref

rigeration Replacement
We object to the requirement in proposed § 82.156(j)(4) to replace an entire industrial process refrigeration system after three failed leak verification attempts within 6 months, and offer alternative solutions to this onerous and v ery expensive part of the proposed rule language. The proposed requirement is a disincentive to try to repair leaks in the most expeditious manner for fear of failure of three verification tests within a 6

- month timeframe. Alternative ways to achieve the environmental protection goals are noted below:
1. In these cases, the rule should require the replacement of the specific component (s) that causes the leak, not the retrofit or retirement of the entire industrial process refrigeration system.

2. Th e failure of an initial verification test, where refrigerant is not involved in the test, should not be considered as one of the three "failures

. "
3. The owner /operator should be provided a full 180 days to address leaks that are technically difficult to resolve without being subject to penalty for failing to repair the leak during one of the first three leak repair attempts. This would allow additional repair attempts to be made during the 180

- day period without a mandatory requirement to retire or retrofit the appliance after three failed verification tests. This time period would also minimize the potential misconduct of repair companies from making inferior repairs in an attempt to sell new units instead.
ACC requests that t he proposed rule text be modified as follow s:

Owners and /or operators of commercial refrigeration or industrial process refrigeration appliances must repair the leaking component or retire or retrofit the appliance to use a refrigerant or substitute with a lower ozone depleting potential (ODP), i n accordance with paragraph (l) of this section, if the appliance has experienced at least three failed verification tests within a consecutive six

- month period and the owner/operator has not been able to repair the existing leak(s) within 180 days of a fa iled verification test.

Other specific comments are provided on the proposed changes to § 82.156 below:
Industrial Process Refrigeration
§82.156(i) and (j): We are concerned with the requirement that all leaks must be repaired once the leak repair th reshold has been reached. It is not always feasible to find, let alone repair, all of the leaks. We suggest that, rather than requiring all leaks to be repaired, EPA instead require facilities to “make a good

faith effort to repair all leaks” and keep do cumentation of such repair efforts.
§ 82.156(j)(1)

- EPA should revise the sentence to remove the word "immediately" from the regulatory requirement. A suggested revision is: " Owners and/or operators shall conduct an initial verification test

as soon as p racticable after conclusion of the repairs

. ” This provides the owner/operator flexibility as to when the initial verification test is conducted.Comments of the American Chemistry Council

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7 § 82.156(j)(2)

- EPA should remove the requirement to conduct a follow

- up verification test no sooner than 2 4 hours after repair and recharge of the appliance. Although we support a small time gap between the initial verification and the follow

- up verification, this requirement should be modified to allow the owner/operator to conduct the follow

- up verification test as soon as the appliance has achieved normal operating conditions after a repair. A 24

- hour waiting period should not be added to the requirements since this eliminates the possibility of making a repair and conducting the follow

- up verification lat er during the same work day by maintenance personnel who are familiar with the repairs to the equipment. This also allows owners/operators to perform the necessary verification of repairs while minimizing additional costs associated with extra service fee s. In addition, EPA should allow the use of professional judgment regarding secondary follow

- up verification and when this should occur for industrial process refrigeration systems because work activities
, such as the replacement of insulation over pipes
, need to occur shortly after the system returns to operation.
§ 82.156(l)(1)

- Since c omplex industrial process refrigeration systems are in many cases closely integrated with complex manufacturing process, and the ir replacement or retrofit typically require s capital expenditures along with detailed engineering, equipment procurement, construction, and a process shutdown to incorporate the new system into the existing operations
, t he schedule portion of the dated retrofit and retirement plan should be revised back to a 1

- year time frame to either permanently retire the entire appliance from operation or retrofit the appliance for use with a substitute with a lower ozone

depleting potential
Therefore, EPA should continue to maintain a 1

- year period to either pe rmanently retire or retrofit an industri al process refrigeration unit to allow industry adequate time to perform engineering analysis, identify replacement systems, acquire the equipment, adequately plan and execute any shutdown activities while minimizing emissions, and plan for additional work that may be required during the shutdown period.

Comfort Cooling Appliances
§ 82.156(i)

- The leak rate should not be lowered from 15 percent to 10 percent for comfort cooling appliances since these systems typica lly have a full charge not much greater than 50 pounds and the amount of refrigerant that leaks would not be a large amount at either 15 or 10 percent. In many cases, we would not notice degraded performance until the system has lost more than 15% of its charge.
§ 82.156(i)(1)

- EPA should revise the sentence to remove the word immediately from the regulatory requirement. A suggested revision is: " Owners or operators shall conduct an initial verification test as soon as p racticable after conclusion of th e repairs." This language provides the owner/operator with flexibility as to when the initial verification test is conducted.
§ 82.156(i)(2)

- EPA should remove the requirement to conduct a follow

- up verification test no sooner than 24 hours after repair and recharge of the appliance. Although we support a small time gap between the initial verification and the follow

- up verification, this requirement should be slightly modified to allow the owner/operator to conduct the follow

- up verification test as soo n as the appliance has achievedComments of the American Chemistry Council

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8 normal operating conditions after a repair. A 24

- hour waiting period should not be added to the requirements since this eliminates the possibility of making a repair and conducting the follow

- up verification during the same work day by maintenance personnel who are familiar with the repairs to the equipment. This also allows owners/operators to perform the necessary verification of repairs while minimizing additional costs associated with extra service fees.

§ 82.166 Repo rting and recordkeeping requirements
We strongly urge EPA to provide at least a 2

- year phase

- in to the recordkeeping changes to allow owners and service companies to modify data systems and retrain technicians

. The language needs to be clear throughout the recordkeeping requirements that they are only applicable when the maintenance or repair of an appliance involves the addition of refrigerant. Maintenance, service or repair where the refrigerant is removed and replaced without addition is not included. M aintenance, service or repair where the refrigerant is untouched is not included. § 82.166(k) should therefore not require records of “refrigerant recovered from the appliance” but records of “refrigerant recovered from but not returned to the appliance

. ”
§82.166 (m) : This requirement should be clarified such that only the refrigerant recovered greater than 50 pounds is subject to recordkeeping . Also, the rule should explicitly permit that records required by RCRA for disposal of hazardous wastes satisfy the requirement.
§82.166 (u) : The s ale or distribution of used refrigerant records should not apply to transfers governed by § § 82.154(g)(4) or (5).
§82.166 (v) : The preamble states that records should be kept at the “physical location” of the refrigeration

s ystem, which could be misinterpreted to mean at the chiller

. Many facilities utilize contractors that are responsible for maintaining the equipment, and keep the records off

- site at the contractors‟ places of business. The preamble language should be revis ed in the final rule to reflect that the records should be “made available upon request” and not necessarily kept at the “physical location” of the refrigeratio n system.