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Protection of Stratospheric Ozone: Supplemental Rule to Amend Leak Repair Provisions Under Section 608 of 

the Clean Air Act

[Federal Register: August 8, 1995 (Volume 60, Number 152)]

[Rules and Regulations] 

[Page 40419-40444]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

Environmental Protection Agency

40 CFR Part 82

Protection of Stratospheric Ozone: Supplemental Rule to Amend 

Leak Repair Provisions Under Section 608 of the Clean Air Act

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: Through this action EPA is amending the Refrigerant Recycling 

Regulations promulgated under section 608 of the Clean Air Act 

Amendments of 1990. This action is being undertaken to address specific 

concerns regarding the leak repair requirements for industrial process 

refrigeration systems, pursuant to a settlement agreement with the 

Chemical Manufacturers Association (CMA). This action will affect the 

owners and operators of industrial process refrigeration with regard to 

leak repair provisions. Certain aspects of this action will also affect 

federal owners and operators of commercial and comfort-cooling 

refrigeration with charges of 50 pounds of refrigerant or greater. This 

action provides greater flexibility to owners and operators of 

industrial process sources and to some federally-owned commercial and 

comfort-cooling refrigerant sources with regard to leak repair 

provisions. EPA is providing this flexibility without compromising the 

goals of protecting public health and the environment.

EFFECTIVE DATE: September 7, 1995.

ADDRESSES: Comments on this action are contained in the Air Docket 

Office, Public Docket No. A-92-01 VIIID, Waterside Mall (Ground Floor) 

Environmental Protection Agency, 401 M Street, SW., Washington, DC 

20460 in room M-1500. Additional comments and materials supporting this 

rulemaking are contained in Public Docket No. A-92-01. Dockets may be 

inspected from 8 a.m. until 5:30 p.m., Monday through Friday. A 

reasonable fee may be charged for copying docket materials.

FOR FURTHER INFORMATION CONTACT: Cindy Newberg, Regulatory Development 

Section, Program Implementation Branch, Stratospheric Protection 

Division, Office of Atmospheric Programs, Office of Air and Radiation 

(6205-J), 401 M Street, SW., Washington, DC 20460, (202) 233-9729. The 

Stratospheric Ozone Information Hotline at 1-800-296-1996 can also be 

contacted for further information.

SUPPLEMENTARY INFORMATION: The contents of this preamble are listed in 

the following outline:

I. Refrigerant Recycling Regulations

II. This Rule

III. Notice of Proposed Rulemaking

IV. Summary of Major Comments Received

V. Response to Comments

 A. Legal Authority

 B. Contracted Employees

 C. Nuclear Power

 D. Definition of Industrial Process Refrigeration Equipment and 

the Need for Separate Leak Repair Requirements

 E. Repairing Appliances

1. Repair Attempts

2. Timeframes for Repairing Leaks

3. Determining the Full Charge of Refrigerant

4. Best Efforts

5. Static and Dynamic Tests

6. Fixing Other Leaks

 F. Industrial Process Shutdown

 G. Retrofitting or Replacing Equipment

 H. Recordkeeping and Reporting Requirements

 I. Purged Refrigerants

 J. Federally-Owned Chillers

 K. Mothballing

 L. Grandfathering

 M. Terminology

 N. Regulatory Impact Analysis

 O. Allowing Appliances To Be Pressurized To Slightly Above O 

PSIG

VI. Judicial Review

VII. Administrative Requirements

 A. Executive Order 12866

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 B. Unfunded Mandates Act

 C. Paperwork Reduction Act

 D. Regulatory Flexibility Act

I. Refrigerant Recycling Regulations

 Final regulations promulgated by the U.S. Environmental Protection 

Agency (EPA) under section 608 of the Clean Air Act Amendments of 1990 

(the Act), published on May 14, 1993 (58 FR 28660), establish a 

recycling program for ozone-depleting refrigerants recovered during the 

servicing and disposal of air-conditioning and refrigeration equipment. 

Together with the prohibition on venting during the maintenance, 

service, repair and disposal of class I and class II substances (see 

the listing notice January 22, 1991; 56 FR 2420) that took effect on 

July 1, 1992, these regulations are intended to substantially reduce 

the emissions of ozone-depleting refrigerants. These regulations were 

subsequently revised in the final regulations published August 19, 1994 

(59 FR 42950), November 9, 1994 (59 FR 55912), and March 17, 1995 (60 

FR 14607).

 The current regulations require that persons servicing airconditioning 

and refrigeration equipment observe certain service 

practices to reduce emissions, establish equipment and reclamation 

certification requirements, and comply with a technician certification 

requirement. The regulations also require that ozone-depleting 

compounds contained in appliances be removed prior to disposal of the 

appliances, and that all air-conditioning and refrigeration equipment, 

except for small appliances, be provided with a servicing aperture that 

will facilitate recovery of refrigerant.

 The May 14, 1993 regulations establish leak repair requirements to 

further minimize emissions of class I and class II substances. The rule 

states that appliances that normally hold a refrigerant charge of fifty 

pounds or more are subject to the leak repair requirements. An annual 

leak rate of 35 percent was established for industrial process sources 

and commercial chillers, while an annual leak rate of 15 percent was 

established for comfort-cooling. Where the leak rate is exceeded, the 

appliance must be repaired within 30 days. An alternative is to develop 

a retrofit or replacement plan within 30 days, outlining action to 

retrofit or replace the appliance within one year from the exceedance.

 The NPRM proposed revisions to the leak repair provisions in 

response to a settlement agreement reached by the Agency and the 

Chemical Manufacturers Association (CMA) specifically for industrial 

process refrigerant equipment. In that settlement, EPA agreed to 

propose changes to the leak repair requirements that would provide 

additional time to repair and/or retrofit industrial process 

refrigeration equipment based on the uniqueness of the industrial 

process sector and on new information provided by CMA. EPA also agreed 

to propose revising the evacuation requirements for oil changes to 

permit for slight positive pressure, not to exceed 5 PSIG. Finally, EPA 

agreed to clarify that purged emissions that have been captured and 

destroyed should be excluded from the leak rate calculations.

 The information received from CMA after the completion of the 

initial rulemaking indicated that under certain circumstances the 

timelines for repairing leaky industrial process refrigeration 

equipment or to retrofit such equipment are not achievable. The 

proposed rulemaking was developed to respond to those circumstances by 

proposing the shortest timeframes achievable for this sector and to 

relax the requirements for oil changes as well as to permit for the 

exclusion of destroyed purged refrigerants.

[[Page 40421]]

 The NPRM also proposed several other changes to the regulations, 

including an exemption for federally-owned chillers under certain 

circumstances. The NPRM is discussed in further detail in the following 

section.

 The recycling rule, 40 CFR, part 82, subpart F, was only re-opened 

for purposes of reconsidering the specific provisions outlined in the 

NPRM and discussed in this final action. EPA did not invite comments on 

any other provisions of the recycling rule. However, in separate 

actions EPA has recently addressed a stay on the sales restriction for 

split systems (60 FR 24676), and an extension of the reclamation 

requirements (60 FR 14607). In addition, EPA plans in the future to 

consider additional changes to the requirements under 40 CFR, part 82, 

subpart F, including:

 <bullet> Reconsideration of the sales restriction for split systems 

and pre-charged parts;

 <bullet> The adoption of an industry off-site recycling standard; 

and

 <bullet> Requirements for recovering alternative substances to 

class I and class II refrigerants unless the Administrator determines 

that venting, releasing or disposing of the substitute refrigerants do 

not pose a threat to the environment.

 These issues will be addressed in separate rulemakings that will 

follow appropriate notice and comment procedures.

II. This Rule

 This final rule affects the owners and operators of industrial 

process refrigeration equipment that normally contain a charge of 50 

pounds or more of a class I or class II refrigerant. Today's action 

will provide the owners and operators with greater flexibility in 

repairing leaks and retrofitting leaky appliances. EPA will permit the 

owner or operator to have more than 30 days to complete repairs and 

more than one year to retrofit appliances where the conditions 

described in this final rule apply.

 Through this final action EPA is also clarifying that the owners 

and operators of all appliances subject to the leak repair provisions 

must only reduce leak rates to below the allowable leaks.

 In addition, this action will permit additional time beyond the 30-

day leak repair period for federally-owned chillers where the chillers 

are located in areas subject to radiological contamination. EPA will 

also permit additional time beyond the one-year retrofit period if 

appropriations and procurement requirements limit the feasibility of 

completing the retrofit activities within one year.

 Finally, this rule will permit the owners or operators to evacuate 

appliances to slightly above atmospheric pressure, specifically to a 

pressure not exceeding 5 psig, to perform oil changes. Alternatively, 

EPA will permit the owner or operator to recover the oil to a system 

receiver where the receiver will be evacuated to atmospheric pressure.

 This statement in conjunction with the NPRM, serves as the 

statement of basis and purpose under Sec. 307 of the Act.

III. Notice of Proposed Rulemaking

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 On January 19, 1995, EPA published a notice of proposed rulemaking 

(NPRM) (60 FR 3992) concerning proposed revisions to the leak repair 

requirements promulgated under section 608. Below is a summary of the 

NPRM.

 EPA proposed to permit the owners and operators of industrial 

process refrigeration equipment more than 30 days to repair leaks when 

the necessary parts are unavailable, or if requirements of other 

federal, state or local regulations make a repair within 30 days 

impossible. Only the time necessary to receive delivery of any 

necessary parts or comply with any applicable regulations would be 

permitted. The NPRM specified that the owner or operator of the 

industrial process refrigeration equipment would have to exert best 

efforts to repair leaks within the 30-day time period. If the equipment 

could not be repaired within the 30-day requirement, the owner or 

operator would have to document repair efforts, notify EPA of the 

inability to comply, provide appropriate information concerning the 

reason for the inability to complete the repairs and develop to EPA a 

one-year retrofit, replacement, or retirement plan for the leaky 

appliance. The NPRM stated that the owners or operators of the 

industrial process refrigeration equipment would be required to 

maintain records concerning their actions and submit specific 

information to EPA that details the need for additional time to 

complete the repair work. These records are discussed in further detail 

in the NPRM (60 FR 3994).

 In order to complete many types of repairs, industrial process 

refrigeration equipment may need to be shut down. EPA proposed a 120-

day repair period, rather than a 30-day repair period, where an 

industrial process shutdown is necessary to repair a leak or leaks from 

industrial process refrigeration equipment.

 EPA proposed three methods for owners and operators of industrial 

process refrigeration equipment to determine the full charge of 

refrigerant in the appliance and therefore, be able to calculate the 

leak rate. Two additional methods for these calculations were also 

discussed but were not proposed. The methods EPA proposed were: (1) To 

rely on the manufacturers' determinations, (2) to require the owner or 

operator to do calculations based on component sizes, flow rates, 

pressures, and other considerations, and/or (3) to rely on actual 

measurements of the amount of refrigerant added or evacuated from 

industrial process refrigeration equipment. These and other methods are 

discussed in greater detail in the NPRM (60 FR 3995).

 EPA proposed that the repair efforts required for industrial 

process refrigeration equipment be those that sound engineering 

judgment indicates will be sufficient to bring the leak rate below a 35 

percent annual rate, that a static test be conducted at the conclusion 

of the repairs to determine whether the repairs undertaken were 

successfully completed, and that a dynamic test be conducted within 30 

days of bringing the system back on-line (if taken off-line) or within 

30 days of completing the actual repairs, but no sooner than when the 

system has achieved steady-state operating characteristics. If the 

dynamic test indicates that the repairs have not been successfully 

completed, EPA proposed that the owner would be subject to a 

requirement to retrofit or replace the appliance within one year of the 

failure to verify that the repairs had been successfully completed or 

such longer time period as may be granted. Furthermore, EPA proposed 

that the owner or operator notify EPA of the failure within 30 days of 

the failed dynamic verification test. Proposed definitions of static 

and dynamic tests and examples of these tests are discussed in the NPRM 

(60 FR 3996).

 Industrial process refrigeration systems have many potential 

sources of leaks. The NPRM stated that if a sufficient number of other 

leaks can be repaired creating a situation where the originally 

identified leak or leaks remain, but the overall leak rate has been 

successfully reduced to below 35 percent per year, the owner or 

operator has still in effect met its obligation under the rule. 

Therefore, EPA proposed that the owner or operator of an industrial 

process refrigeration unit be relieved of the obligation to retrofit or 

replace the appliance if, within 180 days of the failed dynamic 

verification 

[[Page 40422]]

test, the owner or operator establishes that the appliance's annual 

leak rate does not exceed 35 percent. If the equipment owner or 

operator establishes that the appliance's annual leak rate does not 

exceed 35 percent, the owner or operator would be required to notify 

EPA within 30 days of that determination and the owner or operator 

would no longer be subject to the obligation to retrofit or replace the 

appliance that arose as a consequence of the initial failure to repair 

the leak or leaks successfully. The determination of whether the 

appliance's annual leak rate exceeds 35 percent would be determined in 

accordance with parameters identified by the owner or operator in its 

notice to EPA regarding the failure of the initial dynamic verification 

test.

 EPA proposed to clarify that for industrial process and commercial 

sources, leaks need to be repaired such that the leak rate is brought 

back to a level below the 35 percent annual rate. A parallel 

clarification for comfort-cooling and commercial sources also was 

proposed. Therefore, rather than requiring that ``all'' leaks be 

repaired, EPA proposed revising the requirements to reduce leaks to a 

rate below the acceptable thresholds. EPA would permit leaky appliances 

to operate as long as the leak rate does not exceed that amount.

 In the NPRM, EPA stated that it may be reasonable to permit 

additional time beyond the one-year established by the current 

regulations for the retrofitting of certain industrial process 

refrigeration equipment. EPA believes there are specific concerns 

relating to the need for special design, engineering, ordering and 

installation difficulties for some industrial process refrigeration 

equipment. EPA proposed to allow more than one year to complete the 

retrofit of industrial process refrigeration equipment in certain 

circumstances. The NPRM describes scenarios that may justify more than 

one year to retrofit an appliance; however, EPA does not believe 

additional time is always necessary. Therefore, EPA intended to permit 

additional time only when the owners or operators of the industrial 

process refrigeration equipment can provide information detailing the 

need for additional time in accordance with the proposed requirements 

described below.

 EPA proposed that additional time, to the extent reasonably 

necessary, would be allowed due to delays occasioned by the 

requirements of other applicable federal, state, or local regulations, 

or due to the unavailability of a suitable replacement refrigerant with 

a lower ozone depletion potential. The suitability of a replacement 

refrigerant is discussed in the NPRM (60 FR 4000). The owner or 

operator of the facility would have to notify EPA within six months 

after the 30-day period following the discovery of an exceedance of the 

35 percent leak rate. Records that would provide evidence that other 

regulations or the unavailability of a suitable alternative refrigerant 

prevent retrofit or replacement within one year must be submitted to 

EPA to allow EPA to determine that these provisions apply and assess 

the length of time necessary to complete the work. EPA proposed that it 

notify the owner or operator of its determination within 60 days of 

submittal. The limited recordkeeping requirements are discussed in the 

NPRM (60 FR 4000). EPA proposed that such records be maintained by the 

owner or operator and kept on-site.

 EPA proposed that an additional one-year period beyond the initial 

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one-year retrofit period be allowed for industrial process 

refrigeration equipment if four criteria are met: (1) The new or 

retrofitted refrigeration system is custom-built (meaning if it or any 

of its critical components cannot be purchased and/or installed without 

being specifically designed), fabricated and/or assembled to satisfy a 

specific set of industrial process conditions; (2) the supplier of the 

system of one or more of its critical components has quoted a delivery 

time of more than 30 weeks from when the order is placed; (3) the owner 

or operator notifies EPA within six months of the expiration of the 30-

day period following the discovery of an exceedance of the 35 percent 

leak rate to identify the owner or operator, describe the appliance 

involved, explain why more than one year is needed, and demonstrate 

that the first two criteria are met; and (4) the owner or operator 

maintains records adequate to allow a determination that the criteria 

are met. The criteria are further discussed in the NPRM (60 FR 4000).

 EPA proposed that if more than one additional year is needed, the 

owner may request to extend the deadline for completing all retrofit or 

replacement action. EPA proposed that such a request be submitted to 

EPA before the end of the ninth month of the additional year that was 

granted to retrofit, replace, or retire the appliance. The request 

would be required to include revisions to that information submitted 

for the first additional year as proposed under Sec. 82.166(o). Unless 

EPA objects to the request within 30 days of receipt, it would be 

deemed approved. EPA stated that this extension would be granted only 

in cases where the actual nature of the retrofit or replacement 

activities is such that the additional time beyond the one year is 

crucial. The submittal of revised information is discussed in the NPRM 

(60 FR 4002).

 EPA proposed to allow owners or operators to evacuate the appliance 

to slightly above atmospheric pressure, specifically to a pressure not 

exceeding 5 psig, to perform oil changes. Reasons for this approach are 

described in the NPRM (60 FR 4002).

 The NPRM stated that EPA would like to clarify that the Agency 

interprets the 35 percent leak rate in the regulations as not including 

emissions of purged refrigerant that are destroyed, if their 

destruction is accounted for and can be verified by records maintained 

by the owners or operators of the industrial process refrigeration 

equipment. If purged refrigerant is destroyed using one of the five 

destruction technologies approved by the Parties to the Montreal 

Protocol, EPA can consider that refrigerant to have been destroyed and 

therefore, not part of the leak rate for the system. A description of 

the methods for destroying refrigerant and the how industrial process 

refrigeration systems could measure purged refrigerants is contained in 

the NPRM (60 FR 4003).

 In the NPRM (60 FR 4003), EPA described temporarily mothballing 

equipment. If a facility is temporarily mothballed, EPA believes it is 

appropriate to suspend the time-relevant repair and/or retrofit 

requirements while the facility is effectively inoperative. In the same 

subsection, EPA described how temporarily mothballing is not equivalent 

to having an appliance taken off-line or to an industrial process 

shutdown. EPA proposed that while temporarily mothballed, the timerelevant 

repair and/or retrofit requirements would be suspended.

 EPA proposed that owners or operators of a federally-owned 

refrigerant appliance be able to submit a request for extensions 

parallel to those outlined for industrial process refrigeration 

equipment, based on the hindrance of federal procurement requirements. 

If additional time is granted, EPA proposed that testing and 

documentation should occur, parallel to those for industrial process 

refrigeration equipment. The reasons for this proposed extension are 

discussed in detail in the NPRM (60 FR 4004).

IV. Summary of Major Comments Received

 During the public comment period EPA received fourteen sets of 

comments that are addressed in this action. In 

[[Page 40423]]

addition, EPA received and considered additional comments submitted to 

the Agency after the 30-day public comment period ended. All comments 

considered in this final action are contained in Air Docket A-92-01 

VIIID.

 All the commenters agreed that EPA should revise the leak repair 

requirements. Most of the commenters agreed with the general paradigm 

EPA proposed for repairing leaks in industrial process refrigeration 

equipment. Commenters raised specific concerns regarding various 

aspects of the proposed rule.

 EPA received comments concerning the inclusion of specific types of 

appliances in the definition of industrial process refrigeration 

equipment. One commenter was concerned with whether the economic impact 

of an industrial process shutdown of a nuclear power reactor used in 

the generation of electricity was considered by the Agency.

 Many commenters were concerned with the use and definitions of 

static and dynamic tests. In particular, several commenters suggested 

that the tests should be described as ``first verification test'' and 

``follow-up verification test,'' thus avoiding any confusion stemming 

from the common associations of static and dynamic with a state of 

motion. Some commenters stated that dynamic tests in certain 

circumstances should be performed before the affected appliance is 

operating at steady-state.

 A few commenters were concerned with the methods EPA proposed to 

determine the full charge of an appliance. These commenters believe 

that the fourth option described in the NPRM (60 FR 3996) should be 

considered an acceptable methodology.

 Several commenters believe that EPA should broaden the proposed 

conditions under which mothballing an appliance would suspend the timerelevant 

leak repair requirements.

 A few commenters suggested changes to the recordkeeping and 

reporting requirements.

 EPA received several comments regarding the proposed requirements 

for federally-owned chillers. Some commenters supported EPA's proposal, 

some opposed it, and one commenter suggested that EPA re-propose the 

changes under a separate rulemaking.

 EPA received comments on the requirement to exert best efforts to 

repair leaks. Commenters were concerned that since the settlement 

agreement between EPA and CMA was reached, the interpretation of best 

efforts and sound engineering judgment has changed.

 All the comments received by EPA are discussed in greater detail 

below.

V. Response to Comments

 EPA received fourteen sets of comments during the comment period on 

the proposed changes to the leak repair requirements published January 

19, 1995 (60 FR 3992). Individual comments are specifically addressed 

in this section.

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A. Legal Authority

 EPA requested comment on the legal authority under which EPA was 

proposing and today is promulgating revisions to the leak repair 

requirements. A few commenters addressed this issue and agreed with 

EPA's legal basis for proposing these changes.

B. Contracted Employees

 Two commenters requested that EPA clarify that actual work to be 

performed on affected appliances may be provided by contracted 

personnel. One commenter stated that although the owner or operator 

remains responsible for compliance, the work need not be performed by 

the owner or operator. EPA agrees with these commenters. The Agency 

recognizes that often repair and maintenance services are performed 

under contractual arrangements. Moreover, contracted personnel will be 

acting as agents of the owner or operator with respect to performance 

of service and maintenance of the appliances. Therefore, the owner or 

operator remains responsible to ensure that compliance with the 

requirements promulgated under section 608 occurs.

C. Nuclear Power

 One comment received by EPA discusses the consideration of the leak 

repair requirements specifically for generation of electricity by a 

nuclear power reactor. The commenter does not believe the NPRM takes 

into account the technological and economic factors specific to the 

operation of these facilities in the context of the statutory standard 

in section 608(a)(3)(A) of the Act. For example, the commenter states 

that the shutdown of a nuclear power reactor within 120 days of 

discovering that the leak rate exceeds 35 percent is costly. The 

commenter stated that planned outages are typically scheduled on an 18-

month cycle.

 EPA understands under this rule, that an industrial process 

shutdown will often occur without regard to the planned outages for 

nuclear power stations, as well as for other industrial process 

refrigeration equipment in order to repair leaks. During the settlement 

agreement negotiations, discussions were held considering the 

possibility of waiting for the next scheduled shutdown. However, since 

these scheduled shutdowns often do not occur frequently, it was 

determined that undertaking a separate industrial process shutdown 

would be necessary to limit the emissions of refrigerant. EPA does not 

believe that the owners or operators of nuclear power stations incur 

costs that are dissimilar to those incurred by the chemical, 

pharmaceutical, petrochemical, and manufacturing industries when an 

industrial process shutdown occurs. Other commenters from these fields 

expressed concerns about the costs associated with an industrial 

process shutdown, but agreed with EPA that such an undertaking would be 

necessary to limit releases of ozone-depleting substances.

 Prior to this rulemaking it was unclear whether the use of chillers 

in the generation of electricity actually met the definition of 

industrial process refrigeration equipment. Therefore, it is true that 

EPA did not base the NPRM on any specific consideration of the nuclear 

power industry. However, EPA does not believe that the commenter has 

demonstrated how the generation of electricity from a nuclear power 

reactor would face technological or economic factors not experienced by 

other owners or operators of industrial process refrigeration 

equipment. Furthermore, today's action lessens the burden for all 

industrial process refrigeration equipment, regardless of its use. If 

significant distinctions exist between refrigeration appliances used in 

the generation of electricity and other refrigeration appliances, EPA 

may need to reconsider whether the use of appliances in the generation 

of electricity is truly consistent with industrial process 

refrigeration equipment. If not, these appliances would be subject to 

the 15 percent leak rate and all associated requirements.

D. Definition of Industrial Process Refrigeration Equipment and the 

Need for Separate Leak Repair Requirements

 The NPRM stated that three main refrigeration sectors are affected 

by the leak repair provisions promulgated under section 608 of the Act: 

commercial refrigeration, comfort-cooling, and industrial process 

refrigeration. While many different commercial refrigeration and 

comfort-cooling appliances are similar in design and function, EPA 

received information from CMA illustrating the uniqueness of industrial 

process refrigeration equipment. Industrial process 

[[Page 40424]]

refrigeration equipment is custom-designed and assembled in-place at a 

process location. Thus, each of these industrial units has unique 

operating characteristics. Industrial process refrigeration has been 

defined in Sec. 82.152 as:

° * * complex customized appliances used in the chemical, 

pharmaceutical, petrochemical and manufacturing industries. This 

sector also includes industrial ice machines and ice rinks.

 EPA requested comment on the appropriateness of establishing 

separate repair provisions for industrial process refrigeration. EPA 

received several comments concerning the need for separate provisions. 

These comments agreed with the NPRM. Specifically, commenters referred 

to the uniqueness of industrial process refrigeration equipment used in 

pharmaceutical, petrochemical, and manufacturing industries. Commenters 

stated that there are several apparent differences between industrial 

process refrigeration equipment and other types of equipment affected 

by the leak repair provisions. Industrial process refrigeration 

equipment is larger and more complex than hermetically-sealed consumer 

units. Most comfort-cooling appliances have hermetically-sealed or 

semi-hermetically-sealed refrigerant loops. Complexity of the 

industrial process refrigeration equipment makes leak detection and 

leak rate calculations more difficult than for other sectors affected 

by the leak repair provisions. Commenters agreed with EPA's assessment 

that the replacement parts for this sector often must be specifically 

fabricated for the leaking equipment. Commenters believe that shutting 

down industrial process refrigeration equipment often takes several 

days and that the owners and operators of this equipment must avoid any 

unwanted chemical reactions that could lead to fires, explosions, or 

other immediate hazards. Based on the discussion in the NPRM and the 

comments received, EPA is establishing separate leak repair 

requirements for industrial process refrigeration equipment.

 One commenter suggested EPA clarify the definition of industrial 

process refrigeration equipment with respect to the appliance's 

relationship to the manufacturing process. The commenter stated that 

the terms: ``complex;'' ``used in the manufacturing industry;'' 

``custom designed;'' and ``assembled in place'' are subjective and 

could be applied to many of the appliances used for cooling large 

buildings or processes. Industrial process refrigeration equipment in 

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the manufacturing sector is used to cool processes directly related to 

a broad range of manufacturing activities. The commenter suggests that 

the differentiating factor between industrial process and commercial 

refrigeration is that industrial process refrigeration equipment tends 

to be directly linked to a manufacturing activity. EPA agrees with this 

commenter's concerns. EPA distinguishes between commercial 

refrigeration and industrial process refrigeration equipment for the 

purposes of Sec. 608 in part by considering how the appliance is used. 

EPA did not intend to include in the definition of industrial process 

refrigeration equipment appliances not involved in the industrial 

process. Therefore, through this action EPA will amend the definition 

of industrial process refrigeration to clarify that use is a factor in 

determining if an appliance is industrial process refrigeration 

equipment.

 EPA received comments concerning whether the generation of 

electricity, particularly where a nuclear reactor is used, is included 

in the definition of industrial process refrigeration equipment. One 

commenter stated that EPA does not specifically identify electric 

generating stations as industrial processes, as the rule does for the 

chemical and pharmaceutical industries. The commenter states that 

large, custom refrigeration appliances to cool the production process 

are essential to the manufacturing of electricity and are prevalent at 

nuclear generating stations.

 Fundamental to the classification of these appliances is whether or 

not the system is used directly in the production of electricity. The 

commenter states that shutting down the refrigeration appliances could 

result in the shutdown of the generating station, where the two are 

integrally linked. Another commenter stated that chillers used in 

safety-related equipment are critical to the safe shutdown of nuclear 

power stations in the event of an accident. EPA believes that current 

definition of industrial process refrigeration equipment needs to be 

clarified to specifically state that the generation of electricity is 

included. EPA believes that under the current definition it is not 

apparent that the generation of electricity is considered 

manufacturing. Therefore, through this action, EPA will add the 

generation of electricity to the definition of industrial process 

refrigeration. EPA would like to clarify that the definition will only 

include appliances directly linked to the generation of electricity. 

Appliances used to cool control rooms or offices are not considered 

industrial process refrigeration equipment.

 The amended definition will be: ° * * complex customized appliances used in the chemical, 

pharmaceutical, petrochemical and manufacturing industries. These 

appliances are directly linked to the process. This sector also 

includes industrial ice machines, appliances used directly in the 

generation of electricity, and ice rinks * * *

 EPA received one comment concerned with the potential for 

ambiguities in the definition of industrial process refrigeration 

equipment and commercial refrigeration. The commenter notes that by 

default, all appliances with more than 50 pounds of refrigerant that do 

not come under the definition of commercial or industrial process 

refrigeration equipment must have leaks repaired when the leak rate 

exceeds 15 percent leak rate. EPA agrees that all appliances with 50 

pounds of refrigerant or more, that do not meet these definitions are 

subject to the 15 percent leak rate.

 Three comments asserted that other types of appliances should also 

be included in the leak repair requirements for industrial process 

refrigeration equipment. These commenters proposed expanding the 

definition of industrial process refrigeration equipment to incorporate 

specialized comfort cooling appliances and specialized commercial 

refrigeration. One commenter stated that since industrial comfortcooling 

equipment such as the air conditioners mounted on cranes in a 

smelter are ``custom built,'' EPA should allow additional time for 

repairs to be made. While EPA understands that these appliances are 

customized to be located on cranes, often above molten metal, EPA does 

not believe these appliances are consistent with either the original or 

amended definition of industrial process refrigeration equipment. EPA 

believes that the parts used in these types of comfort-cooling 

appliances are not unique and are therefore relatively easy to replace. 

Furthermore, the appliances do not function as part of the process. 

Customizing the appliances in this scenario refers predominantly to 

modifying the system to fit in its intended location. Therefore, EPA 

does not consider industrial comfort-cooling appliances to be 

industrial process refrigeration equipment.

 Another commenter stated that the definition of industrial process 

refrigeration should be expanded. The commenter uses specialized 

refrigeration equipment in confined spaces and other industrial-setting 

applications, refrigeration as cooling equipment in laboratories for 

meeting 

[[Page 40425]]

specific testing requirements, and cooling areas containing a bank of 

computers to ensure a controlled environment. Another commenter stated 

that the definition should specify that appliances used for regulating 

temperatures in the control panel buildings should also be considered 

industrial process. The commenter believes that this is an integral 

part of the process and that since these appliances are vital to the 

proper functioning of the instruments in the control panel they do not 

constitute ``comfort-cooling.'' While EPA understands that these 

cooling appliances are designed to meet specific cooling needs and fit 

in specific settings, these appliances do not meet the definition of 

industrial process refrigeration. EPA does not believe it is 

appropriate to expand the definition of industrial process 

refrigeration equipment to include specialized comfort-cooling 

appliances. If appropriate in the future, EPA could consider creating a 

separate category of specialized comfort-cooling appliances and/or 

specialized commercial appliances and permitting additional time to 

repair leaks. However, at this time EPA does not believe this is 

necessary. If EPA receives compelling information, then EPA would 

consider proceeding with appropriate notice and comment.

 Amending the requirements to create new sub-sectors for appliances 

not considered in the NPRM, particularly where such determinations 

would likely have wide-ranging consequences where proper notice has not 

been given, would be inappropriate as part of today's final action. 

Therefore, EPA will not expand the definition of industrial process 

refrigeration equipment to include specialized comfort-cooling or 

specialized commercial appliances. EPA may reconsider this issue 

through proper notice and comment procedures, at a later date.

 EPA received several comments regarding the amount of refrigerant 

contained in appliances subject to the leak repair requirements. 

Commenters asked that EPA clarify that leak repair is required only for 

appliances that normally contain more than 50 pounds of refrigerant. On 

August 19, 1994 (59 FR 42953), EPA addressed this concern. The notice 

states that ``although EPA did not explicitly restrict the scope of its 

leak repair requirement for commercial and industrial process 

refrigeration to equipment containing more than 50 pounds of 

refrigerant, EPA intended this requirement (Sec. 82.156(i)) to cover 

only equipment containing at least 50 pounds'' (59 FR 42953). 

Accordingly, EPA amended Sec. 82.156(i) to specify the 50-pound cut-off 

(59 FR 42957). Inadvertently, EPA neglected to carry over that amended 

language in the January 19, 1995 NPRM. Therefore, through this action, 

EPA will amend the proposed requirements of Sec. 82.156(i) to specify 

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the 50-pound cut-off.

 One commenter requests that EPA clarify that 50 pounds refers to 

the refrigerant in one refrigerant circuit. The commenter states that 

where two separate, wholly independent refrigeration circuits that are 

not interconnected, each having a normal refrigerant capacity of no 

more than 50 pounds, the leak repair provisions should not apply. EPA 

agrees with this commenter. Through this action, EPA would like to 

clarify that if the refrigerant circuits do not interconnect, and if 

each wholly independent circuit has a capacity of no more than 50 

pounds of refrigerant, the leak repair provisions promulgated under 

Sec. 82.156(i) do not apply. However, if the refrigerant circuits are 

connected, and the combined circuits have a normal capacity of more 

than 50 pounds of refrigerant, the leak repair provisions do apply.

 EPA received several comments regarding appliances used as both 

industrial process refrigeration equipment and comfort-cooling. The 

commenters were concerned with whether they need to use the 15 percent 

leak rate or the 35 percent leak rate under these circumstances. One 

example would be a chiller used directly in the generation of 

electricity and used to cool the control room. EPA believes that where 

50 percent or more of an appliance's capacity is being used as 

industrial process refrigeration equipment, that appliance should be 

treated as industrial process refrigeration equipment and therefore 

subject to the 35 leak rate. Where less than 50 percent of an 

appliance's capacity is being used as industrial process refrigeration 

equipment, then the appliance will not be considered industrial process 

refrigeration equipment and will therefore be subject to the 15 percent 

leak rate. EPA believes this demonstrates an equitable approach and is 

consistent with determinations made by the Agency's Office of 

Compliance.<SUP>1

 \1\ Applicability Determination #51 made under the Sec. 608 

rulemakings.

 EPA received one comment regarding the definition of on-site. The 

commenter believes EPA should specify that on-site means within a 

contiguous geographic area, under common ownership or control, that 

includes the location of the appliance. For the purposes of these 

regulations, EPA agrees with this interpretation of the term on-site.

E. Repairing Appliances

1. Repair Attempts

 EPA received several comments seeking clarification concerning how 

EPA will interpret the first repair attempt. Commenters stated that EPA 

should clarify that repairs can be iterative and therefore an owner or 

operator should be allowed to make as many repair attempts within the 

initial 30-day or 120-day timeframe as possible, as long as the results 

of conducting the verification tests indicate that the repairs were 

successful. One commenter explained that repairs may be checked several 

times before being considered complete. The commenter feared that there 

may be confusion that one unsuccessful attempt to tighten a bolt or 

replace a gasket might trigger the requirements as when a dynamic test 

fails.

 EPA agrees with these concerns. EPA believes that during the 

initial 30-day or 120-day repair time, all attempts should be made to 

repair the leaks. Therefore, through this action EPA will replace the 

proposed language ``first attempt'' with ``initial repair efforts,'' 

thus including all the efforts made during the initial 30 or 120 days.

 EPA also received comments concerning the interpretation of 

``second attempt'' to repair leaks. The commenters are concerned that 

second attempt implies a singular event rather than a series of events 

to repair a leak within a finite period of time. One commenter 

suggested that ``efforts'' be used instead. The commenter believes a 

limited timeframe instead of a limited event should be acceptable. EPA 

received comments indicating that the Agency should modify the rule to 

include a timeframe for completing the second attempt to repair leaks, 

particularly since a timeframe was included in the settlement 

agreement.

 EPA agrees with the comments. A timeframe of 30 days (or 120 days 

in the case of an industrial process shutdown) was specified in the 

settlement agreement and inadvertently not included in the NPRM under 

Sec. 82.156(i)(3)(iv). As discussed above in reference to a first 

repair attempt, EPA understands that repairs may be iterative and that 

a singular effort should not be described. Another comment suggested 

EPA use the language, ``any subsequent repair attempt.'' EPA does not 

believe that this language is appropriate because it is too open-ended 

and could potentially cause 

[[Page 40426]]

confusion. Therefore, through this action EPA will modify the proposed 

Sec. 82.156(i)(3)(iv) to include a reference to 30 days and 120 days 

for completing ``second repair efforts.''

2. Timeframes for Repairing Leaks

 EPA received many comments supporting the proposed timeframes for 

repairing leaks in industrial process equipment. These commenters 

recognized that while many types of leaks can be repaired within 30 

days, in particular circumstances, such as when an industrial process 

shutdown is required, additional time is necessary. EPA received one 

comment stating that in all cases 120 days should be provided to repair 

all leaks. The commenter further stated that if the leaks could not be 

repaired within 120 days, additional time should be provided if the 

parts are unavailable, there are complications due to other 

regulations, or the potential need for the system to be taken off line 

to effect the repair exists. The commenter believes that this will 

reduce the amount of delays experienced by waiting for approvals from 

the Agency and it would decrease the burden placed upon the industry by 

reducing the number of submittals. The commenter further believes that 

by reducing wasted time spent in performing bureaucratic functions, and 

waiting for approvals, the repairs may be more quickly and efficiently 

made.

 EPA does not believe it is necessary to always permit 120 days to 

repair leaks. In negotiating the settlement agreement with CMA and in 

subsequent discussions with industry representatives, numerous examples 

of routine repairs that can easily be made within 30 days have been 

identified. These types of repairs include leaks caused by a ruptured 

tube and a leaking gasket between the flanges. These and other types of 

repairs normally completed in less than 30 days are discussed in the 

NPRM (60 FR 3994). Limiting repair times to the most reasonable amount 

of time ensures that the repairs are completed responsibly and 

consistent with the spirit and intent of section 608 and the initial 

regulations promulgated in May 1993. EPA sees no reason to provide 

additional time to repair leaks that many commenters agree can easily 

be repaired within 30 days. Part of EPA's rationale for proposing 

changes to the leak repair provisions is based on the need to provide 

flexibility where the leaks are such that repairs cannot be made within 

30 days. Allowing 120 days for repairs where an industrial process 

shutdown is necessary recognizes the need to first complete the actual 

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shutdown before attempting to fix the leaks. Since under most 

circumstances, owners or operators are expected to proceed with their 

repair or retrofit operations without receipt of prior approval, EPA 

does not believe waiting for approval constitutes a reason for the 

owners or operators to delay action. Thus extending the leak repair 

timeframe to 120 days to ensure adequate time to receive EPA approval 

is not necessary. Therefore, EPA is requiring that where appropriate, 

leaks are to be repaired within 30 days.

 EPA received one comment regarding the course of action when the 

30-day repair requirement cannot be met. The commenter notes that the 

NPRM's preamble states that when the 30-day repair requirement cannot 

be met, the owner or operator must notify EPA and include ``a one-year 

retrofit, replacement or retirement plan for the leaky equipment'' (60 

FR 3994). However, the regulatory language does not state that 

requirement. Instead, the regulatory language states that the owners or 

operators must provide the reason(s) why more than 30 days are needed 

and an estimate of when the repair work will be completed. The 

commenter believes the regulatory text is correct. EPA agrees that the 

regulatory language properly reflects the notification requirement. 

Provisions proposed under Sec. 82.156(i) allows for other alternatives 

besides automatically retrofitting or replacing the equipment.

3. Determining the Full Charge of Refrigerant

 EPA received several comments concerning establishment of the 

amount of refrigerant contained in industrial process refrigeration 

equipment and therefore determining the leak rate for the affected 

appliance. One commenter suggested that EPA should specify a 

methodology for determining the percentage of refrigerant lost during a 

12-month period. Another commenter stated that large facilities that 

have in-house staff for servicing refrigeration equipment may not have 

had any regulatory requirement or internal justification for 

maintaining records of refrigerant charges prior to June 14, 1993 (the 

effective date of the initial regulations promulgated under section 

608). The commenter requests that EPA clarify that leak rate 

calculations are required to be performed by taking into consideration 

the additions of refrigerant that occur after the original promulgation 

of section 608. Furthermore, the commenter requests clarification about 

prorating refrigerant added over more than a 12-month period. For 

example, if 20 10s added every 24 months, does that constitute a 10

per year leak rate? The commenter believes that since there were no 

regulatory requirements prior to May 1993, owners or operators should 

not be subject to enforcement based on imprecise calculations. 

Alternatively, the commenter believes that EPA should permit the first 

recharge to occur without regard to the leak rate in order to establish 

a full charge baseline.

 EPA understands that prior to June 1993, records regarding the 

addition of refrigerant may not have been maintained. However, at this 

point such information should have been maintained for over two years. 

Therefore, EPA believes it is reasonable to assume a baseline can be 

established. EPA agrees that refrigerant recharges should be 

appropriately prorated to establish a yearly leak rate; however, EPA 

does not believe it is necessary or appropriate to permit the first 

recharge to occur without making an effort to assess the leak rate.

 Several commenters requested that EPA permit the use of the fourth 

option discussed in the NPRM (60 FR 3996) for determining the full 

charge of refrigerant. This method allows one to choose a number from 

within an established range based on the best data currently available. 

Once a number is selected, it would be considered the full charge; 

however, over time the owner or operator of the appliance may adjust 

the number based on new or revised information concerning the 

performance of the system. EPA expressed concerns that there is no 

clarity regarding circumstances under which a change in the number 

could be justified. In the NPRM, EPA stated that an everchanging 

estimate of the full charge defeats the purpose of creating a baseline.

 Several commenters stated that EPA's concerns can be overcome. One 

commenter stated that in its experience it is difficult to accurately 

estimate the full charge of particular appliances. The commenter 

believes that often only trial and error will derive an accurate 

number. The commenter believes it is essential to allow an owner or 

operator to be able to draw from experience and use a range in 

estimating the full charge. The commenter believes that as long as the 

method used is documented, an inspector can determine if the approach 

was reasonable. Another commenter stated that EPA should not reject any 

legitimate technique for calculating the full charge. Several 

commenters stated that every method for determining the full charge has 

its strengths and weaknesses. Moreover, expressed or not, all methods 

will develop a range. The commenters believed that EPA's 

[[Page 40427]]

concerns are that the owners or operators might frequently change the 

determination of full charge and that EPA would lack the criteria to 

evaluate whether the changes were justified. The commenters suggested a 

way to address these concerns:

 <bullet> Any downward revision of the full charge should be 

acceptable without a need for EPA to challenge it;

 <bullet> EPA could specify that the midpoint of the established 

range constitutes the full charge for determining a leak rate;

 <bullet> EPA could require the owners or operators to maintain 

records of the basis for their original determinations of the full 

charges and any data behind any changes to those determinations; and

 <bullet> EPA could require the owners or operators to submit a 

report to EPA when a number is revised after discovering refrigerant 

losses, when a number is revised resulting in a leak rate below 35 

percent, and when the owners or operators do not intend to fix the 

leaks.

 Another commenter stated that if EPA does not revise the proposed 

regulations to permit this method for determining the full charge, the 

Agency should provide at least six months for the owners or operators 

to determine the full charge of affected appliances using acceptable 

methods.

 EPA has considered these comments very carefully. EPA's concerns 

relate to the accuracy of the fourth method for determining the full 

charge of a system and the potential to adjust the estimate to reduce 

leak rates below the applicable thresholds. However, EPA believes that 

the commenters have suggested ways to alleviate EPA's concerns. EPA 

understands that while ranges may need to be adjusted several times for 

a new appliance, over time the frequency of such adjustments would 

likely decrease, unless substantial modifications were made to the 

appliance. Moreover, in most cases, ranges would not need to be 

adjusted more than once every few years after an appliance has been in 

operation long enough for the owner or operator to become comfortable 

with the range. Furthermore, EPA understands that a range may actually 

represent seasonal variations.

 EPA agrees with the commenters that any downward revision of the 

full charge should be acceptable without any need for EPA to challenge 

the revision. EPA further agrees that the midpoint of the established 

range shall represent the full charge for determining a leak rate. This 

mitigates the possibility of receiving any unfair advantage by 

adjusting the range, since the midpoint would not vary as much.

 EPA agrees with the comments that records should be maintained 

concerning the determination of the range and any adjustments to it. If 

the owners or operators of an appliance choose to establish a range, it 

is critical to understand the methodology for the establishment of the 

range and the methodology for any adjustments that would result in a 

larger number for the midpoint. EPA believes that such records would be 

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beneficial in any compliance determinations. Moreover, EPA believes 

that while ranges many need to be adjusted several times during the 

first year, the ranges will soon become stabilized. It will not be 

necessary to adjust the ranges unless a major change was made to the 

industrial process refrigeration equipment. Therefore, the records 

would not need to be modified often. Commenters suggested data elements 

to be contained in the records, including the original full charge and 

any revisions. EPA agrees with these commenters. Therefore, the records 

required for using the fourth option will include: the identification 

of the owner or operator of the appliance; the location of the 

appliance; the original full charge of the appliance and how it was 

determined; any revision of the full charge number and how it was 

determined; and the date such revisions occurred. Since the owner or 

operator need not use the fourth methodology, EPA does not believe this 

recordkeeping provision constitutes an unreasonable burden for the 

owners or operators.

 While commenters suggested limited reporting requirements to 

accompany this recordkeeping provision, EPA does not believe it is 

necessary or appropriate to require reports to be submitted detailing 

the methodology for establishing or changing the full charge 

determination. EPA believes maintaining records is necessary for the 

Agency to understand the methodologies used if an issue of compliance 

arises. EPA also believes that in all likelihood, such records will 

benefit the owner or operator of the appliance by providing a historic 

record of how the current leak rate was developed. However, routinely 

providing that information to EPA, particularly where no potential 

violation is suspected, is not necessary or appropriate. Therefore, EPA 

will require that records be maintained if the fourth method for 

establishing the full charge is used; however, EPA will not require any 

periodic reporting.

 Commenters stated that if the Agency adopts any recordkeeping or 

reporting options for the fourth methodology, such provisions should 

not be extended for use with the other three methodologies. EPA agrees 

with these commenters. EPA did not propose and today is not adopting 

any recordkeeping options for these three methodologies.

 Through this action EPA will allow any one of the three proposed 

methods and the fourth method discussed in the NPRM, or a combination 

of these methods to be used for determining the full charge of 

appliances. If the fourth method is chosen or used in combination with 

any of the other acceptable methods, the midpoint of the range will 

constitute the full charge for purposes of determining the leak rate. 

The owners and operators of the affected industrial process 

refrigeration equipment must keep records in accordance with 

Sec. 82.166(q), detailing the methodology used for determining and 

adjusting the range.

 Two commenters stated that the calculations required for 

determining the normal charge of industrial process refrigeration 

equipment should apply to the commercial and comfort-cooling sectors as 

well. One commenter believes that these other appliances have fieldinstalled 

interconnecting piping and there may not be any information 

available from the manufacturer indicating the normal refrigerant 

charge. Furthermore, the commenter requests that EPA publish guidance, 

including formulas, tables and sample calculations with enough detail 

that most owners affected by the leak repair provisions will be able to 

perform the necessary calculations. EPA does not agree with this 

commenter. In cases where a comfort-cooling or commercial refrigeration 

appliance is ``customized,'' EPA believes it is still relatively easy 

to derive the charge of the system. Field-installed piping can be 

measured and the refrigerant charge can, therefore, be calculated. 

Moreover, the owners or operators of such systems often hire 

contractors to service and maintain their appliances. These contractors 

should be able either to determine the full charge or to provide 

guidance on establishing leak rates. EPA believes that in most 

instances, these contractors will be better able to advise the owners 

or operators. Therefore, EPA does not believe it is necessary to 

specify how the full charge will be established for these sectors, nor 

to publish specific guidance.

 One commenter believes that EPA should exclude from any calculation 

of refrigerant leak rates the loss of refrigerant through a one-time 

accidental release, such as breaking pipes, a ruptured disc, or 

operator error. 

[[Page 40428]]

EPA disagrees with this commenter. While EPA understands that accidents 

do occur, EPA believes that if the events are such that the leak rate 

surpasses the 15 percent or 35 percent thresholds, the necessary 

repairs should be made to ensure that the owners or operators of the 

appliances are in compliance. Such repairs would include replacement of 

the broken pipe or rupture disk that led to the accidental release. 

Such repairs would also include correcting any condition that 

repeatedly led to an accidental release (e.g. over pressurization). 

Moreover, since many leaks occur because of one-time events, such as 

ruptured pipe, it would be impossible to draw clear distinctions of 

what would be included in leak repair calculations.

 One commenter stated that EPA should clarify that the owners or 

operators may hire contractors to determine the full charge. The 

commenter further believes that throughout the rule EPA should 

recognize the role of contractors who service refrigeration appliances. 

As stated earlier in this preamble, EPA recognizes that the owners or 

operators may have contractual arrangements with contractors or 

technicians who actually perform maintenance and repair work on the 

appliances subject to the leak repair provisions. While the work may be 

performed under such arrangements, the personnel are in effect acting 

as an agent of the owners or operators.

 One commenter stated that EPA should clarify how to determine the 

full charge for appliances with multiple independent compressors and 

refrigerant loops. As EPA has stated elsewhere in this notice, the 

charge of an appliance is based on the charge of an individual 

refrigerant loop/circuit where that loop/circuit is not interconnected 

and that contains a normal charge of 50 pounds of refrigerant or more. 

EPA distinguishes between those that are independent and those that are 

interconnected, perhaps employing multiple compressors (e.g. parallel 

systems).

4. Best Efforts

 EPA received several comments concerning the term ``best efforts,'' 

as used in Sec. 82.156(i)(2). Several commenters agreed with the 

Agency's interpretations. These commenters stated that it was 

appropriate to exclude formal protocols from the interpretation of best 

efforts because of wide variations in the regulated community. One 

commenter stated that each leak is unique and best efforts to repair a 

small leak will differ from those taken to repair larger leaks. A 

formal definition would either be too complex or ineffective at 

capturing all the scenarios.

 One commenter requested that EPA include a formal definition of 

best efforts in the final rule. The commenter stated that the lack of a 

formal definition could create uncertainty as to what the rule 

requires. The commenter recognized that the description of best efforts 

discussed in the NPRM originated with industry. The commenter provided 

two possible ways to better characterize a best efforts approach. The 

approach includes providing more description in Sec. 82.156(i)(2) and/

or creating a specific definition in Sec. 82.152. The commenter 

suggested the following definitions:

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 best efforts means a repair method is used that is reasonably 

expected to be effective on the particular type of leak, based on 

past experience;

 or

 best efforts means that, during an extension of the 30-day 

period for repairs, the owner or operator repairs significant leaks 

to the extent practical during the 30 days, by using a repair method 

that is reasonably expected to be effective based on past 

experience, on those leaks that do not require an extension of time.

 While EPA understands the benefits of having a formal definition 

for any term used in regulations, EPA does not believe these 

definitions solve the problem discussed in the NPRM. In the NPRM, EPA 

states that its concerns are the lack of formal protocols in the best 

efforts approach described by EPA. EPA characterizes a best efforts 

approach in the NPRM as implying that a methodology for repair that is 

reasonably expected to be effective based on past experience and 

potentially may include consultation (60 FR 3994). EPA does not believe 

the commenter's suggested language incorporates all of the concepts 

described in the NPRM. Adopting an inadequate definition does not 

benefit EPA or the regulated community. EPA requested comments on a 

definition hoping that perhaps an industry standard could be cited. 

Throughout the regulations promulgated under section 608, EPA refers to 

industry standards. Without the existence of such standards, EPA 

believes that a formal definition is not the best approach.

 Several commenters stated that EPA should modify the proposed 

regulatory language in Sec. 82.156 (i)(2) and (i)(2)(ii) to distinguish 

best efforts from sound engineering/professional judgment. The 

commenters are concerned that EPA erroneously included sound 

engineering/professional judgment in the definition of best efforts. 

The commenters stated that the intention behind best efforts was that 

the owners or operators should do what is necessary within reason to 

repair leaks within 30 days in situations where longer extensions 

beyond 30 days are necessary to conduct repairs due to the 

unavailability of spare parts or compliance with other federal, state, 

or local regulations. In further discussions with the commenters, it 

appears that over time any initial distinction that EPA and CMA made in 

the settlement agreement between best efforts and sound engineering/

professional judgment has become convoluted. EPA believes that the 

rationale for using the term best efforts for repairing leaks that 

required an extension beyond the initial 30 days was to ensure that 

where there are multiple leaks or where a leak can be partially 

repaired, the owners or operators will complete all reasonable actions 

during the initial 30 days. The result will be to reduce the leak rate 

as much as possible during the initial 30 days where additional time is 

necessary to complete all repair activities. Additional comments 

submitted by CMA confirm this interpretation. Therefore, EPA is 

amending Sec. 82.156(i)(2) to remove the references to best efforts. 

Instead, EPA will state that the owners or operators must conduct all 

necessary leak repairs that do not require additional time beyond the 

initial 30 or 120 days. EPA believes that this change in language more 

adequately conveys the intent of this provision, which is to allow 

additional time, while ensuring that all that can be done has been 

done.

5. Static and Dynamic Tests

 EPA received many comments supporting the use of static and dynamic 

tests. While these commenters agreed with the need for these tests, 

several suggestions for when the tests should be used and alternative 

terminologies were suggested. These comments will be discussed in 

greater detail later in this subsection. EPA received one comment 

opposing the use of static and dynamic tests. The commenter stated that 

static and dynamic tests are not precisely reliable methods on which to 

base a requirement to retrofit a piece of equipment. The commenter 

stated that it had documented cases where the results of such tests 

have been inconclusive. The commenter further believes that the tests 

are overly burdensome and unnecessary. The commenter believes that the 

tax and cost of refrigerants should provide the necessary incentives.

[[Page 40429]]

 EPA agrees that the expense of ozone-depleting refrigerants will 

influence the decisions made by many organizations. However, 

considering the size of the refrigerant charges for some of the 

appliances subject to the leak repair provisions, ensuring that 

appliances brought back on-line are no longer leaking above the 

threshold, is important. Also, often appliances may use an HCFC, which 

is not subject to federal tax. In the settlement agreement, EPA and CMA 

agreed to propose this verification approach. Since these tests are 

regularly performed to ensure that a leak has been repaired, EPA 

believes these requirements are not overly burdensome. Furthermore, EPA 

believes that performing such tests provides the owners or operators 

with a strong measure of insurance. Moreover, since EPA has proposed 

options other than retrofitting or retiring the leaky equipment, such 

as reducing other leak sources, EPA does not believe a retrofit or 

replacement decision would be based solely on one failed static or 

dynamic test. Therefore, EPA will require that the tests be performed.

 EPA received several comments regarding the use of the terms 

``static'' and ``dynamic.'' Commenters stated that uses of the terms 

``first verification test'' or ``initial verification test'' and 

``follow-up verification test'' would be more appropriate. Among the 

reasons suggested for this change is a concern that the terms static 

and dynamic have commonly understood meanings. Static generally means a 

system is at rest and dynamic generally means a system is operating. 

One commenter stated that during the settlement discussions the terms 

were crafted to discuss repairs, using the widely understood meaning. 

However, later it was realized that industrial process refrigeration 

equipment that was not shut down during repairs was neglected. The 

terms were then broadened to mean a first verification and a second 

verification test. After discussions with employees, the commenter now 

believes that the broadened definitions would likely cause confusion. 

Another commenter agreed that while the broadened definition captures 

the situations faced by the owners or operators, the language would be 

confusing. Several commenters suggested that the terms ``first'' or 

``initial verification test'' and ``follow-up verification test'' would 

be more accurate.

 EPA agrees with these commenters. The definitions of static and 

dynamic were broadened to capture real world situations. Since the 

settlement agreement bound the Agency to a proposal that included those 

terms, EPA did not consider the use of other language to describe the 

tests. However, EPA agrees that ``initial verification test'' and 

``follow-up verification test'' more accurately describe the tests, 

particularly since often the same types of tests qualify as both static 

and dynamic, depending on when they are performed. EPA believes 

changing the language would further clarify that the state of motion is 

not necessarily a criterion. Therefore, through this action, EPA will 

replace the proposed terms ``static'' and ``dynamic'' with the terms 

``initial verification test'' and ``follow-up verification.''

 Commenters suggested that EPA streamline the definition of initial 

verification test (static verification test) by removing illogical or 

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redundant statements. The commenters state that there is no need to say 

that the test will be performed before the appliance or portion of the 

appliance has reached operation at normal working conditions of 

temperature and pressure because it would not be possible for an 

appliance or portion of an appliance to do so without a full 

refrigerant charge. EPA understands the commenters' concerns. Clearly, 

without a full charge of refrigerant, normal working conditions of 

temperature and pressure cannot be reached. However, to limit the 

potential for misinterpretations, EPA would rather be overly explicit.

 One commenter requested that EPA distinguish between the terms 

steady-state operating conditions, steady-state operating 

characteristics, normal working conditions and normal operating 

conditions. The commenter stated that in engineering terms, these terms 

are not always equivalent. For example, if the values of all the 

variables in a process (e.g. all temperatures, pressures, volumes, flow 

rates, etc.) do not change with time, except for possibly minor 

fluctuations, the process is said to be operating at steady state. 

However, if any of the process variables change with time, transient or 

unsteady-state operating is said to exist. Depending upon the 

industrial process that the industrial process refrigeration equipment 

is supporting, its normal operation in strict engineering terms may be 

characterized as steady-state or unsteady-state. The commenter 

therefore believes it is more appropriate when referencing the 

operation state of the refrigeration equipment, for purposes of 

indicating when either verification test should be conducted, for the 

Agency to adopt the terminology ``normal operating characteristics and 

conditions.'' Furthermore, the commenter believes that normal operating 

characteristics and conditions has an understood definition equivalent 

to how the NPRM defines and refers to steady-state operations.

 While EPA received other comments supporting the use of the term 

steady-state, EPA agrees with the concerns regarding the potential for 

confusion. The use of the term steady-state in this context originated 

with the settlement agreement. While the proposed definition for 

steady-state appears acceptable to most of the affected industry, EPA 

is concerned that someone familiar with the engineering distinctions 

between steady-state and unsteady-state would be confused. Therefore, 

EPA believes it is appropriate to replace ``steady-state'' with 

``normal operating characteristics and conditions.'' EPA will not be 

revising the definition in any substantive manner; therefore, the 

definition itself will be consistent with the spirit of the settlement 

agreement.

 Several commenters raised concerns on when a follow-up verification 

test is performed. The commenters are concerned that the NPRM does not 

properly consider occasions where a verification test at normal 

operating characteristics and conditions is impractical or less 

meaningful. Commenters stated that there are repair situations where 

the repair sites will not be accessible to perform a meaningful 

verification test after the industrial process refrigeration equipment 

is returned to normal operating characteristics and conditions. One 

example would be a verification test for leaks inside a heat exchanger. 

The tests can be performed while the exchanger is open. A test 

performed after the exchanger is reassembled would not be as 

meaningful. Other examples provided by the commenters include: 

compressor internals, locations that must be re-insulated prior to 

start-up, and locations in close proximity to dangerous hot equipment 

or moving parts where access is not possible after reassembly. EPA did 

discuss whether it would be appropriate to permit follow-up 

verification tests prior to returning to normal operating 

characteristics and conditions; however, EPA did not propose to allow 

these alternative tests. Commenters stated that since there are 

situations where the tests prior to a return to normal operating 

characteristics and conditions will be more meaningful and reliable, 

EPA should permit sound engineering/professional judgment to be used to 

determine what the appropriate operational state of industrial process 

refrigeration equipment should be when the follow-up verification tests 

are 

[[Page 40430]]

conducted. One commenter stated that EPA should take confidence in the 

fact that leak detection and repair of appliances did not originate 

with section 608; it has been an integral part of maintenance practice 

for many years.

 EPA agrees that in certain circumstances, performing a follow-up 

verification test prior to normal operating characteristics and 

conditions may be more meaningful and reliable. Performing multiple 

verification tests may be appropriate under many conditions. One of the 

Agency's concerns, however, was that until normal operating 

characteristics and conditions are achieved, it may be unclear if the 

leak repair work was truly successful. EPA was concerned that at less 

than true operational state, a particular fix may not hold. The Agency 

understands that leak detection and repair has been part of this 

sector's practices before the development of these regulations. 

Furthermore, EPA believes that as class I and class II refrigerants 

become less readily available, leak detection and repair efforts may 

increase. Moreover, EPA believes that in most cases the owners or 

operators rely on personnel with appropriate professional judgment in 

determining the best way to repair and verify the repair of a leak 

source. Therefore, through this action EPA will amend the proposed 

requirements for performing follow-up verification tests. EPA will 

require that the test be performed at normal operating characteristics 

and conditions unless sound professional judgment determines that a 

follow-up test should be performed prior to returning to normal 

operating characteristics and conditions.

 EPA received several comments requesting that the Agency clarify 

that initial and follow-up verification tests are to be performed even 

when repairs are made within 30 days. One commenter stated that the 

NPRM was unclear. The commenter believes that as a practical matter, 

and to minimize confusing plant operations, it would be preferable to 

treat all repairs equally, and to require documentation that tests 

should be done to verify a successful repair. Another commenter stated 

that these tests are a measure of compliance. Another commenter stated 

that the settlement agreement makes no mention that these requirements 

must be met only in cases where the owners or operators are granted 

additional time. Furthermore, the settlement agreement does not limit 

these tests to situations where an industrial process shutdown has 

occurred, or where the repairs were made while an appliance was 

mothballed. This commenter believes that, with regards, to the 

performance of these tests, the regulatory language should be in full 

agreement with the settlement agreement.

 EPA agrees that the tests demonstrate whether a leak repair effort 

was successful or not, though the tests do not necessarily mean that 

the leak rate has been sufficiently reduced. In addition, EPA 

understands that often these tests have been routinely performed 

regardless of any regulatory requirement. EPA believes that many 

organizations have internal policies requiring that verification tests 

be performed. EPA agrees that having a consistent requirement that can 

easily be paraphrased for technicians is useful. Moreover, EPA does not 

believe requiring these tests in all circumstances equates to any 

substantial burden to industry. Therefore, EPA will require that 

initial and follow-up verification tests be performed when repairing 

leaks on industrial process refrigeration equipment where such leakage 

has surpassed the 35 percent annual leak rate.

 One commenter requested that EPA clarify that the verification 

tests demonstrate the success of a leak repair, not that the leak rate 

has been reduced below the threshold. EPA agrees with this commenter. 

It was not EPA's intention to imply that the verification test shows 

what the leak rate is. However, EPA believes that where the 

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verification test shows that the repairs have been successful, in most 

cases this will mean that there has been a reduction in the leak rate. 

If more than one leak exists, it is possible that the leak rate could 

remain above acceptable levels. In such cases the owners or operators 

would be expected to take reasonable actions.

 Two commenters stated that where an industrial process shutdown is 

not required, the initial and follow-up verification tests will be 

identical; therefore, a follow-up verification test is unnecessary. EPA 

disagrees with these commenters. While the same test might be 

performed, the fact that the tests are performed at different times is 

important. If a repair consists of tightening flange bolts, for 

example, it may appear that a repair is successful during an initial 

verification test. However, it may not be immediately obvious that the 

repair was unsuccessful. A bolt may appear to have been tightened 

sufficiently; however, if the threading is damaged, it may loosen in a 

short period of time. Performing a follow-up verification test will 

demonstrate that a problem still exists. EPA believes that even when an 

industrial process shutdown is not necessary, initial and follow-up 

verification tests will play vital roles. Therefore, EPA is requiring 

that both initial and follow-up verification tests be performed when 

repairs are made even if an industrial process shutdown is not 

required.

 EPA received one comment requesting that more than one follow-up 

verification test be permitted before an owner or operator must notify 

EPA of a failure. The commenter is concerned that situations could 

arise in which a follow-up verification test may indicate a failure 

even though in reality the leak has been fixed. The commenter suggested 

that it would be more reliable in the event that the test was 

inconsistent with the expected results, that subsequent tests be 

permitted to be performed during the 30-day period. EPA understands 

this commenter's concerns. Since repairs are often interrelated, tests 

may demonstrate a need to continue repair efforts. EPA proposed to 

permit the follow-up verification test to occur within 30 days. 

However, since the Agency is revising the terminology used in the NPRM 

to first repair efforts and second repair efforts, EPA believes the 

issue has been resolved. Tests will be completed after the repair 

efforts are complete.

 EPA received comments concerning the interpretation and use of 

sound engineering/professional judgment. Commenters stated that EPA 

should not incorporate sound engineering/professional judgment into the 

interpretation of best efforts. Sound engineering/professional judgment 

should only be discussed in relation to verification tests. EPA has 

already addressed the commenters' concerns about the NPRM's 

incorporation of sound engineering/professional judgment with the use 

of best efforts.

 A few commenters stated that since the decision-making process may 

not be performed by an engineer, the use of the term engineering is 

inappropriate. In the NPRM, EPA states that sound engineering or 

professional judgment means a ``combination of the use of logic and 

operational experience, with methods of calculation that are practical, 

based on training, experience and education'' (60 FR 3997). EPA agrees 

that in many cases the professional making the decision may not be an 

engineer. Therefore, EPA will use the term, ``sound professional 

judgement.''

 One commenter stated that sound professional judgement should be 

employed to determine where and which initial and follow-up 

verification tests should be performed, whenever 

[[Page 40431]]

leaks that are subject to the leak repair requirements for industrial 

process refrigeration equipment must be repaired. EPA agrees with this 

commenter.

 Another commenter stated that fluorescent dye combined with a leak 

monitoring UV light source should be considered an acceptable initial 

or follow-up verification test. In the NPRM, EPA discussed three types 

of verification tests. EPA states that the three discussed represent 

examples that EPA believes would be considered acceptable forms of 

verification tests. EPA states that other types of tests may exist (60 

FR 3997). EPA believes that sound professional judgement should be 

employed when determining the type of verification test that is 

appropriate for the particular leak. Therefore, it is not necessary for 

EPA to state which tests are acceptable. However, EPA would like to 

clarify that any verification test must be acceptable under all other 

regulatory requirements. For example, if fluorescent dye was combined 

with an ozone-depleting substance, where that ozone-depleting substance 

is used to propel the dye from a pressurized dispenser into the 

appliance, that application would be banned under the nonessential 

products ban promulgated under section 610 of the Act.

 EPA received one comment regarding the need to perform verification 

tests if the owner or operator determines that the industrial process 

refrigeration equipment should be retrofitted. For example, if the 

leaky equipment is shut down to perform repairs on the heat exchanger, 

and as the repair work begins, it is determined that the compressor is 

about worn out, the owner or operator may choose to retrofit or replace 

the system rather than complete repairs. The commenter believes that 

under these circumstances the obligation to perform the verification 

tests should be lifted. EPA agrees with this commenter. If the owner or 

operator is switching to a retrofit, replace, or retire mode, the 

obligation to bring the leak rate below 35 percent is suspended. 

Therefore, it is not necessary to perform tests to verify the success 

of individual leak repair efforts.

 EPA received an additional comment concerning the use of 

verification tests when the owners and operators are retrofitting or 

replacing the appliance. The commenter was concerned that the proposed 

language would obligate owners or operators to perform verification 

tests on replaced or retrofitted equipment. EPA agrees that these tests 

are not necessary for replaced or retrofitted equipment.

6. Fixing Other Leaks

 EPA received one comment regarding what happens if EPA disapproves 

the parameters for fixing leaks. In Sec. 82.156(i)(4), EPA stated that 

if repairs fail a follow-up verification test, the owner or operator 

could choose the option of doing whatever it takes to get the rate 

below the threshold within 180 days. It is anticipated that the owner 

or operator will follow parameters from earlier notifications. EPA may 

disapprove of those parameters; however, the parameters are deemed 

approved if EPA does not object within 30 days after receiving notice. 

The commenter supports this approach, but is concerned about what 

happens if EPA disapproves. In such cases the commenter suggests that 

the owner or operator and EPA should reach agreement on what parameters 

will be used. EPA agrees with the need to specify what will occur if 

the EPA objects to the parameters. If this situation occurs, in all 

likelihood, EPA will consult with the owner or operator. However, EPA 

and the owner or operator may not necessarily ``reach agreement.'' 

Through this action, EPA will specify that where EPA objects to the 

submitted parameters for bringing the overall leak rate below the 

applicable threshold, EPA will select appropriate parameters. In all 

likelihood, this selection will be made expeditiously since the 

applicable timelines will remain in effect. If such disapproval 

significantly limits the ability of the owners or operators to comply 

with appropriate timelines, EPA may consider granting an extension. If 

no agreement can be reached, it is anticipated that the course of 

action may be to retrofit or replace the affected industrial process 

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refrigeration equipment. Under such circumstances, EPA may need to 

consider providing additional time for the owners or operators of the 

affected industrial process refrigeration equipment to complete 

retrofit or replacement activities.

 EPA received several comments supporting the provision relieving 

the owner or operator of the obligation to retrofit or retire 

industrial process refrigeration equipment where, within 180 days, the 

owner or operator has reduced the leak rate to below 35 percent by 

completing other repairs and tightening the operation of the appliance. 

These commenters believe that by reducing the amount of refrigerant 

being released, the owner or operator has met the goals of the leak 

repair provisions although the original leak remains.

 EPA received one comment suggesting that the Agency should permit 

one year instead of 180 days. The commenter believes that providing 

additional time will not detract from the requirement to retrofit or 

replace the appliance. EPA disagrees with this commenter. EPA believes 

that to complete retrofit or replacement activities within one year, it 

would be necessary to perform preparatory work on the same appliance. 

The lack of clear direction between retrofitting and repairing the 

appliance that late in the year may influence the ability of the owner 

or operator to complete retrofit activities. Furthermore, EPA believes 

that where the leak rate can be reduced to below the applicable 

threshold, 180 days should be sufficient time. The leak repair 

provisions being promulgated through this action are designed to 

provide greater flexibility without compromising the goals of reducing 

emissions. To achieve this goal EPA proposed the shortest amount of 

additional time necessary to complete repairs. Therefore, EPA does not 

believe it is necessary to further extend this provision.

 EPA received one comment requesting that the Agency specify that 

Sec. 82.156(i)(3)(v) only apply where repairs have failed a follow-up 

verification test and the owners or operators have chosen to do 

whatever it takes to bring the leak rate below the applicable 

threshold. EPA agrees that there are other options available to the 

owners or operators. Therefore, through this action, EPA will clarify 

that the owner or operator may choose this option, but that other 

options, such as retrofitting the appliance, also exist.

 EPA received several comments supporting the need to switch to the 

retrofit or replacement mode after discovering that successful leak 

repairs cannot be made in accordance with the necessary timelines. EPA 

received one comment suggesting that when a switch is made from a 

repair mode to a retrofit/replacement mode, the owner or operator of 

that industrial process refrigeration equipment should be held to the 

normal deadlines for retrofitting or retiring the appliance. The 

commenter stated that if the owner or operator has spent a month trying 

to fix the leaks, the owner or operator would have eleven months left 

for retrofitting, replacing, or retiring the equipment. EPA agrees with 

this commenter.

 EPA received several comments supporting the need for additional 

time to complete the retrofit or retirement of industrial process 

refrigeration equipment beyond one year. One commenter stated that EPA 

should 

[[Page 40432]]

clarify however, that additional time should be permitted under 

Sec. 82.156(i)(7)(i), not one additional year. In some cases, more or 

less than one year is appropriate. One commenter stated that additional 

time, up to one additional year, should be permitted under 

Sec. 82.156(i)(7)(ii). The commenter also stated that where additional 

time beyond the initial additional ``year'' is permitted in 

Sec. 82.156(i)(7)(iii), EPA should explicitly state that additional 

time beyond the one year is permitted, not an additional year. EPA 

agrees with these commenters.

F. Industrial Process Shutdown

 EPA received several comments supporting the extension to complete 

repairs when an industrial process shutdown is required. One commenter 

suggested that the term process shutdown should not be used 

interchangeably with the term industrial process shutdown. To provide 

clarity and consistency, the commenter believes the Agency should use 

and define the term industrial process shutdown exclusively. EPA agrees 

with this commenter. Therefore, EPA will define and use the term 

industrial process shutdown, instead of process shutdown.

 EPA received one comment stating that the need for additional time 

beyond the 120 days permitted for an industrial process shutdown may 

not be evident within the initial 30-day repair period. The commenter 

is concerned that an initial determination that no other federal, 

state, or local regulations apply may be made by the owners or 

operators. It is also possible that within the initial 30 days the 

owners or operators may not realize that the appliance requires parts 

that are unavailable. After the industrial process shutdown is 

complete, possibly as late as day 115, such a determination may be 

made. Under those circumstances, the commenter is concerned that 

additional time beyond the 120 days would no longer be available. EPA 

understands these concerns. While the Agency believes that in most 

cases the owner or operator will know that other regulations will delay 

repairs or that the parts are not readily available within 30 days, it 

is possible that such a determination will not be known in advance of 

completing the industrial process shutdown. Therefore, through this 

action, EPA will specify that additional time is available beyond the 

30-day or 120-day repair period where other federal, state or local 

regulations are applicable or where the necessary parts are 

unavailable. Only the additional time needed to receive delivery of the 

necessary parts or comply with the pertinent regulations will be 

permitted.

G. Retrofitting or Replacing Equipment

 EPA received several comments concerning retrofitting or replacing 

equipment. Commenters supported the proposal to permit additional time 

where specific circumstances exist. Comments about specific aspects of 

the proposal are discussed below.

 EPA received one comment asking for clarification regarding the 

process of notification to EPA if repairs done in good faith are not 

successful and retrofitting must be pursued. The concern is that there 

may be cases where a repair requires an industrial process shutdown. If 

the ``clock'' for notifying EPA begins the date the leak rates are 

discovered, there may be cases where six months has passed. Therefore, 

the commenter suggested that EPA permit six months from the date the 

decision to retrofit is made. EPA disagrees with this commenter. EPA 

believes six months provides enough time both when the 30-day timeline 

and 120-day timeline apply. The owners or operators would have 

acceptable time to make repairs, to determine that retrofitting is 

appropriate, and to submit any required information.

 EPA received a few comments concerning returning equipment to 

operation after the decision to retrofit, replace, or retire the 

appliance has been made. One commenter stated that EPA should allow an 

owner or operator to start up and operate appliances that the owner or 

operator determines, after attempting to repair leaks, cannot pass an 

initial verification test, if the owner or operator plans to retrofit 

or replace the appliance in accordance with Sec. 82.156(i)(6) or such 

longer time as may apply in accordance with Sec. 82.156(i)(7) (i), (ii) 

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and (iii) or Sec. 82.156(i)(8) (i) and (ii). EPA agrees with these 

commenters. If the owners or operators of affected industrial process 

refrigeration equipment attempt to repair leaks, but determine the need 

to retrofit or replace the equipment in accordance with the provisions 

promulgated through this action, the affected industrial process 

refrigeration equipment may be brought back on line without an initial 

or follow-up verification test.

 EPA received related comments concerning the ability of the owners 

or operators to switch from the repair to the retrofit mode, and from 

the retrofit to the repair mode. One commenter stated that as long as 

all applicable deadlines are met, the owners or operators should have 

the flexibility to change their initial determination of retrofitting 

or repairing the industrial process refrigeration equipment. EPA agrees 

that as long as all applicable deadlines are met, the owners or 

operators may change their initial decision to retrofit, replace, or 

repair leaky industrial process refrigeration equipment.

 One commenter stated that the proposed requirement to develop 

retrofit plans within 30 days would be difficult for large industrial 

process refrigeration equipment. It may take time for the owners or 

operators to determine the cause of the leak and whether the best 

course of action is to repair or retrofit the appliance. The commenter 

requests that EPA permit 90 days for the owner or operator to obtain 

all the appropriate information to complete a valid retrofit or 

retirement plan. The commenter believes this is consistent with EPA's 

recognition that it may take time for the owners or operators to 

evaluate the available options. EPA agrees that it may take time to 

evaluate the available options; however, EPA does not believe it is 

necessary to permit 90 days to develop retrofit or retirement plans. 

EPA believes that system mothballing and the ability to switch from a 

repair mode to a retrofit mode provide the owner or operator of the 

affected appliance with sufficient time to develop such plans. EPA 

believes that particularly where the type of leak is unknown, most 

owners or operators will attempt to identify and repair the leak first. 

Therefore, EPA does not believe it is necessary to require additional 

time to develop retrofit or retirement plans.

 EPA received one comment regarding when the clock starts for 

retrofitting a system. The commenter is concerned that 

Sec. 82.156(i)(3)(ii) permits the owner or operator of industrial 

process refrigeration equipment to determine the need to retrofit 

industrial process refrigeration equipment after a failed follow-up 

verification test; however, Sec. 82.156(i)(6) states that all work 

under the plan must be completed within one year of the plan's date and 

the plan must be developed within 30 days of discovering the leak. The 

commenter is concerned with this apparent inconsistency. EPA agrees 

with this commenter's concern. While in general, plans are to be 

developed within 30 days of discovering the leak, this final action 

provides opportunities for the owners or operators to switch to a 

retrofit mode. EPA will modify the language in Sec. 82.156(i)(6) to 

reflect these scenarios.

 EPA received one comment requesting, that if the owner or operator 

intended to retrofit or replace an 

[[Page 40433]]

appliance, and developed an appropriate plan, and if the owner or 

operator later determines that the normal charge of the appliance was 

not correctly calculated, the owner or operator should be relieved of 

the obligation to retrofit or replace the appliance and therefore, be 

able to withdraw the plan. The commenter states that if the appliance 

was overcharged, the calculations would be incorrect. EPA understands 

these commenters concerns. As discussed above, EPA realizes that owners 

or operators may not have kept records of refrigerant charges prior to 

the promulgation of regulations under section 608. Therefore, EPA will 

permit the owner or operator to withdraw a retrofit or retirement plan 

if the calculations of the full charge used to determine the leak rate 

were incorrect. However, the owner or operator retracting such a plan 

will need to demonstrate clearly that the original determination was 

incorrect and why. EPA will be particularly concerned where the fourth 

methodology for determining the full charge was used. Where a range is 

used to establish the full charge and that range is altered, EPA is 

requiring that records be maintained and be made available to EPA upon 

request.

H. Recordkeeping and Reporting Requirements

 EPA received several favorable comments regarding the proposed 

recordkeeping and reporting requirements. One commenter stated that 

although the recordkeeping and reporting requirements are more detailed 

than those promulgated in May 1993 and that they do constitute an 

additional burden, the commenter supports the requirements. The 

commenter believes the requirements are necessary to allow EPA the 

opportunity to verify that best efforts were expended to find and 

repair leaks. Another commenter stated that the provisions mostly 

appear necessary and appropriate, in order to assure compliance. This 

commenter did offer minor suggestions for the requirements that are 

discussed below. EPA received two negative comments on recordkeeping 

and reporting comments. One commenter stated that the provisions appear 

to be extremely burdensome and time consuming. This commenter feels 

that more flexibility should be provided and that incentives to 

expeditiously fix leaks and even retrofit will be derived from the cost 

of refrigerant. The commenter further stated that the NPRM contains 12 

separate reporting items subject to noncompliance enforcement actions 

and strict deadlines while providing no environmental benefit. The 

second commenter stated while most of the requirements for 

recordkeeping and reporting seem justified, Sec. 82.166(n) should not 

include recordkeeping or reporting requirements for Sec. 82.156(i) (3) 

(iii), (iv), and (iv) because they are too burdensome. EPA disagrees 

with these commenters. This rulemaking, in its entirety, is designed to 

provide greater flexibility to the industry. The rule will alleviate 

stringent repair and retrofitting timelines and allows for more 

flexible approaches for lowering the overall leak rate of affected 

appliances. EPA has proposed and today is adopting reporting and 

recordkeeping requirements in conjunction with the more flexible 

approach to ensure compliance with this less stringent scheme. EPA 

recognizes that the reports themselves do not constitute an 

environmental benefit. However, ensuring compliance with this new leak 

repair scheme does provide a benefit. The three specific provisions 

cited by the second commenter are pertinent to EPA. One provision 

reports the results of a failed follow-up verification test. This 

failure is a trigger for the owner or operator to choose a new course 

of action. Notification to EPA of the failure is important and would 

accompany other required information. The other two provisions 

communicate the results of either successful second repair efforts or 

tightening other aspects of the appliance to reduce the leak rate below 

the threshold. Since these events result in relieving the owner or 

operator of having to retrofit or replace the appliance, it is 

essential for the owner or operator to notify EPA. These recordkeeping 

and reporting requirements are not always required. If the owner or 

operator of the industrial process refrigeration equipment can complete 

repairs successfully during the initial 30 days, there are no 

applicable recordkeeping or reporting requirements.

 One commenter suggested that EPA clarify that only the information 

listed in Sec. 82.166 (n),(o) and (p) must be maintained. The commenter 

suggested several other language changes to ensure an understanding of 

the terminology used. Particularly, the commenter suggested and EPA 

clarified through the terms, ``fix all other outstanding leaks,'' ``onsite,'' 

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``refrigeration facility,'' and ``time changes.'' Another 

commenter suggested that EPA clarify under what circumstances specific 

data elements should be included. EPA has changed the language in 

Sec. 82.166 (n), (o), (p), and in the newly added (q) so that these 

sections clearly reflects EPA's intent.

 EPA received comments regarding notification to EPA of changes from 

the original estimates concerning repair work. One commenter stated 

that it was unclear and confusing in both the preamble and the 

regulatory language regarding time changes for completion of work from 

the original estimates. The commenter believes that EPA should require 

notification only if the estimated date of completion of work changes 

and results in moving the completion date forward. Other commenters 

noted that if EPA reviewed every adjustment in the affected repair 

schedules, EPA would receive many unnecessary notices and companies 

would face additional compliance burdens. EPA agrees with these 

commenters. EPA is only concerned when the estimated date of completing 

work results in extending the date of completion, thus increasing the 

potential for refrigerant releases. Through this action EPA will change 

the proposed regulatory language to state that when the repair schedule 

results in extending the date of completion, the reasons for these 

changes must be documented and submitted to EPA within 30 days of 

discovery of the change in timing.

 EPA received comments concerning the potential for the owners or 

operators of industrial process refrigeration equipment to be placed in 

a situation where they will not be able to comply with their original 

schedules because the vendor is unable to meet the delivery schedule 

previously supplied to the owner or operator. For example, if a vendor 

quotes 20 weeks for delivery and in week 18 changes that estimate to 36 

weeks, the owners or operators of the affected appliances will be 

forced to reconfigure their installation schedules. EPA understands the 

concerns raised by these commenters. If a critical component is 

delayed, this might influence whether the owner or operator can meet 

their schedule. EPA is aware that often a retrofit will involve several 

vendors. In some cases non-critical components may be delayed. It may 

be possible to rearrange the schedules to install delayed parts later. 

Where these parts must be on hand for work to proceed, delays in 

delivery by the vendors could result in missed deadlines by the owners 

or operators. Therefore, through this action, EPA will permit an 

extension of the original deadlines where delays by vendors limit the 

ability of the owners and operators to proceed with their retrofit or 

replacement activities. Extensions will be based on the delivery date 

for the necessary components. 

[[Page 40434]]

 EPA received one comment requesting that instead of filing for 

additional time beyond the initial one-year period six months after the 

expiration of the 30-day period following the exceedance of the 35 

percent leak rate, the owner or operator of the industrial process 

refrigeration equipment should submit information requesting additional 

time 10 months from the expiration of the 30-day period. The commenter 

argues that since the materials involved in construction of custombuilt 

equipment may not normally be used by a refrigeration vendor, it 

is common for delivery dates to slip. The commenter believes that an 

owner or operator may request additional time even where it is unclear 

that such time is actually necessary. However, if the owner or operator 

must make the decision to request additional time at 10 months instead 

of six months, the owner or operator may be more realistic in his/her 

evaluation. While EPA understands these concerns EPA does not believe 

it is appropriate to postpone the date. EPA believes that in most cases 

it will be clear at six months if additional time will be necessary. 

Furthermore, EPA would prefer that those who are unsure if an extension 

will be necessary still notify the Agency. If EPA believes the request 

is unjustified, EPA can notify the owner or operator of such a 

determination. It would be inappropriate for the owners or operators to 

make such requests at the 10-month mark where EPA has 60 days to notify 

the owner or operator if the request was rejected.

 EPA received comments concerning the need to clarify that in 

particular circumstances, all the information listed in Sec. 82.166(n) 

would not need to be included in a report submitted to EPA. EPA agrees 

with this commenter. In the NPRM (60 FR 3995) EPA indicates that under 

certain circumstances particular items listed in Sec. 82.166(n) would 

not be expected. However, EPA did not include this information in the 

regulatory text. Moreover, EPA understands that while combining the 

recordkeeping information list appears to simplify the provisions, 

misinterpretations could arise. Therefore, EPA has clarified the 

recordkeeping provisions in this final action by stating under what 

circumstances specific data elements are or are not required.

 EPA received one comment regarding the need to modify the language 

in Sec. 82.166(n) and (o). In the NPRM these provisions used the 

language, ``industrial process refrigeration equipment,'' while the 

requirements are also applicable to the federally-owned commercial and 

comfort-cooling appliances. EPA agrees with these comments and has made 

the necessary changes.

 One commenter stated that EPA should revise Sec. 82.156(i)(7)(i). 

The NPRM states that information, in accordance with Sec. 82.166(o), 

will be submitted to EPA and within 60 days EPA will notify the owner 

or operator of its determination. The commenter suggests that instead, 

the request for additional time should be deemed acceptable unless the 

Agency notifies the commenter within 60 days. EPA disagrees with this 

commenter. EPA has permitted for an automatic process of granting up to 

one year where the conditions of Sec. 82.156(i)(7)(ii) apply. EPA 

distinguished between these two provisions because if the conditions of 

Sec. 82.156(i)(7)(i) apply, the Agency can grant as much time as 

necessary. This provision is far more open-ended than 

Sec. 82.156(i)(7)(ii). Therefore, EPA continues to believe it is 

necessary for the Agency to review the request for additional time, 

agree that time to the extent reasonably necessary can be granted, and 

notify the owner or operator of EPA's decision.

 EPA received one comment requesting notification of the proper 

address for submitting reports to the Agency. EPA will cross reference 

the address listed in Sec. 82.160: Section 608 Recycling Program 

Manager, Stratospheric Protection Division, 6205J, 401 M Street, SW., 

Washington, DC 20460.

I. Purged Refrigerants

 EPA received several comments regarding the treatment of purged 

refrigerants that are destroyed. The commenters agreed that if the 

refrigerant is not vented to the atmosphere, but is instead destroyed, 

the material did not leak and should not be included in any leak rate 

calculations. Several commenters suggested that records be kept on-site 

by the owners or operators and be made available to EPA upon request. 

One commenter stated that a requirement to notify EPA will prove to be 

a resource drain for EPA and will only provide a minimum environmental 

benefit. EPA agrees with these commenters and will require that records 

indicating the amount of purged and destroyed refrigerant be maintained 

and made available to EPA upon request.

 One commenter requested that EPA exempt from leak detection 

determinations any refrigerant purged and destroyed where the 

destruction can be verified, regardless of the technology utilized. The 

commenter stated that refrigerant that is leaked into a system, then 

converted to elemental compounds or other non-ozone-depleting 

substances, by a process reactor or a hydrochloric acid burner should 

qualify for this exemption. In discussions with the Agency, commenters 

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indicated that where an owner or operator decides to take credit for 

destroying purged refrigerant, it will be possible to find an 

appropriate method for verifying how and how much refrigerant was 

destroyed, if the refrigerant is ``completely destroyed'' for purposes 

of the phaseout regulations promulgated under sections 604 and 606 of 

the Act. EPA agrees with these commenters. While effective destruction 

of purged refrigerants can take place in a number of technologies, EPA 

does wish to ensure high efficiency. Therefore, so that purged 

refrigerant is not counted as part of the leak rate, today's rule will 

require purged refrigerant to be destroyed at a destruction efficiency 

of 98 percent or greater, consistent with both the phaseout and the 

labeling rules. Any destruction technology may be used for the purposes 

of destroying purged refrigerants under this rule, as long as the 

destruction efficiency is at least 98 percent.

J. Federally-Owned Chillers

 EPA received several comments regarding the proposed requirements 

for federally-owned chillers. Several commenters supported the proposed 

language with only minor changes. A few commenters stated that EPA 

should broaden the requirements to allow additional time for nonfederally -owned appliances to repair leaks. The commenters were 

concerned with manufacturing backlogs. One commenter stated that the 

Federal government should abide by the same rules as industry, noting 

that if federal entities are having trouble meeting timelines, large 

private companies may also be having the same problems. One commenter 

stated that if federal facilities cannot meet the time frames, then 

state and local governments may have similar difficulties. The 

commenter believes that giving an extension of time only to federal 

facilities could be viewed by the states and local governments as a 

mandate to them and an excuse for the federal government. One commenter 

stated that since the federal procurement process is governed by 

federal regulations a specific exemption was not necessary.

 Several commenters stated that they are troubled that EPA has 

proposed to extend the sound professional judgment 

[[Page 40435]]

and verification testing requirements to the owners and operators of 

federally-owned commercial refrigeration appliances for three reasons. 

First, because the owners or operators were not part of the settlement 

agreement between EPA and CMA. Second, because the commenters believe 

that EPA incorrectly stated that minor aspects of this rulemaking 

affect federally-owned chillers. Finally, because the commenters 

believe that this rulemaking constitutes an additional burden and that 

further legal action may be taken by the owners or operators of 

federally-owned chillers.

 EPA understands all the concerns submitted by the commenters. In 

the NPRM, EPA states that the Agency received information from the 

Department of Energy (DOE) indicating a need for the proposed 

extension. EPA discussed with DOE the proposed language, including the 

use of verification tests. DOE understood and agreed with the 

requirements. Comments received during the public comment period from 

DOE suggest clarifications to the proposed regulatory language. DOE is 

the only federal entity to submit comments specific to this 

requirement.<SUP>2 EPA believes that in most cases federal entities 

should be able to repair appliances within 30 days or retrofit/replace 

equipment within one year, and that only under limited circumstances 

will this extension apply to federally-owned appliances.

 \2\ Additional comments were received by the Tennessee Valley 

Authority concerning electricity generated by a nuclear power 

reactor, not the exemption for federally-owned chillers.

 EPA did not receive any comments during the public comment period 

from state or local governments regarding this proposal. Also, EPA 

received no information regarding the need for extensions for state and 

local governments prior to issuing the NPRM. Since EPA often receives 

formal and informal comments from state and local entities, EPA can 

only conclude that state and local entities do not believe an extension 

is necessary. The only comments regarding such an extension for state 

and local entities came from private-sector organizations.

 One commenter stated that since the federal procurement process is 

governed by federal regulations, a de facto exemption exists without 

EPA specifying an exemption. EPA disagrees with this commenter. EPA is 

today providing additional time based on compliance with other federal, 

state, and local regulations for industrial process refrigeration 

equipment. This provision is applicable for both private and publicly 

owned or operated industrial process refrigeration equipment. However, 

it is not applicable to for comfort-cooling or commercial appliances. 

An additional exemption for federally-owned chillers not used for 

industrial process refrigeration equipment is necessary. Without such a 

provision, additional time based on federal, state, and local 

regulations would not apply.

 EPA understands that often large private-sector organizations may 

have complicated procurement requirements. However, private-sector 

organizations do not need to go through public notice and comment to 

amend procurement practices.

 Private-sector organizations can effect changes in order to ensure 

compliance. EPA proposed this extension because federal government 

officials are bound to follow federal regulations regarding the 

purchasing. There are only limited circumstances for expediting a 

specific purchase or changing the procedures quickly. EPA recognizes 

that the federal government is addressing the needs to provide more 

flexibility for contract and procurement officers to expedite the 

purchasing of the most cost-effective services and supplies. These 

changes, however, have not yet alleviated all the hurdles faced by 

those procuring appliances subject to this rulemaking.

 In the NPRM, EPA focused on the procurement side of the issue. 

Based on additional comments from DOE, EPA understands that, in 

reality, the concerns raised by DOE also address how funding is 

appropriated, as well as environmental and health concerns associated 

with specific appliances owned or operated by DOE.

 EPA recognizes that most of the appliances DOE is concerned with 

are unique, even amongst the appliances owned or operated by the 

federal government. DOE believes that in most cases it will be able to 

comply with the 30-day and one-year requirement. However, appliances 

used in the production of nuclear weapons and appliances located in 

areas subject to radiological contamination must comply with a unique 

set of environmental and public safety activities. It may be necessary 

to confront specific radiological concerns prior to beginning the 

process of locating and repairing leaks.

 In the NPRM, EPA stated that the Agency intended for this exception 

to only be used in limited cases. EPA continues to believe that an 

extension for federally-owned appliances is appropriate; however, EPA 

recognizes that the proposed extension was overly broad. For example, 

DOE uses hot cells at a number of its facilities to process radioactive 

and radioactively-contaminated materials for research laboratories and 

medical isotope production. Refrigeration appliances serving hot cells 

may be standard chillers that are used for safe operation by the 

maintenance of specific temperatures. Hot cells use shielding windows 

for viewing manipulator operations. These windows are filled with 

mineral oil or zinc bromide fluids, that also act as radiation shields. 

If temperatures rise, the window gaskets could leak, the shielding 

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fluid levels could fall, and the hot cell contaminants might be 

released, thus, posing a potentially serious safety hazard to the 

operators. If a refrigeration appliance serving a hot cell fails or 

leaks excessively, it may take several weeks for the radioactive 

materials in the cell to be placed in a stable condition, such that the 

materials can be handled safely. The use of temporary cooling 

appliances in these circumstances is not a viable option due to nuclear 

safety requirements. Thus, similar to industrial process equipment, the 

hot cell operations must be shut down to minimize safety hazards, and 

such a shutdown may take several weeks to be accomplished. In these 

situations, repair work may not be able to be completed within 30 days, 

since that work must be performed under safe conditions. EPA believes 

that there are a limited number of appliances that are confronted with 

this or similar situations. Therefore, the extension of the 30-day 

repair requirement would be limited. In most cases, similar to where an 

industrial process shutdown is required, 120 days will permit for the 

safe shutdown of the hot cells and for repair work to occur.

 EPA estimates that even where radiological contamination exists, 

extensions will be used only to a limited degree. Moreover, EPA does 

not believe it is appropriate to broaden this extension to appliances 

owned by state and local governments since EPA is not aware of any 

state or local government faced with an analogous scenario. Therefore, 

federally-owned commercial and comfort-cooling refrigeration appliances 

will be permitted 120 days for repairs to be completed if the appliance 

is operating in, or sustaining activities and located in, 

radiologically contaminated areas.

 EPA continues to believe that federal procurement and 

appropriations requirements influence the ability of the federal 

government to retrofit/replace/retire an appliance within one year. As 

stated above, while the federal government is attempting to streamline 

many procurement practices, the types 

[[Page 40436]]

of appliances and their associated costs currently limits the ability 

of the federal government to comply with a one-year timeframe. In 

particular, securing funds to retrofit an appliance subject to 

radiological contamination may require a lengthy process. In most 

cases, the owners or operators would wait for notification that the 

funds have been allocated before requesting proposals. Therefore, EPA 

will provide additional time beyond the initial one year, to the extent 

necessary, where procurement or appropriations requirements interfere 

with the ability of a federal entity to retrofit/retire/replace an 

appliance within one year.

K. Mothballing

 EPA proposed suspending the time-relevant leak repair requirements 

promulgated under Sec. 82.156(i) for appliances that are temporarily or 

permanently mothballed. In the NPRM, EPA states that it may be possible 

for the owner or operator of the appliance to discontinue use 

temporarily, perhaps on a seasonal basis. For example, it may be 

reasonable to shut down or mothball a comfort-cooling appliance for a 

period of time.

 The NPRM further states that this type of system mothballing would 

not be the same as an industrial process shutdown undertaken to repair 

particular leaks found in industrial process refrigeration equipment or 

perform other maintenance activities. Also, this type of shutdown or 

mothballing would not be the same as being taken off-line due to a 

power outage or event. The NPRM defines system mothballing as an 

intentional shutting down of the refrigerant appliance undertaken for 

an extended period of time by the owners or operators of that 

facility--not for the purposes of servicing or repairing the 

appliance--where the refrigerant has been evacuated. The NPRM further 

states that if the appliance is temporarily mothballed, EPA believes it 

is appropriate to suspend the time-relevant repair and/or retrofit 

requirements while the appliance is effectively inoperative. For 

example, if a comfort-cooling appliance with over 50 pounds of 

refrigerant has a leak rate of more than 15 percent per year, the leak 

or leaks must be repaired or the appliance must be retrofitted within 

one year. However, if after discovery of the exceedance of the leak 

rate, the owner or operator voluntarily mothballs the appliance for a 

period of several months or years, EPA believes it would be appropriate 

to suspend the need to repair leaks or retrofit the appliance during 

the same time period. Therefore, if the appliance operated for five 

days after discovery of the exceedance of the leak rate, then shut down 

for 2 months, when the appliance returned to operating, the owner or 

operator will still have 25 days to repair the leaks. The applicable 

verification tests would need to be employed.

 EPA received several comments supporting the suspension of timerelevant 

repair or retrofit requirements if the owner or operator 

temporarily mothballs the affected appliance. However, several 

commenters suggested that the time-relevant requirements should also be 

suspended while repair or retrofit work is occurring. One commenter 

stated that refrigeration systems are designed to provide maximum 

cooling; however, if the weather cools or the processes needing 

refrigeration are not operating at full production, or if there are 

several refrigeration systems supporting a facility, it may be possible 

to mothball a leaky appliance. This commenter and several others 

recommend that EPA suspend the ``clock'' whether the appliance is 

mothballed for the purposes of repair or not. The commenters stated 

that the basis for their concern is that if the appliance or an 

isolated section of an appliance has been evacuated to at least 

atmospheric pressure, only a limited amount of refrigerant is likely to 

be released. The commenters further stated that the intent of the 

rulemaking is to reduce the emissions of ozone-depleting refrigerants. 

The commenters believe that while mothballed, there would essentially 

be no emission of ozone-depleting refrigerants. Another commenter 

stated that EPA should focus on the amount of time that an appliance 

actually operates at an excessive leak rate and not the amount of time 

that a repair takes. Another commenter stated that it may take some 

time to determine that the leak rate is above the threshold. After that 

determination is made, it may take time for a part to be ordered. The 

commenter is concerned that if the system mothballing definition 

excludes appliances shut down for the purposes of completing repairs, 

the owner or operator facing the above scenario would be forced into a 

retrofit/replacement mode. One commenter suggested that recordkeeping 

and reporting requirements could be used to monitor the appropriateness 

of using this provision.

 EPA understands the concerns raised by these commenters. The 

intention of Section 608 is to limit refrigerant emissions, not to 

determine how long it should take to repair an appliance.

 EPA intended to permit system mothballing because the risk of 

releases from evacuated appliances is minimal. EPA did not intend to 

preclude repair work from occurring while an appliance has been 

mothballed. Instead, EPA was attempting to distinguish between system 

mothballing and other types of shutdowns, for different purposes, 

particularly industrial process shutdowns. In most cases, EPA believes 

that system mothballing may constitute extensive shutdowns. In many 

cases, the appliance could be mothballed for a season.

 EPA received comments describing scenarios where mothballing 

appliances and simultaneously completing repairs would be a practical 

solution. Examples include manufacturing processes that produce 

material that have only a seasonal demand, where a spare or backup 

appliance can be brought on line, and where there is excess capacity in 

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another refrigerant appliance that can be used to replace the capacity 

lost by mothballing an appliance. Commenters believe that evacuating 

the appliance to at least atmospheric pressure, and allowing the repair 

activities to occur, will limit emissions. Commenters further recognize 

the need to complete verification tests regardless of the conditions 

under which the repair work was conducted.

 EPA agrees that completing repairs while the appliance is evacuated 

equates to almost no risk of emissions. Therefore, through this action, 

EPA is modifying the proposed definition of system mothballing. EPA 

will delete the language ``not for purposes of servicing or repairing 

the appliance'' from the definition of system mothballing. However, to 

ensure that for industrial process refrigeration equipment, 

verification tests still occur, EPA will include language stating that 

an initial verification test be completed prior to returning these 

appliances to normal operating conditions and that a follow-up 

verification test will be required within 30 days.

L. Grandfathering

 EPA received one comment regarding the treatment of industrial 

process refrigeration equipment that began retrofit or replacement 

activities prior to the promulgation of this rulemaking. A company that 

discovered a leak in early 1994 that exceeded 35 percent developed a 

retrofit plan under the existing requirements. It now has become 

apparent that the company will require additional time beyond the one 

year and if these regulations were already promulgated, the company 

most likely would have qualified for additional time. Since today's 

action was not already effective, and therefore 

[[Page 40437]]

no extensions could be applied for, the commenter is concerned with how 

this appliance will be treated. EPA believes that in this case good 

faith efforts were made by the owner or operator of industrial process 

refrigeration equipment to meet the existing requirements prior to the 

stay. In cases where the owners or operators have developed plans and 

made good faith efforts to retrofit or retire appliances prior to the 

promulgation of today's action, and where these efforts are not yet 

complete, the owners or operators must develop a plan and complete all 

retrofit or retirement actions by August 8, 1996. The owners or 

operators are permitted to provide for extensions beyond August 8, 

1996, in accordance with Sec. 82.156 (i)(7) and (i)(8).

M. Terminology

 EPA received comments asking the Agency to clarify, modify, and/or 

ensure consistency with EPA's use of certain terms, including but not 

limited to ``facility,'' ``system,'' and ``appliance.'' EPA has 

reviewed the regulatory text and the preamble to incorporate 

appropriate changes. EPA anticipates that these changes should lessen 

any confusion in distinguishing between a facility, a system, and an 

appliance. EPA also has considered all other comments concerning 

grammar and language and believes they have been appropriately 

addressed in the preamble and regulatory text.

 EPA received one comment suggesting that where the regulatory text 

states that a leak rate should be reduced to 35 or 15 percent, the 

language should be amended to state 35 or 15 percent and below in order 

to include all universe of allowable leak rates. EPA agreed with this 

commenter and has made the necessary changes.

 EPA received comments requesting additional cross-referencing in 

the regulatory text. One commenter suggested that particular crossreferences 

should be added, deleted, or modified to more accurately 

indicate the Agency's intent. EPA believes it has addressed all these 

concerns.

N. Regulatory Impact Analysis

 It has been determined by OMB and EPA that the proposed amendment 

to the final rule is not a ``significant regulatory action'' under the 

terms of Executive Order 12866 and is therefore not subject to OMB 

review under the Executive Order. EPA received one comment disagreeing 

with this determination. The commenter stated that though the rule 

provides for extensions for leak repair, the recordkeeping burdens make 

this option essentially useless. The commenter further states that if 

other leaks cannot be located within 180 days, the rule has a net 

effect of mandating retrofits. The commenter believes retrofitting one 

plant alone could exceed $10 million. That multiplied over an entire 

group of affected industries would deem the rule significant.

 EPA strongly disagrees with this commenter's view that this rule is 

significant. EPA did perform a Regulatory Impact Analysis (RIA) when 

the original regulations regarding section 608 were promulgated in May 

1993. This RIA is contained in Air Docket A-92-01. At that time, the 

costs associated with repairing and retrofitting appliances were 

considered. Today's action only lessens the impact of the original 

requirements by providing flexibility. The owners or operators of 

affected equipment have many options. One failed verification test does 

not immediately mean that retrofitting or replacing the appliance is 

the only option available as the only avenue. Furthermore, the 

provision permitting 180 days to decrease the overall leak rate of the 

industrial process refrigeration equipment was not contained in the 

original rulemaking. The owners or operators of a leaky appliance would 

have had to repair the leaks within 30 days or develop a retrofit or 

retirement plan. Any new recordkeeping or reporting requirements are 

necessary as a result of the more flexible approach. Most commenters 

agreed that these provisions were necessary. Moreover, as comments in 

the docket suggest, many of the data elements contained in the 

recordkeeping and reporting requirements were suggested by CMA and its 

members.

 EPA does not believe that this rulemaking substantially increases 

the burden on the regulated community. Moreover, EPA believes that is 

the impact of this rulemaking a more flexible less costly means for 

handling leaks.

O. Allowing Appliances To Be Pressurized To Slightly Above O PSIG

 EPA proposed to allow appliances to be pressurized up to 5 psig in 

order to change oil in industrial process refrigeration equipment. The 

NPRM (60 FR 4002) states that a small positive pressure is needed 

during oil changes to force the oil from its reservoir. Oil will not 

flow from a reservoir that is under vacuum. EPA stated that this 

approach will reduce emissions and thus will have an overall positive 

impact on the environment.

 EPA received comments regarding this issue. One commenter asked for 

EPA to reopen and extend the comment period. Since this provision is 

part of a settlement agreement with a court-ordered final signature 

date of July 31, 1995, EPA is unable to reopen the comment period at 

this time. Furthermore, EPA did provide a thirty-day comment period 

with the option of holding a public hearing if one had been requested, 

in accordance with the Administrative Procedures Act. Moreover, to the 

extent practicable, EPA has responded to all comments including those 

received after the close of the comment period.<SUP>3

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 \3\ This particular comment was received the evening of June 

15, 1995. The comment period closed February 21, 1995.

 Several commenters agreed with EPA's proposed approach, stating 

that permitting evacuation or pressurization to slightly above 0 psig 

would facilitate the removal of oil. One commenter stated that only a 

small amount of positive pressure is necessary because technicians 

would not let oil out at full system pressure since the oil would 

immediately turn into a large volume of froth.

 EPA also received comments disagreeing with the need to reduce 

pressure. One commenter stated that Sec. 82.156 and Sec. 82.158 should 

not apply to oil changes. The commenter stated that any unit that 

requires that the oil be changed is provided with proper valves for oil 

change. The only refrigerant that is vented is the refrigerant 

contained in the oil. The commenter believes that the oil will be 

heated using the system oil heaters to bring the oil up to the 

manufacturer's design temperature. The hot oil will contain the least 

amount of refrigerant possible for the system stand-by pressure. The 

commenter believes that any requirement to reduce the pressure of the 

system to 5 psig would add major costs to the preventive maintenance of 

the unit. A job that may take a few hours would become a two-day job in 

cases where the unit does not have a system receiver. A refrigerant 

recovery unit and tanks would have to be brought to and removed from 

the job site. The commenter believes that the rules as written allow 

for oil removal without changing the system pressure since no 

evacuation is necessary after the oil change and results in only a ``de 

minimis'' release of refrigerant. Another commenter stated that 

refrigerant entrained in oil is not subject to the regulations.

 EPA disagrees with these commenters' interpretations of the 

[[Page 40438]]

 regulations. Under the initial regulations promulgated under section 

608 and published May 14, 1993 (58 FR 28660), oil removal is considered 

a minor repair. Consistent with the requirements for all minor repairs 

the appliance must be brought to at least atmospheric pressure for oil 

removal.

 The settlement agreement between EPA and CMA was based on the need 

to provide greater flexibility to the regulated community. The 

inclusion of a proposed provision to allow a slight positive pressure 

was viewed as a relaxation of the current regulations. This implies 

that a significant part of the regulated community agreed with EPA's 

interpretation that under the May 14 rule, oil removal required 

evacuation to atmospheric pressure.

 Two commenters stated that EPA should not consider removing oil to 

be opening the appliance. One commenter stated that when the oil has 

been removed the valve is closed and the oil container is removed. The 

second commenter stated that the oil remaining in the sump is a barrier 

that will keep the refrigerant in the appliance. The impeller is a 

labyrinth seal with only .002-.003 inch clearance, and the valve 

through which the oil is drained is a small orifice. This commenter 

believes that if extreme precautionary measures are taken the appliance 

is not truly opened.

 EPA disagrees with these commenters. EPA believes that changing oil 

does constitute opening the appliance. Opening an appliance is defined 

as ``any service, maintenance, or repair on an appliance that would 

release class I or class II refrigerant from the appliance to the 

atmosphere unless the refrigerant were recovered previously from the 

appliance * * *'' (59 FR 55926). EPA believes that refrigerant would be 

released during an oil change, unless the refrigerant were recovered 

previously. One commenter recognized that such a risk exists by stating 

that there is a need for ``extreme precautionary measures * * * during 

oil changes'' and that only under those circumstances is the ``system 

not truly `opened' and there is little risk that refrigerant in the 

system will be vented to the atmosphere.'' EPA believes that the need 

to take ``extreme precautionary measures'' to prevent a release 

demonstrates that without such precautions a release is likely. 

Furthermore, EPA believes there is no way to assure that refrigerant is 

not released except to evacuate the appliance to 5 psig or below. 

Therefore, EPA continues to believe that removing oil constitutes 

opening the appliance.

 EPA is concerned not only with the bulk of the refrigerant charge, 

but also with the refrigerant entrained in the oil. EPA has stated in 

applicability determination #23 and in the preamble to the initial 

regulations (58 FR 28677) that after an appliance is reduced to 

atmospheric pressure, the refrigerant entrained in the oil is not 

subject to those regulations. EPA would like to clarify that where the 

refrigerant and oil have not been drawn to at least atmospheric 

pressure, section 608(c), the venting provision, would apply. 

Therefore, recovery of the refrigerant from that oil would still be 

required.

 During the settlement negotiations with CMA, CMA supplied 

information stating that the percentage of refrigerant entrained in oil 

for an appliance at 80 degrees fahrenheit could be 50 percent of the 

total volume of oil for HCFC-22. If the pressure is reduced to 5 psig 

the percentage of refrigerant is less than 5 percent for HCFC-22. EPA 

believes that this demonstrates that without a requirement to reduce 

the pressure or to recover that refrigerant in some other way, 

significant quantities of refrigerant will be released.

 One commenter suggested an approach that would recover the 

refrigerant in the oil through a less time-consuming method. The 

commenter suggested that instead of evacuating the refrigerant EPA 

should permit the oil to be drained into a secondary vessel that can be 

isolated from the chiller and evacuated to recover the refrigerant in 

the oil. EPA received another comment stating that this method would 

still be time-consuming and costly. After reviewing the comments, EPA 

believes that this method actually will be less time-consuming and 

costly than the current requirements. Those concerned with the time and 

cost involved with this procedure should consider whether their current 

practices are actually in violation of the regulations.

 EPA is concerned with preventing the release of the refrigerant 

through the opening of the appliance. Therefore, EPA believes that if 

the oil can be drained into a system receiver, where the system 

receiver can be isolated and evacuated to a pressure no greater than 5 

psig, the goal would be achieved. EPA believes this a reasonable 

alternative to the requirements currently in effect. Therefore, through 

this action, EPA will revise the regulations to permit appliances to be 

pressurized to slightly above 0 psig (but not to exceed 5 psig) during 

oil changes and/or to permit the oil to be drained into a system 

receiver where the technician will then recover the oil entrained in 

the refrigerant to 0 psig.

VI. Judicial Review

 Under Section 307(b)(1) of the Act, EPA finds that these 

regulations are of national applicability. Accordingly, judicial review 

of this action is available only by the filing of a petition for review 

in the United States Court of Appeals for the District of Columbia 

Circuit within sixty days of publication of this action in the Federal 

Register. Under Section 307(b)(2), the requirements of this rule may 

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not be challenged later in judicial proceedings brought to enforce 

those requirements.

VII. Administrative Requirements

A. Executive Order 12866

 Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 

Agency must determine whether this 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 lead to a rule that may:

 (1) Have an annual effect on the economy of $100 million or more, 

or adversely and materially affect 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 entitlement, 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 by OMB and EPA that this final action to 

amendment to the final rule is not a ``significant regulatory action'' 

under the terms of Executive Order 12866 and is therefore not subject 

to OMB review under the Executive Order.

B. Unfunded Mandates Act

 Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded 

Mandates Act'') (signed into law on March 22, 1995) requires that the 

Agency prepare a budgetary impact statement before promulgating a rule 

that includes a Federal mandate that may result in expenditure by 

State, local, and tribal governments, in aggregate, or by the private 

sector, of $100 million or more in any one year. Section 203 requires 

the Agency to establish a plan for obtaining input from and informing, 

educating, and advising any small governments that may be 

[[Page 40439]]

significantly or uniquely affected by the rule.

 Under section 205 of the Unfunded Mandates Act, the Agency must 

identify and consider a reasonable number of regulatory alternatives 

before promulgating a rule for which a budgetary impact statement must 

be prepared. The Agency must select from those alternatives the least 

costly, most cost-effective, or least burdensome alternative that 

achieves the objectives of the rule, unless the Agency explains why 

this alternative is not selected or the selection of this alternative 

is inconsistent with law.

 Because this final rule is estimated to result in the expenditure 

by State, local, and tribal governments or private sector of less than 

$100 million in any one year, the Agency has not prepared a budgetary 

impact statement or specifically addressed the selection of the least 

costly, most cost-effective, or least burdensome alternative. Because 

small governments will not be significantly or uniquely affected by 

this rule, the Agency is not required to develop a plan with regard to 

small governments. As discussed in this preamble, this rulemaking has 

the net effect of reducing the burden of part 82 subpart F of the 

Stratospheric Protection regulations on regulated entities, including 

State, local, and tribal governments or private sector entities by 

providing greater flexibility.

C. Paperwork Reduction Act

 The information collection requirements in this rule have been 

submitted to by the Office of Management and Budget (OMB) under the 

Paperwork Reduction Act, 44 U.S.C. 3501 et seq and will be assigned 

control number 2060-0256.

 The current collection of information has an estimated reporting 

and recordkeeping burden averaging 564,807 hours per respondent; 

however, this final action will decrease that burden by 108 hours. 

These estimates include time for reviewing instructions, searching 

existing data sources, gathering and maintaining the data needed, and 

completing and reviewing the collection of information.

 Send comments regarding the burden estimate or any other aspect of 

this collection of information, including suggestions for reducing this 

burden to Director, Regulatory Information Division; EPA; 401 M Street 

SW., (Mail Code 2136); Washington, DC 20460; and to the Office of 

Information and Regulatory Affairs, Office of Management and Budget, 

Washington, DC 20503, marked ``Attention: Desk Officer for EPA.''

D. Regulatory Flexibility Act

 The Regulatory Flexibility Act, 5 U.S.C. 601-602, requires that 

Federal agencies examine the impacts of their regulations on small 

entities. Under 5 U.S.C. 604(a), whenever an agency is required to 

publish a general notice of proposed rulemaking, it must prepare and 

make available for public comment an initial regulatory flexibility 

analysis (RFA). Such an analysis is not required if the head of an 

agency certifies that a rule will not have a significant economic 

impact on a substantial number of small entities, pursuant to 5 U.S.C. 

605(b).

 EPA believes that any impact that this amendment will have on the 

regulated community will serve only to provide relief from otherwise 

applicable regulations, and will therefore limit the negative economic 

impact associated with the regulations previously promulgated under 

section 608. An examination of the impacts on small entities was 

discussed in the final rule (58 FR 28660). That final rule assessed the 

impact the rule may have on small entities. A separate regulatory 

impact analysis was developed. That impact analysis accompanied the 

final rule and is contained in Docket A-92-01.

 I certify that this amendment to the refrigerant recycling rule 

will not have any additional negative economic impacts on any small 

entities.

 Dated: July 25, 1995.

Carol M. Browner,

Administrator.

List of Subjects in 40 CFR Part 82

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 Environmental protection, Chemical Manufacturers Association, 

Industrial process refrigeration, Leak repair, Mothballing, 

Radiological contamination, Reporting and recordkeeping requirements, 

Retrofit, Verification test.

 Part 82, chapter I, title 40, of the Code of Federal Regulations, 

is amended to read as follows:

PART 82--PROTECTION OF STRATOSPHERIC OZONE

1. The authority citation for part 82 continues to read as follows:

 Authority: 42 U.S.C. 7414, 7601, 7671-7671q.

 2. Section 82.152 is amended by removing the paragraph designations 

and placing the definitions in alphabetical order; by revising the 

definition for ``Industrial process refrigeration''; and by adding new 

definitions in alphabetical order to read as follows:

Sec. 82.152 Definitions.

n * * * *

 Critical component means, for the purposes of Sec. 82.156(i), a 

component without which industrial process refrigeration equipment 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.

 Custom-built means, for the purposes of Sec. 82.156(i), that the 

equipment or any of its critical components cannot be purchased and/or 

installed without being uniquely designed, fabricated and/or assembled 

to satisfy a specific set of industrial process conditions.

 Follow-up verification test means, for the purposes of 

Sec. 82.156(i), those tests that involve checking the repairs within 30 

days of the appliance's returning to normal operating characteristics 

and conditions. Follow-up verification tests for appliances 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 where 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 refrigerant 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 any required changes in pressure, temperature or 

other conditions to return the appliance to normal operating 

characteristics and conditions.

 Full charge means, for the purposes of Sec. 82.156(i), 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 

[[Page 40440]]

 (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 mid-point of the range will serve as the full 

charge, and where records are maintained in accordance with 

Sec. 82.166(q).

n * * * *

 Industrial process refrigeration means, for the purposes of 

Sec. 82.156(i), complex customized appliances used in the chemical, 

pharmaceutical, petrochemical and manufacturing industries. These 

appliances are directly linked to the industrial process. This sector 

also includes industrial ice machines, appliances used directly in the 

generation of electricity, and ice rinks. Where one appliance is used 

for both industrial process refrigeration and other applications, it 

will be considered industrial process refrigeration equipment if 50 

percent or more of its operating capacity is used for industrial 

process refrigeration.

 Industrial process shutdown means, for the purposes of 

Sec. 82.156(i), that an industrial process or facility temporarily 

ceases to operate or manufacture whatever is being produced at that 

facility.

 Initial verification test means, for the purposes of 

Sec. 82.156(i), those leak tests that are conducted as soon as 

practicable after the repair is completed. An initial verification 

test, with regard to the leak repairs that require the evacuation of 

the appliance or portion of the appliance, means a test conducted prior 

to the replacement of the full refrigerant charge and before the 

appliance or portion of the appliance has reached operation at normal 

operating characteristics and conditions of temperature and pressure. 

An initial verification test with regard to repairs conducted without 

the evacuation of the refrigerant charge means a test conducted as soon 

as practicable after the conclusion of the repair work.

n * * * *

 Normal operating characteristics or conditions means, for the 

purposes of Sec. 82.156(i), temperatures, pressures, fluid flows, 

speeds and other characteristics that would normally be expected for a 

given process load and ambient condition during operation. Normal 

operating characteristics and conditions are marked by the absence of 

atypical conditions affecting the operation of the refrigeration 

appliance.

n * * * *

 Suitable replacement refrigerant means, for the purposes of 

Sec. 82.156(i)(7)(i), a refrigerant that is acceptable under section 

612(c) of the Clean Air Act Amendments of 1990 and all regulations 

promulgated under that section, compatible with other materials with 

which it may come into contact, and able to achieve the temperatures 

required for the affected industrial process in a technically feasible 

manner.

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n * * * *

 System mothballing means the intentional shutting down of a 

refrigeration appliance undertaken for an extended period of time by 

the owners or operators of that facility, where the refrigerant has 

been evacuated from the appliance or the affected isolated section of 

the appliance, at least to atmospheric pressure.

n * * * *

n Section 82.156 is amended by revising paragraphs (a)(2)(i)(A) 

and (a)(2)(i)(B), adding a new paragraph (a)(2)(i)(C), and revising 

paragraph (i) to read as follows:

Sec. 82.156 Required practices.

n * * * *

 (a) * * *

 (2)(i) * * *

 (A) Be evacuated to a pressure no higher than 0 psig before it is 

opened if it is a high- or very high-pressure appliance;

 (B) Be pressurized to 0 psig before it is opened if it is a lowpressure 

appliance. Persons pressurizing low-pressure appliances that 

use refrigerants with boiling points at or below 85 degrees Fahrenheit 

at 29.9 inches of mercury (standard atmospheric pressure), (e.g., CFC11 and HCFC-123), must not use methods such as nitrogen, that require 

subsequent purging. Persons pressurizing low-pressure appliances that 

use refrigerants with boiling points above 85 degrees Fahrenheit at 

29.9 inches of mercury, e.g., CFC-113, must use heat to raise the 

internal pressure of the appliance as much as possible, but may use 

nitrogen to raise the internal pressure of the appliance from the level 

attainable through use of heat to atmospheric pressure; or

 (C) For the purposes of oil changes, be evacuated or pressurized to 

a pressure no higher than 5 psig, before it is opened; or drain the oil 

into a system receiver to be evacuated or pressurized to a pressure no 

higher than 5 psig.

n * * * *

 (i)(1) Owners or operators of commercial refrigeration equipment 

normally containing more than 50 pounds of refrigerant 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 35 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)(1)(i), (i)(1)(ii), and (i)(1)(iii) of this section. 

Repairs must bring the annual leak rate to below 35 percent.

 (i) If the owners or operators of the federally-owned commercial 

refrigerant appliances determine that the leaks cannot be repaired in 

accordance with paragraph (i)(9) of this section and that an extension 

in accordance with the requirements discussed in this paragraph 

(i)(1)(i) of this section apply, they must document all repair efforts, 

and notify EPA of their inability to comply within the 30-day repair 

requirement, and the reason for the inability must be submitted to EPA 

in accordance with Sec. 82.166(n). Such notification must be made 

within 30 days of discovering the leaks. EPA will determine if the 

extension requested in accordance with the requirements discussed in 

paragraph (i)(1)(i) of this section is justified. If the extension is 

not justified, EPA will notify the owner/operator within 30 days of 

receipt of the notification.

 (ii) Owners or operators of federally-owned commercial 

refrigeration equipment may have more than 30 days to repair leaks if 

the refrigeration appliance is located in an area subject to 

radiological contamination or where the shutting down of the appliance 

will directly lead to radiological contamination. Only the additional 

time needed to conduct and complete repairs in a safe working 

environment will be permitted.

 (iii) Owners or operators of federally-owned commercial 

refrigeration equipment requesting or who are granted time extensions 

under this paragraph must comply with paragraphs (i)(3) and (i)(4) of 

this section.

 (2) The owners or operators of industrial process refrigeration 

equipment normally containing more than 50 pounds of refrigerant must 

have leaks repaired if the appliance is leaking at a rate such that the 

loss of refrigerant will exceed 35 percent of the total charge during a 

12-month period in accordance with paragraph (i)(9) of this section, 

except as described in paragraphs (i)(6), (i)(7) and (i)(10) of this 

section, and paragraphs (i)(2)(i) and (i)(2)(ii) of this section. 

Repairs must bring annual leak rates to below 35 percent during a 12-

month period. If the owners or operators of the industrial process 

refrigeration equipment determine that the leak rate cannot be brought 

to below 35 percent during a 12-month period within 30 days (or 120 

[[Page 40441]]

days, where an industrial process shutdown in accordance with paragraph 

(i)(2)(ii) of this section is required,) and in accordance with 

paragraph (i)(9) of this section, and that an extension in accordance 

with the requirements discussed in this paragraph apply, the owners or 

operators of the appliance must document all repair efforts, and notify 

EPA of the reason for the inability in accordance with Sec. 82.166(n) 

within 30 days of making this determination. Owners or operators who 

obtain an extension pursuant to this section or elect to utilize the 

additional time provided in paragraph (i)(2)(i) of this section, must 

conduct all necessary leak repairs, if any, that do not require any 

additional time beyond the initial 30 or 120 days.

 (i) The owners or operators of industrial process refrigeration 

equipment are permitted more than 30 days (or 120 days where an 

industrial process shutdown in accordance with paragraph (i)(2)(ii) of 

this section is required) to repair leaks, if the necessary parts are 

unavailable or if requirements of other applicable federal, state, or 

local regulations make a repair within 30 or 120 days impossible. Only 

the additional time needed to receive delivery of the necessary parts 

or to comply with the pertinent regulations will be permitted.

 (ii) Owners or operators of industrial process refrigeration 

equipment will have a 120-day repair period, rather than a 30-day 

repair period, to repair leaks in instances where an industrial process 

shutdown is needed to repair a leak or leaks from industrial process 

refrigeration equipment.

 (3) The owners or operators of industrial process refrigeration 

equipment who are granted additional time under paragraphs (i)(1), 

(i)(2), and (i)(5) of this section must ensure that the repair efforts 

performed be those that sound professional judgment indicate will be 

sufficient to bring the leak rates below the applicable allowable 

annual rate. When an industrial process shutdown has occurred or when 

repairs have been made while an appliance is mothballed, an initial 

verification test shall be conducted at the conclusion of the repairs 

and a follow-up verification test shall be conducted within 30 days of 

completing the repairs or within 30 days of bringing the appliance back 

on-line, if taken off-line, but no sooner than when the system has 

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achieved normal operating characteristics and conditions. When repairs 

have been conducted without an industrial process shutdown or system 

mothballing, an initial verification test shall be conducted at the 

conclusion of the repair efforts and a follow-up verification test 

shall be conducted within 30 days after the initial follow-up 

verification test. In all cases, the follow-up 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 if practicable, and 

within 30 days of completing the repair efforts.

 (i) If industrial process refrigeration equipment is taken off 

line, it can not be brought back on-line until an initial verification 

test indicates that the repairs undertaken in accordance with 

paragraphs (i)(1) (i), (ii), and (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 or where the owners or 

operators of the industrial process refrigeration equipment will 

retrofit/replace/retire the industrial process refrigeration equipment 

in accordance with paragraph (i)(6) of this section.

 (ii) If the follow-up verification test indicates that the repairs 

to industrial process refrigeration equipment have not been 

successfully completed, the owner must retrofit or replace the 

equipment in accordance with paragraph (i)(6) of this section within 

one year after the failure to verify that the repairs had been 

successfully completed or such longer time period as may apply in 

accordance with paragraphs (i)(7) (i), (ii) and (iii) or (i)(8)(i) and 

(ii) of this section. The owners and operators of industrial process 

refrigeration equipment are relieved of this requirement if the 

conditions of paragraphs (i)(3)(iv) and/or (i)(3)(v) of this section 

are met.

 (iii) The owner or operator of industrial process refrigeration 

equipment that fails a follow-up verification test must notify EPA 

within 30 days of the failed follow-up verification test in accordance 

with Sec. 82.166(n).

 (iv) The owner or operator is relieved of the obligation to 

retrofit or replace the industrial process refrigeration equipment as 

discussed in paragraph (i)(6) of this section 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 

follow-up verification test. The second repair efforts are subject to 

the same verification requirements of paragraphs (i)(3), (i)(3) (i) and 

(ii) of this section. The owner or operator is required to notify EPA 

within 30 days of the successful follow-up verification test in 

accordance with Sec. 82.166(n) and the owner or operator is no longer 

subject to the obligation to retrofit or replace the appliance that 

arose as a consequence of the initial failure to verify that the leak 

repair efforts were successful.

 (v) The owner or operator of industrial process refrigeration 

equipment is relieved of the obligation to retrofit or replace the 

equipment in accordance with paragraph (i)(6) of this section if within 

180 days of the initial failed follow-up verification test, the owner 

or operator establishes that the appliance's annual leak rate does not 

exceed the applicable allowable annual leak rate, in accordance with 

paragraph (i)(4) of this section. If the appliance's owner or operator 

establishes that the appliance's annual leak rate does not exceed the 

applicable allowable annual leak rate, the owner or operator is 

required to notify EPA within 30 days of that determination in 

accordance with Sec. 82.166(n) and the owner or operator would no 

longer be subject to the obligation to retrofit or replace the 

equipment that arose as a consequence of the initial failure to verify 

that the leak repair efforts were successful.

 (4) In the case of a failed follow-up verification test subject to 

paragraph (i)(3)(v) of this section, the determination of whether 

industrial process refrigeration equipment has an annual leak rate that 

exceeds the applicable allowable annual leak rate will be made in 

accordance with parameters identified by the owner or operator in its 

notice to EPA regarding the failure of the initial follow-up 

verification test, if those parameters are acceptable to EPA; otherwise 

by parameters selected by EPA. The determination must be based on the 

full charge for the affected industrial process refrigeration 

equipment. The leak rate determination parameters in the owner's or 

operator's notice will be considered acceptable unless EPA notifies the 

owners or operators within 30 days of receipt of the notice. Where EPA 

does not accept the parameters identified by the owner or operator in 

its notice, EPA will not provide additional time beyond the additional 

time permitted in paragraph (i)(3)(v) of this section unless 

specifically stated in the parameters selected by EPA.

 (5) Owners or operators of 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 

[[Page 40442]]

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.

 (i) If the owners or operators of federally-owned comfort-cooling 

appliances determine that the leaks cannot be repaired in accordance 

with paragraph (i)(9) of this section and that an extension in 

accordance with the requirements discussed in paragraph (i)(5) of this 

section apply, they must document all repair efforts, and notify EPA of 

their inability to comply within the 30-day repair requirement, and the 

reason for the inability must be submitted to EPA in accordance with 

Sec. 82.166(n). Such notification must be made within 30 days of 

discovering that leak repair efforts cannot be completed within 30 

days.

 (ii) Owners or operators of federally-owned comfort-cooling 

appliances may have more than 30 days to repair leaks where the 

refrigeration appliance is located in an area subject to radiological 

contamination or where the shutting down of the appliance will directly 

lead to radiological contamination. Only the additional time needed to 

conduct and complete work in a safe environment will be permitted.

 (iii) Owners or operators of federally-owned comfort-cooling 

appliances requesting, or who are granted, time extensions under this 

paragraph must comply with paragraphs (i)(3) and (i)(4) of this 

section.

 (6) Owners or operators are not required to repair the leaks 

defined in paragraphs (i)(1), (i)(2) and (i)(5) of this section 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 paragraph (i)(3)(ii) of this section, they develop a 

one-year retrofit or retirement plan for the leaking appliance. This 

plan (or a legible copy) must be kept at the site of the appliance. The 

original must be 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, except as described in paragraphs (i)(7) 

and (i)(8) of this section. Owners are temporarily relieved of this 

obligation if the appliance has undergone system mothballing as defined 

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in Sec. 82.152.

 (i) If the owner or operator has made good faith efforts to repair 

leaks in accordance with paragraphs (i)(1), (i)(2), or (i)(5) of this 

section, and has determined to proceed with a plan 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 determination to retrofit or retire the 

appliance, to be completed within one year 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.

 (ii) In all cases, subject to paragraph (i)(6)(i) of this section, 

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. All reports required under Sec. 82.166(o) shall 

be due 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.

 (iii) In cases where the owner or operator of industrial process 

refrigeration equipment has made good faith efforts to retrofit or 

retire industrial process refrigeration equipment prior to August 8, 

1995, and where these efforts are not complete, the owner or operator 

must develop a retrofit or retirement plan that will complete the 

retrofit or retirement of the affected appliance by August 8, 1996. 

This plan (or a legible copy) must be kept at the site of the 

appliance. The original must be made available for EPA inspection upon 

request. Where the conditions of paragraphs (i)(7) and (i)(8) of this 

section apply, and where the length of time necessary to complete the 

work is beyond August 8, 1996, all records must be submitted to EPA in 

accordance with Sec. 82.166(o), as well as maintained on-site.

 (7) The owners or operators of industrial process refrigeration 

equipment will be allowed additional time to complete the retrofit or 

retirement of industrial process refrigeration equipment if the 

conditions described in paragraphs (i)(7)(i) or (i)(7)(ii) of this 

section are met. The owners or operators of industrial process 

refrigeration equipment will be allowed additional time beyond the 

additional time provided in paragraph (i)(7)(ii) of this section if the 

conditions described in paragraph (i)(7)(iii) of this section are met.

 (i) Additional time, to the extent reasonably necessary will be 

allowed for retrofitting or retiring industrial process refrigeration 

equipment 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. If these circumstances apply, the owner or 

operator of the facility 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 Sec. 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.

 (ii) An additional one-year period beyond the initial one-year 

retrofit period is allowed for industrial process refrigeration 

equipment where the following criteria are met:

 (A) The new or the retrofitted industrial process refrigerant 

equipment 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 Sec. 82.166(o); and

 (D) The owner or operator maintains records that are adequate to 

allow a determination that the criteria are met.

 (iii) The owners or operators of industrial process refrigeration 

equipment may request additional time to complete retrofitting or 

retiring industrial process refrigeration equipment beyond the 

additional one-year period if needed and where the initial additional 

one year was granted in accordance with paragraph (i)(7)(ii) of this 

section. 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 Sec. 82.166(o) within 30 days of 

receipt, it shall be deemed approved.

 (8) Owners or operators of federally-owned commercial or comfortcooling 

appliances will be allowed an additional year to complete the 

retrofit or retirement of the appliances if the conditions described in 

paragraph (i)(8)(i) of this section are met, and will be allowed one 

year beyond the 

[[Page 40443]]

additional year if the conditions in paragraph (i)(8)(ii) of this 

section are met.

 (i) Up to one additional one-year period beyond the initial oneyear 

retrofit period is allowed for such equipment 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, 

describe the appliance involved, explain why more than one year is 

needed, and demonstrate that the first criterion is met in accordance 

with Sec. 82.166(o); and

 (C) The operator maintains records adequate to allow a 

determination that the criteria are met.

 (ii) The owners or operators of federally-owned 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 (i)(8)(i) of this 

section. 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 Sec. 82.166(o). Unless 

EPA objects to this request submitted in accordance with Sec. 82.166(o) 

within 30 days of receipt, it shall be deemed approved.

 (9) Owners or operators must repair leaks pursuant to paragraphs 

(i)(1), (i)(2) and (i)(5) of this section within 30 days after 

discovery, or within 30 days after when the leaks should have been 

discovered if the owners intentionally shielded themselves from 

information which would have revealed a leak, unless granted additional 

time pursuant to Sec. 82.156(i).

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 (10) The amount of time for owners and operators to complete 

repairs, retrofit plans or retrofits/replacements/ retirements under 

paragraphs (i)(1), (i)(2), (i)(5), (i)(6), (i)(7), (i)(8), and (i)(9) 

of this section is temporarily suspended at the time an appliance is 

mothballed as defined in Sec. 82.152. The time for owners and operators 

to complete repairs, retrofit plans, or retrofits/replacements will 

resume on the day the appliance is brought back on-line and is no 

longer considered mothballed. All initial and follow-up verification 

tests must be performed in accordance with paragraphs (i)(3), 

(i)(3)(i), and (i)(3)(ii) of this section.

 (11) 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 

destroying purged refrigerants must maintain information as set forth 

in Sec. 82.166(p)(1) and submit to EPA, within 60 days after the first 

time such exclusion is used by that facility, information set forth in 

Sec. 82.166(p)(2).

n * * * *

n Sec. 82.166 is amended by adding paragraphs (n), (o), (p), and 

(q) to read as follows:

Sec. 82.166 Reporting and recordkeeping requirements.

n * * * *

 (n) The owners or operators of appliances must maintain on-site and 

report to EPA at the address listed in Sec. 82.160 the following 

information, where such reporting and recordkeeping is required and 

within the timelines specified under Sec. 82.156 (i)(1), (i)(2), (i)(3) 

and (i)(5). This information 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 and the date that work was 

completed.

 (1) The reasons why more than 30 days are needed to complete the 

work and an estimate of when repair work will be completed must be 

submitted with the initial information submitted with the information 

listed in paragraph (n) of this section. 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.

 (2) If the owners or operators intend to establish that the 

appliance's annual leak rate does not exceed the applicable allowable 

annual leak rate in accordance with Sec. 82.156(i)(3)(v), the owner or 

operator is required to 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 with the information listed in 

paragraph (n) of this section. Identification of the facility and date 

the original information regarding additional time beyond the initial 

30 days was filed, and notification of the determination that the leak 

rate no longer exceeds the allowable annual leak rate must be included 

within 30 days of making such determination.

 (3) 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 must be maintained and submitted to EPA within 30 

days after conducting each test where recordkeeping and reporting is 

required within the timelines specified under Sec. 82.156 (i)(1), 

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

 (o) The owners or operators of appliances must maintain on-site and 

report to EPA at the address specified in Sec. 82.160 the following 

information where such reporting and recordkeeping is required and in 

the timelines specified in Sec. 82.156 (i)(7) and (i)(8), in accordance 

with Sec. 82.156 (i)(7) and (i)(8). This information must be relevant 

to the affected appliance and must include:

 (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 work was completed;

 (7) A plan to complete the retrofit or replacement of the system;

 (8) The reasons why more than one year is necessary to retrofit to 

replace the system;

 (9) The date of notification to EPA; and

 (10) An estimate of when retrofit or replacement work will be 

completed.

 (i) 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 occurring.

 (ii) If the estimated date of completion changes from the original 

estimate and results in moving the date of completion forward, the date 

of notification to EPA regarding this change and the estimate of when 

the work will be completed must be maintained and submitted.

 (p) (1) 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 

[[Page 40444]]

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.

 (2) Owners or operators who wish to exclude purged refrigerants 

that are destroyed from annual leak rate calculations must maintain onsite 

and make available to EPA upon request the following information 

after the first time the exclusion is utilized by the facility:

 (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 

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

EPA: Federal Register: Protection of Stratospheric Ozone: Supplemental Rule to Amend Leak Repair Provisions Under Section 608 of the Clean Air Act Page 25 of 26

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 (v) A description of the control device, and its destruction 

efficiency.

This information must also be included, where applicable, in any 

reporting requirements required for compliance with the leak repair and 

retrofit requirements for industrial process refrigeration equipment, 

as set forth in paragraphs (n) and (o) of this section.

 (q) Owners or operators choosing to determine the full charge as 

defined in Sec. 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.

n * * * *

[FR Doc. 95-18999 Filed 8-7-95; 8:45 am]

BILLING CODE 6560-50-P

EPA Home | Privacy and Security Notice | Contact Us

Last updated on Monday, August 1st, 2005

URL: http://www.epa.gov/docs/fedrgstr/EPA-AIR/1995/August/Day-08/pr-903.txt.html

EPA: Federal Register: Protection of Stratospheric Ozone: Supplemental Rule to Amend Leak Repair Provisions Under Section 608 of the Clean Air Act Page 26 of 26

http://www.epa.gov/docs/fedrgstr/EPA-AIR/1995/August/Day-08/pr-903.txt.html 10/14/2005