Regulatory Developments, Special Topics in Environmental Management

EPA Wants to End Substitute Refrigerants Requirements

In a deregulatory action, the EPA is proposing to amend an Obama-era rule that extended certain regulations promulgated under Clean Air Act (CAA) Section 608, which apply to Class I and II refrigerants that are ozone-depleting substances (ODSs), to non-ODSs used as substitute for ODSs.
In its proposal, the EPA says it has revisited the legal interpretation it used to justify the 2016 requirements and determined that the justification does not hold up to scrutiny. The proposal results in part from an industry petition to the EPA, which argued that extending the Section 608 regulations “to include chemicals that have a high global warming potential, but no or limited impact on stratospheric ozone, is inconsistent with the intent of Section 608 of the CAA.” In the current proposal, the EPA states that it agrees with that interpretation.

50-lb Threshold

Section 608 prohibits the knowing release of ozone-depleting and substitute refrigerants during the course of maintaining, servicing, repairing, or disposing of appliances or industrial process refrigeration. Under rules issued in the early 1990s, persons maintaining, servicing, repairing, or disposing of air-conditioning and refrigeration equipment containing more than 50 pounds (lb) of refrigerant were required to observe certain service practices that reduce emissions of ozone-depleting refrigerants. Requirements included restricting the servicing of appliances and the sale of refrigerant to certified technicians; specifying the proper evacuation levels before opening an appliance; requiring the use of certified refrigerant recovery and/or recycling equipment; requiring the maintenance and repair of appliances that meet size and leak rate thresholds; and requiring that refrigerant be removed from appliances before disposal.


In the 2016 rule, the EPA both updated the preexisting requirements and extended them to non-ODS substitute refrigerants, such as hydrofluorocarbons. The updates included strengthened leak repair requirements, recordkeeping requirements for the disposal of appliances containing more than 5 and less than 50 lb of refrigerant, and revisions to the technician certification program.

While substitute refrigerants do not deplete the earth’s protective ozone layer, some are powerful greenhouse gases (GHGs). In the 2016 rule, the EPA estimated that extension of the management requirements to substitute refrigerants would prevent annual emissions of GHGs equivalent to 7.3 million metric tons of carbon dioxide.

The Agency noted that Section 608 is ambiguous regarding the authority of the EPA administrator to apply regulations equally to both ODSs and non-ODSs. Nonetheless, the Agency asserted that under the Chevron deference doctrine, the EPA has authority to interpret ambiguity in a reasonable fashion.

No Ambiguity in Section 608

In its petition to the Agency, the Air Permitting Forum (APF) disagreed, stating:

Contrary to EPA’s suggestion in the preamble to the Final Rule, there is no ambiguity in the statute regarding EPA’s authority to create a comprehensive regulatory program akin to that applicable to Class I and II substances for non-exempt substitutes. There is no such authority. In CAA Section 608(a), Congress granted EPA explicit and narrow authority to create a regulatory program for Class I and Class II substances. In Section 608(c), Congress established intentional venting prohibitions immediately for Class I and II substances, with subsequent applicability to substitutes. These provisions were enacted simultaneously, indicating that Congress was fully aware and capable of granting EPA authority to regulate substitutes under CAA Section 608(a). It chose not to do so and there is nothing ambiguous about that decision.”

In its proposal, the EPA indicates its agreement with the APF.

“EPA believes that its statutory authority under section 608, taking that authority as a whole, does not extend as far with respect to substitutes as it does with respect to ODS, and specifically believes that section 608 is ambiguous with respect to the extent to which, if at all, Congress authorized EPA to issue refrigerant management regulations for substitutes,” the Agency states.

Affected Leak Requirements

Accordingly, under the proposal, appliances with 50 lb or more of substitute refrigerants would not be subject to requirements to conduct leak rate calculations when refrigerant is added to an appliance, repair an appliance that leaks above a threshold leak rate, conduct verification tests on repairs, conduct periodic leak inspections on appliances that exceed the threshold leak rate, report to the EPA on chronically leaking appliances, retrofit or retire appliances that are not repaired, and maintain related records.

Furthermore, the EPA is requesting comments on whether, in connection with the proposed changes to the legal interpretation, the 2016 rule’s extension of the refrigerant management requirements to substitute refrigerants should be rescinded in full.

The Section 608 proposal was published in the October 1, 2018, Federal Register (FR).