Following a second look at its authority under the Clean Air Act (CAA), the EPA has issued a final rule rescinding the leak-repair requirements of a 2016 rule the Obama EPA issued for refrigerants used to replace Class I or II ozone-depleting substances (ODSs).
In the 2016 action, the EPA interpreted its authority under CAA Section 608 to allow the Agency to extend all aspects of its refrigerant management regulations to nonexempt substitute refrigerants, including those regulations that had previously only applied to Class 1 and 2 ODS refrigerants. The Agency’s regulations at 40 CFR 82.152 define a substitute as “any chemical or product, whether existing or new, that is used as a refrigerant to replace a Class I or II ozone-depleting substance.” Substitute refrigerants include hydrofluorocarbons (HFCs), a non-ODS but a powerful greenhouse gas (GHG).
In addition to including nonexempt substitute refrigerants in the federal Refrigerant Management Program, the 2016 rule lowered the leak rate thresholds that trigger the duty to repair refrigeration and air-conditioning equipment containing 50 pounds (lb) or more of refrigerant; required quarterly/annual leak inspections or continuous monitoring devices for refrigeration and air-conditioning equipment that have exceeded the threshold leak rate; required owners/operators to submit reports to the EPA if systems containing 50 lb or more of refrigerant leak 125 percent or more of their full charge in 1 calendar year; extended the sales restriction to HFCs and other nonexempt substitutes, with the exception of cans containing 2 lb or less of nonexempt substitutes; and required technicians to keep a record of refrigerant recovered during system disposal from systems with a charge size from 5 to 50 lb.
Ambiguity Reinterpreted
In 2016, the EPA noted that Section 608 is ambiguous regarding the authority of the Agency to apply regulations equally to ODSs and non-ODSs. Nonetheless, the EPA asserted that under the Chevron deference doctrine, it has the authority to interpret ambiguity in a reasonable fashion. The EPA estimated that the 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 EPA now states that it continues to believe that Section 608 is ambiguous with regard to the Agency’s authority to establish refrigerant management regulations for nonexempt substitute refrigerants. However, in reviewing the language in Section 608, the EPA notes that in certain parts of Section 608, Congress does mention non-ODS substitutes. For example, substitutes are included in Section 608(c), which prohibits the knowing venting, release, or disposal of ODS refrigerants and their substitutes in the course of maintaining, servicing, repairing, or disposing of appliances or industrial process refrigeration (IPR). But there are no references to substitutes in Sections 608(a)(1) and 608(a)(2); these are the sections that require the EPA to promulgate regulations establishing standards and requirements for the use and disposal of Class I and II substances, respectively, during the service, repair, or disposal of air-conditioning and refrigeration equipment.
“The fact that Congress specifically included the term ‘substitutes’ in section 608(c) but not in sections 608(a)(1) or (2), contrasted with the express references to ODS (Class I and Class II substances) in both subsections, suggests that the EPA’s authority to address substitutes under section 608 is more limited than its authority to address ODS,” states the Agency. “If Congress had intended to convey authority to the EPA to promulgate the same, full set of refrigerant management requirements for substitutes as for ODS, it is reasonable to expect that Congress would have expressly included substitutes in sections 608(a)(1) or (2), as it did for section 608(c)—but it did not.”
Provisions Retained
Apart from withdrawing the leak repair and detection requirements for non-ODS substitutes, the EPA is retaining other provisions prohibiting and related to knowing releases of these refrigerants in the course of specific activities. Specifically:
- Anyone purchasing refrigerant for use in a stationary appliance or handling refrigerants (such as air-conditioning and refrigeration service technicians) must be Section 608-certified.
- Anyone removing refrigerant from a refrigeration or air-conditioning appliance must evacuate refrigerant to a set level using certified refrigerant recovery equipment before servicing or disposing of the appliance.
- The final disposer (such as scrap recyclers or landfills) of small appliances, like refrigerators and window air conditioners, must ensure and document that refrigerant is recovered.
- All used refrigerant must be reclaimed to industry purity standards before it can be sold to another appliance owner.
The revised rule is effective on April 10, 2020.