By Chuck White, Vice President of Regulatory Affairs
The U.S. Environmental Protection Agency (EPA) is taking comments on a proposed rule that would rescind changes implemented by a 2016 Rulemaking that updated refrigerant management requirements. These are commonly known as Section 608 requirements and include technician certification. Much has been said recently about the intent or the results of these changes, some correctly interpreting the document and some not. PHCC is interested in the contractor’s perspective on this issue, please email firstname.lastname@example.org with any questions or comments. Some brief comparison can be seen in the table below.
|2016 Rule||Proposed Rule|
|Section 608 (a) applies to Ozone Depleting Substances (ODS) and non-exempt substances.||Section 608 (a) applies to ODS only.|
|Refrigerant management requirements apply to Ozone Depleting Substances (ODS refrigerants) & non-exempt substitute refrigerants such as HFCs and HFOs.||Refrigerant management requirements apply to Ozone Depleting Substances (ODS refrigerants).|
|Since 1995, Section 608(c) has contained what is commonly called the “venting prohibition.” of any ODS & non-exempt substitute refrigerants. (EPA is not proposing to revisit it at this time).||“Venting prohibition” is maintained for ODS & non-exempt substitute refrigerants.|
|Technician certification is required for refrigerant sales for ODS and non-exempt substitute refrigerants.||Elements of the 608 program such as the refrigerant sales restriction, technician certification, reclamation standards, and evacuation standards would continue to apply to non-exempt substitute refrigerants.|
There is much history and detail involved in this rulemaking. The U.S. Environmental Protection Agency (EPA) established rules for the safe handling of refrigerants in May of 1993. Since that time, it is safe to say, the world of refrigerants has changed dramatically. In November 2016, EPA published a rule updating and extending existing refrigerant management requirements that previously applied only to Ozone Depleting Substances (ODS refrigerants) to non-exempt substitute refrigerants such as HFCs and HFOs. This included extending the “appliance maintenance and leak repair” provisions to appliances that contain 50 or more pounds of non-exempt substitute refrigerant which require:
- Conducting leak rate calculations when refrigerant is added to an appliance
- Repairing an appliance that leaks above the threshold leak rate
- Conducting verification tests on repairs
- Conducting periodic leak inspections on appliances that have exceeded the leak threshold
- Report to EPA on chronically leaking appliances
- Retrofit or retire appliances that are not repaired
- Maintain related documentation to verify compliance
- Comply with these revised provisions beginning January 1, 2019.
The 2016 Rule which was effective January 1, 2017, started a series of legal questions both challenging and supporting EPA in the rulemaking. Two industry coalitions have challenged the statutory authority of EPA while another industry coalition is participating as intervenor-respondents in that litigation that support the 2016 Rule. In addition, a petition was filed with EPA for administrative reconsideration of the 2016 Rule that if granted, would pull back the rule for possible modifications. A Proposed Rule was filed and is summarized here. The proposed rule, subject to modifications from comments, would rescind the 2016 Rule and return to the regulations in effect prior to that date.
At issue is an EPA interpretation of essentially two subsections of Section 608 language. In section 608 (a) prior to the 2016 Rule, EPA is required to establish standards and requirements (including all related leak repair documentation) regarding use and disposal of class I and class II substances (ODS refrigerants) during the service, repair, or disposal of air-conditioning and refrigeration appliances or Industrial Process Refrigeration (IPR) and to reduce the use and emission of ODS. Section 608 (a) does not reference non-exempt substitute refrigerants.
Section 608(c) contains what is commonly called the “venting prohibition.” Section 608(c)(1), makes it unlawful for any person in the course of maintaining, servicing, repairing, or disposing of an appliance or IPR to knowingly vent, release, or dispose of any ODS used as a refrigerant in such equipment in a manner that permits that substance to enter the environment. Section 608(c)(1) includes an exemption for “de minimis” releases of such a substance.
Section 608(c)(2) expanded this in November 1995 to apply to any substitute substance for a class I or class II substance unless the Administrator determines that a substance is exempt, meaning that venting, releasing, or disposing of such substance does not pose a threat to the environment (thus creating exempt and non-exempt substitutes.) EPA interprets section 608(c)(2)’s extension of section 608(c)(1) to substitute refrigerants to extend both the prohibition on venting and the de minimis exemption to non-exempt substitute refrigerants and EPA is not proposing to revisit it.
EPA now believes that the reliance on language in section 608 (c)(2) (which included non-exempt substances) to modify section 608 (a) was a flawed interpretation. This difference between section 608(a) and 608(c) could be interpreted as a manifestation of Congressional intent to distinguish between the categories of substances covered in these respective provisions and to only convey authority to address substitute refrigerants under 608(c), not 608(a).
Additionally, there has been much concern publicly reported concerning the certification of technicians and handling of refrigerants. EPA stated that “unrestricted sales will enable untrained or undertrained technicians to obtain access to refrigerants that are likely to be used improperly in connection with servicing activities that will result in the venting of refrigerants” and that “educating technicians on how to contain and conserve refrigerant effectively, curtailing illegal venting into the atmosphere” was one of the primary reasons many technicians previously commented in support of the certification program.
Elements of the 608 program such as the refrigerant sales restriction, technician certification, reclamation standards, and evacuation standards would continue to apply to non-exempt substitute refrigerants if this proposal is finalized. If these other requirements continue to apply, such that, for example, the regulations only permit certified technicians to service equipment regardless of whether it contains ODS or non-exempt substitutes, then those requirements could also reduce the incidence of failure to follow the requirements for ODS appliances.
With regard to the extension of the 608 technician certification requirement to non-exempt substitute refrigerants in the 2016 Rule; EPA understood that most technicians serviced both appliances containing ODS refrigerants, which were previously subject to the 608 technician certification requirements, and appliances containing non-exempt substitutes. Most technicians are contractors who work on appliances of various ages and for multiple clients, including both individuals and businesses.
There was no evidence that facilities using only non-exempt substitute refrigerants are segregated geographically, such that a technician in a certain county would only encounter appliances solely using non-exempt substitutes, or are segregated by business type, such that a technician who only works in one sector (e.g., supermarkets or residential air conditioning) would only encounter appliances solely using non-exempt substitutes.
However, during the development of this notice of proposed rulemaking, one Federal Department indicated that they had 608 certified technicians working on facilities with appliances containing class I or class II refrigerant, and a separate group of un-certified persons working at facilities that contained only appliances using non-exempt substitute refrigerant. EPA may consider comments on this to modify certification requirements.
EPA has 24 requests for comment in the Rulemaking Notice, an extracted list of these can be found here. PHCC will file comments on this rulemaking and would be happy to have your thoughts. Please email email@example.com with any questions or comments.
Vice President of Regulatory Affairs , PHCC-National Association