Last week, EPA fulfilled a promise to reverse the expansion of its refrigerant management program during the Obama Administration. That expansion, which was finalized in 2016 and became effective in 2019, EPA extended the regulations for ozone depleting substances (ODS) to non-ODS “substitute” refrigerants, with the intent of reducing emissions of substitutes that consist of greenhouse gases (GHGs), including some with very high global warming potentials. Last week’s final rule returns the refrigerant management program to its original focus, at least with respect to appliance leak repair requirements, although some regulatory requirements for non-ODS substitute refrigerants will remain in place.

EPA’s refrigerant management program was originally intended to implement the Montreal Protocol ratified by the Senate in 1988, which prompted Congress to add Title VI to the Clean Air Act. The Montreal Protocol and Title VI required the phase-out of ODS refrigerants, including chlorofluorocarbons (CFCs) and hydrochlorofluorocarbons (HCFCs) that deplete the stratospheric ozone layer protecting the planet from the sun’s ultraviolet radiation. As such, the program is very different from most others under the Clean Air Act—rather than protecting the air that humans breathe, where ozone can be harmful, it protects the stratosphere, where ozone is beneficial.

Up until the tail end of the Obama Administration, EPA had only used the program to regulate appliances containing CFCs, HCFCs, and other ODS refrigerants. To minimize emissions of those substances, the program requires owners and operators of appliances containing more than 50 pounds of an ODS refrigerant to keep track of whether the appliance is leaking and then repair it quickly if the leak is above a certain threshold. The leak repair requirements served as a strong incentive for businesses to switch to non-ODS substitutes approved for use by EPA. Over the years, many businesses did switch to substitutes for commercial refrigeration appliances (e.g., grocery store freezers), various industrial processes (e.g., manufacturing of some chemicals and electronics), and air-conditioning appliances that cool the inside of large buildings.

However, many of the substitutes previously approved by EPA contain hydrofluorocarbons (HFCs) that, while not ODS, are GHGs. Seeking GHG emission reductions, the Obama EPA decided to regulate substitutes under the same rules as ODS, including the requirement for repairing leaking appliances. That 2016 expansion rule also suggested that any failure to repair a leaking appliance in accordance with the regulations could be deemed a “knowing violation,” a characterization that raised significant concerns with industry, given the severe penalties potentially associated with intentionally violating the Clean Air Act.

The final rule issued by the Trump Administration retains certain regulations for non-ODS substitutes, such as those regarding the disposal of old appliances and certification of technicians to ensure leaks are minimized when appliances are serviced. State-level regulation of non-ODS substitutes, including in Washington and California, will also remain in place. But the new rule eliminates EPA’s leak repair requirements for non-ODS appliances with more than 50 pounds of refrigerant. Litigation over the rule is likely, although no decision will be issued until after the next presidential election, when EPA’s policy preferences could shift yet again.

For more information regarding this rulemaking action, please contact Mack McGuffey, Angela Levin, or Melissa Horne.