Clean Air Act: Still Challenging (and Challenged) After All These Years

Despite being on the books for more than 25 years, the Clean Air Act regulations regarding recycling of appliances and vehicles (because of their AC units) are still challenging and still being challenged (i.e., heavily enforced). ReMA is aware of recent enforcement activities in EPA Region 5 (Great Lakes from Chicago office) and EPA Region 6 (South Central from Dallas office). Since 2008, EPA Region 5 has conducted the most-aggressive enforcement and has been helping other EPA Regions to conduct enforcement in their regions.

This is serious stuff, if maximum potential civil penalties are good indicators. According to the federal environmental regulations (if you are interested, Table 2 of 40 CFR §19.4), the maximum civil penalty “per day for each violation, or both” (U.S. Code) of these regulations (40 CFR Part 82) is nearly $100,000 for violations today. The maximum is a little lower (at least $93,750) for violations during the past few years, but is much lower (up to $37,500) for violations prior to 2015. It is a complex penalty schedule resulting from government-wide adoption in 2016 of annual inflation adjustments to statutory civil penalties. Again, these are maximum potentials, and while not necessarily ever applied, they have substantial persuasive power.

While we will not go through all of the details of the applicable 40 CFR Part 82 regulations here (ISRI has guidance for members online), I would like to outline compliance options for those recycling appliances and vehicles with AC units. These are often collectively called “appliances”, especially in the “Safe Disposal of Appliances” regulations themselves (40 CFR §82.155). The purpose of these regulations is to prevent the release of refrigerant into the atmosphere. Fairly or not, the regulatory responsibility fell onto and is still on recyclers of appliances.

If you are going to accept “appliances” for recycling, you have two basic compliance options: (one) properly recover any remaining refrigerant from delivered appliances at your yard; and/or (two) verify that refrigerant was properly recovered from appliances prior to their delivery to your yard. You may use Option one for some suppliers and Option two for other suppliers, but you need to be especially careful doing that because the requirements are very different.

Under Option one, you may properly recover refrigerant yourself using recovery equipment that has been certified to meet minimum refrigerant recovery standards. If you are going purchase recovery equipment, consider equipment that can recover and separately store more than one type of refrigerant. Pure recovered refrigerant may have value, but mixed recovered refrigerant almost certainly has none (or worse). Recovery equipment purchased today no longer (since 2017) needs to be registered with your Regional EPA office. Your yard employees are not required to be certified technicians to operate your recovery equipment (always true, but recently codified at 40 CFR §82.161(a)(1)(vii), but they need to operate equipment properly according to manufacturer’s instructions. Recovered refrigerant must be transferred (e.g., sold or offered for pick-up) to someone qualified to receive it (e.g., a certified technician). Alternatively, instead of properly recovering refrigerant yourself on-site, you may use a third-party contractor to properly recover refrigerant using proper equipment and to take the recovered refrigerant off your hands. However, that contractor must be a certified technician to do any and all of that. Whether you recover yourself or use a third party, appliances awaiting recovery should be staged in a secure, well-marked area to ensure that proper recovery happens prior to further handling at the yard (regulators look at that). You may use stickers or markings to show that an appliance has been evacuated; however, doing so has no regulatory meaning and is for your benefit only. You need to keep copies of records (e.g., business records of recovered refrigerant transactions and third-party contractor activities) for at least three years.

Under Option two, you must verify that refrigerant was properly recovered from appliances (including vehicles) prior to their delivery to you for recycling. You may do this via contract or statement. For regular suppliers of appliances, you may use a contract with them specifying that the supplier will either properly recover or ensure proper recovery of refrigerant from appliances delivered during the contract period. For occasional suppliers (e.g., peddlers), you must use a verification statement, and the supplier must provide on the statement all required information. (ISRI’s guidance includes verification language for contracts and for statements.) Whether you use contracts and/or statements, you must notify suppliers that refrigerant must be properly recovered from appliances prior to delivery. You may use signs, letters, or other equivalent means to notify them. Importantly, according to the regulations, you may not accept a signed statement or contract if you know that it is false or likely to be false (regulators look at this too, a lot). You must keep copies of contracts and statements for at least three years.

These are the broad outlines of compliance, and there are situations that present challenges. Compliance gets more complicated and difficult for complex supply chains, because in my view, these regulations were not designed with such complexities in mind.  

If you have any questions, please feel to contact David Wagger at (202) 662-8533 and also consult ISRI’s online guidance for members on the environmental webpage.

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