EPA acknowledges that these recordkeeping and reporting
requirements proposed herein may overlap with recordkeeping and
reporting requirements under 40 CFR part 84, subpart A. EPA is
requesting comments on these recordkeeping and reporting requirements,
the timing of recordkeeping and reporting requirements (e.g., whether
it should be five years similar to recordkeeping requirements under 40
CFR part 84, subpart A), and whether compliance with one set of
requirements would satisfy both obligations.
    EPA is proposing that covered entities maintain an electronic or
paper copy of the fire suppression technician training as discussed in
IV.E.4.c., and that EPA can request to view a copy of the training on
an as needed basis. EPA is also proposing that facilities must document
that they have provided training to personnel. For example, local
personnel records could be annotated, indicating where and when the
training

occurred. Alternatively, records could be centralized. Where EPA is
proposing requirements for recordkeeping, we are proposing that the
record be maintained for three years in either electronic or paper
format.
    As discussed in IV.E.4.d., EPA is proposing that covered entities
maintain records documenting that HFCs are recovered from the fire
suppression equipment before it is sent for disposal, either by
recovering the HFCs themselves before sending the equipment for
disposal or by leaving the HFCs in the equipment and sending it for
disposal to a facility (e.g., fire suppression equipment manufacturer,
distributor, or a fire suppressant recycler). Such records must be
maintained for three years.
    EPA is requesting comment on the proposed recordkeeping
requirements for fire suppression entities. The proposed recordkeeping
requirements in this action do not change any recordkeeping and
reporting requirements for fire suppressant recycling per 40 CFR
84.31(j) and EPA is not reopening, taking comment on, or revisiting
those requirements through this proposal.

F. What is EPA proposing for cylinder requirements and for container
tracking requirements?

1. Background
    As described in more detail earlier in this action, subsection (h)
directs EPA to establish certain regulations regarding the servicing,
repair, disposal, or installation of equipment for certain purposes.
More specifically, for purposes of maximizing reclaiming and minimizing
the release of a regulated substance \108\ from equipment and ensuring
the safety of technicians and consumers, subsection (h)(1) of the AIM
Act gives EPA authority to promulgate regulations to control, where
appropriate, any practice, process, or activity regarding the
servicing, repair, disposal, or installation of equipment that involves
a regulated substance or its substitute or the reclaiming of a
regulated substance or its substitute used as a refrigerant. Thus, EPA
is proposing certain cylinder requirements and certain container
tracking requirements for regulated substances as part of implementing
subsection (h), as a means of controlling a practice, process, or
activity regarding the servicing, repair, and installation of equipment
to further serve the statutory purpose identified in subsection (h) of
maximizing reclamation of HFCs, as well as providing additional HFC
emission reductions.
---------------------------------------------------------------------------

    \108\ As noted previously in this action, ``regulated
substance'' and ``HFC'' are used interchangeably in this action.
---------------------------------------------------------------------------

    HFCs are transported and distributed throughout the United States
to a range of users, including but not limited to blenders,
repackagers, distributors, wholesalers, and equipment manufacturers, as
well as users engaged in the installation, service, repair, and
disposal of equipment. For example, containers are used to transport
HFCs to worksites for servicing, repairing, disposing, or installing
equipment containing HFCs. HFCs are transported, bought, and sold in
different sizes and types of containers as they move through the supply
chain. These containers range from small cans with 16 ounces or less of
HFCs to tank trailers, International Organization for Standardization
(ISO) tanks, and tank railcars. From the larger containers, HFCs are
often transferred to smaller containers (a process referred to as
``downpacking''), which include other types of refillable cylinders and
disposable cylinders.
    EPA provided information on the movement of HFCs used as
refrigerants in the supply chain as they relate to reclamation in the
draft report accompanying the NODA published on October 17, 2022 (87 FR
62843), and the Agency provides additional information in the updated
report in the docket for this proposed rule. In comments submitted for
the NODA and in public stakeholder meetings that the Agency
hosted,\109\ EPA received feedback noting that one key challenge to
increasing reclamation is ensuring that HFCs are recovered and
transferred to reclaimers. Accordingly, EPA views the proposed
container tracking requirements in this action as measures that could
``increase opportunities for the reclaiming of regulated substances
used as refrigerants,'' and thus EPA's consideration of the use of its
authority under subsection (h) of the AIM Act to establish these
tracking measures is consistent with subsection (h)(2)(A).
Additionally, specifically tracking the movement in the market of
reclaimed HFCs would have the added benefit of supporting compliance
with the requirements described in this proposal for using reclaimed
HFCs for initial charging and servicing of certain equipment as well as
providing information that the reclaimed HFCs contain no more than 15
percent virgin material (see section IV.D.2.).
---------------------------------------------------------------------------

    \109\ Comments submitted to response of NODA published on
October 17, 2022 (87 FR 62843), can be found in the docket for this
action. Additionally, EPA heard feedback from participants in the
public meetings it hosted on November 9, 2022, and March 16, 2023,
as well as solicited feedback through a webinar for the EPA
GreenChill Partnership program on April 12, 2023.
---------------------------------------------------------------------------

    As discussed in greater detail below, EPA is proposing to require
machine readable tracking identifiers (e.g., QR code,\110\ or another
identifier(s)) on all containers of HFCs (i.e., containers that contain
an HFC, whether neat or in a blend), that could be used for the
servicing, repair, or installation of refrigerant-containing equipment
or fire suppression equipment, including both refillable and disposable
cylinders. EPA is proposing staggered compliance dates, ranging from
January 1, 2025, to January 1, 2027, for this requirement that would
apply to various entities involved in the transport of HFCs across the
supply chain. EPA is also proposing certain requirements for tracking
the movement of containers that contain HFCs and that have been used in
the servicing, repair, or installation of equipment as they are sent to
an entity capable of recovering any remaining HFCs.
---------------------------------------------------------------------------

    \110\ A QR code is a type of matrix barcode that contains data
for a locator, identifier, or tracker that points to a website or
application using standardized encoding modes to store data. It is
recognizable as black squares arranged in a square grid on a white
background, which can be read by an imaging device such as a camera.
---------------------------------------------------------------------------

    After cylinders are used and considered empty, there is still an
amount of HFCs remaining in the cylinders, referred to as the ``heel.''
HFC releases of heels are far more likely to occur from disposable
cylinders than from other types of cylinders, and those amounts of HFCs
released are not available for reclamation. Refillable cylinders are
typically evacuated and recharged, thus continuing to be used to
transit HFCs whereas disposable cylinders are typically sold for scrap
or landfilled. To recover the remaining HFCs, including the heel,
recovery equipment can be used to pull a vacuum on the cylinder.
Section IV.F.2. provides additional detail on typical quantities of the
heel that would remain in a cylinder. Recovering heels from disposable
cylinders would increase the amount of HFCs available for reclamation.
Therefore, for disposable cylinders, EPA is proposing to require as of
January 1, 2025, that disposable cylinders that contain HFCs and that
have been used for the servicing, repair, or installation of certain
equipment must be transported to an EPA-certified reclaimer or a fire
suppressant recycler. Further, EPA is proposing that reclaimers or
fire-suppressant recyclers who receive these disposable cylinders would
be required to remove the

remaining HFCs, including the heel, prior to disposing of these
cylinders.
    EPA also notes that it established certain requirements for QR
codes and use of refillable cylinders in the Allocation Framework Rule.
Those requirements were subject to judicial review in the D.C. Circuit,
and the court concluded that ``EPA has not identified a statute
authorizing its QR-code and refillable-cylinder regulations'' and
therefore vacated those parts of the rule and remanded to the EPA.
Heating, Air Conditioning & Refrigeration Distributors Int'l v. EPA, 71
F.4th 59, 68 (D.C. Cir. 2023) (``HARDI v. EPA'').\111\ The court's
opinion concluded that subsection (e)(2)(B) of the AIM Act, the
statutory provision the Agency had cited as authorizing those parts of
the rule, did not provide the authority to support them. However, that
conclusion rested on limitations on the scope of the EPA's authority
under subsection (e)(2)(B) in particular, and it does not apply to
other parts of the AIM Act. In fact, the court's opinion highlights the
authority that EPA has under other statutory provisions, including its
``power to pass rules regulating `practice[s], process[es], or
activit[ies]' for `servicing, repair[ing], dispos[ing of], or
install[ing]' '' equipment, citing subsection (h)(1). Id. at 67. The
cylinder requirements and tracking requirements proposed in this action
are distinct from those that were established in the Allocation
Framework Rule (86 FR 55116, October 5, 2021), as they are being
proposed under a different statutory provision, subsection (h)(1) of
the AIM Act, and are tailored to that subsection. As described in
greater detail below, these requirements would regulate ``practice[s],
process[es], or activit[ies] regarding the servicing, repair, disposal,
or installation of equipment that involves regulated substances'' and
thus are within the authority provided by subsection (h)(1).\112\
---------------------------------------------------------------------------

    \111\ The court rejected the other challenges to the Allocation
Framework Rule in this litigation. Heating, Air Conditioning &
Refrigeration Distributors Int'l v. EPA, 71 F.4th 59, 61 (D.C. Cir.
2023).
    \112\ EPA further notes that in proposing separate cylinder
recovery requirements and tracking requirements in this action, EPA
is not proposing to change, reopen, or revisit any of the
requirements related to use of refillable cylinders or certification
and tracking requirements established in the Allocation Framework
Rule; rather EPA expects to address the court's decision in HARDI v.
EPA in a separate action.
---------------------------------------------------------------------------

    In the interest of clarity, EPA notes that it is not at this time
proposing a prohibition on the use of disposable cylinders like the
prohibition in the Allocation Framework Rule that was at issue in HARDI
v. EPA. Rather, EPA is proposing here certain practices, processes, or
activities related to the use of disposable cylinders in the servicing,
repair, disposal, or installation of equipment that involves a
regulated substance as discussed below.
2. Requirements for Disposable Cylinders
    EPA is proposing certain requirements for users of disposable
cylinders that contain HFCs that could be used in the servicing,
repair, or installation of certain equipment. As described in more
detail earlier in this action, subsection (h)(1) directs EPA to
promulgate regulations to control, where appropriate, any practice,
process, or activity regarding the servicing, repair, disposal, or
installation of equipment that involves regulated substances, among
other things, for purposes of maximizing reclaiming and minimizing the
release of a regulated substance from equipment and ensuring the safety
of technicians and consumers. Both disposable and refillable cylinders
are used during the service or repair of equipment, and both could be
used during the installation of a piece of equipment that is initially
charged in the field. For the purpose of maximizing the reclamation of
HFCs, EPA is proposing to require that disposable cylinders that
contain HFCs and that have been used for the servicing, repair, or
installation of refrigerant-containing equipment or fire suppression
equipment must be sent to an EPA-certified reclaimer or a fire
suppressant recycler. EPA is also proposing that these entities (i.e.,
reclaimers and fire suppressant recyclers) must remove all HFCs,
including any remaining amount after the cylinders are considered empty
for servicing, repair, and installation purposes (e.g., the heel),
prior to the disposal of these cylinders. The proposed requirements to
send disposable cylinders and the removal of the remaining HFCs will
contribute to EPA's efforts to maximize reclaiming by ensuring that any
remaining HFCs (including heels) have been evacuated and recovered, and
thus are available for reclamation, rather than being released over
time when disposable cylinders are placed in landfills or are crushed
for scrap metal recycling. EPA interprets its authority under
subsection (h)(1) of the AIM Act to ``promulgate regulations to
control, where appropriate, any practice, process, or activity
regarding the servicing, repair, disposal, or installation of
equipment'' to include authority to regulate the entire practice,
process, or activity, including aspects of it that may occur before or
after the servicing, repair, disposal, or installation of the
equipment, especially where such regulations help achieve the purposes
specified in subsection (h)(1) (e.g., ``maximizing reclamation'').
Thus, because use of these cylinders in servicing, repair, and
installation of equipment is a practice, process, or activity regarding
the servicing, repair, and installation of equipment, EPA interprets
section (h)(1) to convey authority to establish the proposed
requirements for the treatment of the cylinder after servicing, repair,
or installation. Requiring that disposable cylinders be sent to
entities able to remove the HFCs would have the effect of increasing
the amount of HFCs that could be reclaimed and reused in the servicing,
repair, or installation of refrigerant-containing equipment or fire
suppression equipment. In addition, the result of these proposed
requirements would be fewer HFC emissions, as compared to allowing such
single use, disposable cylinders to be disposed with HFCs still in the
cylinder.
    Compressed gases, such as HFCs, can be stored and transported in a
variety of containers, which often hold as little as sixteen ounces (or
even smaller for lab samples) or as much as a ton (or even more in the
case of railcars and ISO tanks). The size and type of the container
depend in large part on the intended use of the regulated substance.
Historically, HFC refrigerant \113\ sold in the United States for
technicians servicing existing RACHP equipment has been predominantly
contained in disposable cylinders certified to Department of
Transportation (DOT) specifications. These cylinders are often called
DOT-39 cylinders because the cylinders are certified to meet DOT
specification 39 requirements.\114\ A DOT-39 cylinder is designed for a
single use and is strictly not refillable. As such, a DOT-39 cylinder
tends to be less expensive and weigh less than refillable refrigerant
cylinders. Disposable cylinders of the same capacity \115\ typically
have the same shape and are also often shipped in a box while
refillable cylinders are typically not. Refillable refrigerant

cylinders are also used to a lesser extent and considered to be more
durable, lasting up to 20 years. The two primary shapes of refillable
refrigerant cylinders currently being used in servicing, repair, and/or
installation are akin to a propane tank or a cylindrical scuba tank and
have a two-way valve that can be adjusted to allow pressurized gases in
or out.
---------------------------------------------------------------------------

    \113\ EPA understands that HFC fire suppressants are less likely
to be found in disposable cylinders; however, in case they are, EPA
is treating them the same as HFC refrigerants in disposable
cylinders in this proposal.
    \114\ See 49 CFR 178.65--Specification 39 non-reusable (non-
refillable) cylinders.
    \115\ Typically, disposable cylinders of the same designed water
capacity have the same shape. For example, disposable cylinders with
a ~30-pound water capacity will generally have the same shape;
however, disposable cylinders with a ~16-pound water capacity would
be smaller in size and shape.
---------------------------------------------------------------------------

    HFC losses are more likely to occur, and in more significant
quantities, from disposable cylinders, including losses from the
residual amount of HFCs (i.e., heels) that remain in cylinders after
the majority of the HFC has been removed from the cylinder for use.
With disposable cylinders, these heels, which can measure up to 10
percent of the quantity that was originally stored in the container,
would be released to the atmosphere when the cylinder is disposed of,
unless the heel was recovered prior to disposal. In addition,
disposable cylinders may be disposed with greater amounts of HFCs than
a typical heel in the cylinder particularly if the technician has
limited space to carry partially full cylinders. This differs from a
refillable cylinder, since such cylinders can be refilled whereas the
design of disposable cylinders inherently means they cannot be
refilled. In the Analysis of the Economic Impacts and Benefits of the
Proposed Rule draft TSD developed to support this proposed rule, EPA
considered a typical range for the heel remaining in disposable service
cylinders of 2 to 6 percent while noting information that suggests
heels can be as high as 10 percent. This range is consistent with
previous theoretical and empirical studies, as referenced in the draft
TSD, that have estimated the remaining heel in disposable 30-pound
cylinders to usually range between 2 to 6 percent, though this percent
could vary depending on the application in which the cylinder is used
as well as the refrigerant contained in the cylinder. As also reflected
in the draft TSD, industry estimates that disposable cylinders contain
a heel that is typically between 1 (~3 percent) to 1.5 pounds (5
percent). The lead assumption used by EPA to assess the impacts of this
proposal was to assume the heels are approximately 1.25 pounds (~4
percent) for a typical disposable cylinder of 25-30 pounds.
    EPA is concerned about the reduction in the amounts of HFC that
could be available for reclaiming due to losses of HFCs associated with
current practices of disposing single use, disposable cylinders used in
the servicing, repair, or installation of refrigerant-containing or
fire suppression equipment. Accordingly, proposing to require that HFCs
contained in disposable cylinders must be recovered prior to the
disposal of cylinders will reduce HFC losses from disposable cylinders.
EPA is also aware that as the HFC phasedown continues, scarcity of
virgin HFCs will increase. HFCs recovered and reclaimed (or recycled,
in the case of recovered fire suppressants) can be used for servicing,
repair, disposal, or installation of equipment thus providing
additional options for increasing the amounts of usable HFCs.
    EPA is proposing a compliance date of January 1, 2025, for
requiring that disposable cylinders be sent to a reclaimer or fire
suppressant recycler and for the recovery of HFCs from disposable
cylinders, in part because EPA understands that a viable distribution
chain for sending HFCs in containers to reclaimers or fire suppressant
recyclers already exists. This current distribution chain is currently
in place for refillable cylinders and cylinders that are exclusively
used for the recovery of HFCs from equipment, referred to as recovery
cylinders. This distribution chain could just as effectively be used
for sending disposable cylinders containing remaining HFCs to
reclaimers or fire suppressant recyclers, and to some extent, already
is in use for disposable cylinders. Several reclaimers indicated to EPA
that their existing means for transporting recovery cylinders can also
be used for disposable cylinders that contain HFCs and that have been
used in the servicing, repair, or installation of refrigerant-
containing equipment or fire suppression equipment. Further, some
reclaimers have also indicated that they currently accept disposable
cylinders to remove and recover any remaining heels left in the
disposable cylinders.
    HFCs that are recovered from equipment during servicing, repair, or
disposal of equipment are recovered into designated types of cylinders.
Such recovery cylinders are, in general, uniquely identifiable (often,
they are painted gray and yellow). These cylinders are sent to
reclaimers or fire suppressant recyclers after HFCs have been recovered
in the field from a piece of equipment, either through a distributer or
wholesaler or directly from a contractor to the reclaimer or fire
suppressant recycler. Refillable cylinders may be sent to producers,
blenders, repackagers, reclaimers, and fire suppressant recyclers, or
other entities for continued use. Therefore, HFCs in recovery and
refillable cylinders are already transported from the field to
reclaimers through various means, including with or without a network
of distributors that collects cylinders. For example, reclaimers,
wholesalers, or distributors may maintain a fleet of refillable or
recovery cylinders and may use a deposit-based system for technicians
and contractors to return the cylinders. EPA notes these distribution
chains for returning cylinders to the entity responsible for removing
the remaining the heels are already established and in use. Contractors
and technicians can make use of the existing channels they may already
be using to send disposable cylinders to reclaimers or fire suppressant
recyclers. Thus, the proposed requirement with a compliance date of
January 1, 2025, that disposable cylinders with remaining heels be sent
to a reclaimer or fire suppressant recycler is feasible.
    As stated previously, every cylinder, whether disposable or
refillable, still retains a residual amount of its contents, (e.g.,
heel) even when it is considered empty for purposes of servicing,
repair, or installation of equipment, and some cylinders may contain
more than a heel if not all the contents are used. Removing this heel
requires the use of recovery equipment, like that used to recover
refrigerant from an appliance. Unfortunately, it currently is not
common practice to remove the heel from disposable cylinders before
they are ultimately disposed. Current practices for disposal of
disposable cylinders are to prevent refilling a disposable cylinder and
include puncturing the rupture disk or breaking off the shutoff
valve,\116\ since they are not designed to have material re-enter them.
The disposal practice also demonstrates that the cylinder no longer
contains any remaining heel, as any heel that had been in the cylinder
would be released through these disposal practices. If the practice of
puncturing the rupture disk or breaking off the shutoff valve has not
been performed, HFCs in disposable cylinders could be released to the
atmosphere during the disposal of the cylinder, and ultimately any
remaining HFCs are released if the cylinder is crushed for scrap metal
recycling. Even if the cylinder is not used for scrap metal recycling,
disposable cylinders that are disposed of in a landfill have the
potential to release any residual HFCs as the seal can degrade over
time.
---------------------------------------------------------------------------

    \116\ EPA also notes that other Federal regulations expressly
prohibit the transportation of DOT-39 cylinders if refilled (49 CFR
178.65).
---------------------------------------------------------------------------

    EPA is proposing that the remaining heel in containers that have
been used in the servicing, repair, or installation of equipment would
not be considered a virgin regulated substance. As EPA

understands, some reclaimers who currently recover heels or any
remaining residue from cylinders treat the returned refrigerant as used
recovered material that could be contaminated and run the heel through
the reclamation process as though it were returned in a recovery
cylinder. This practice ensures that the heel is reprocessed, and the
resulting reclaimed HFC product meets the correct standard. EPA notes
that under section IV.D.2. of this proposal, reclaimed HFC refrigerants
would be limited to containing no more than 15 percent virgin HFCs, by
weight. For the purposes of maximizing the reclaiming of HFCs, EPA does
not intend for this remaining heel to count as part of the 15 percent
of virgin HFC refrigerant allowed in reclaimed HFC refrigerant because
this would penalize reclaimers that are recovering the heel from
cylinders.
    EPA is also considering and seeking comments on an alternative
approach to the proposal requiring that disposable cylinders that
contain HFCs and that have been used in the servicing, repair, or
installation of refrigerant-containing equipment or fire suppression
equipment be returned to an EPA-certified reclaimer or a fire
suppressant recycler. The alternative approach would involve requiring
the final processor of a disposable cylinder to ensure that all
regulated substances, including the remaining heel, have been recovered
prior to final disposition of the cylinder. EPA currently has similar
provisions under 40 CFR 82.155 for certain appliances, including
requirements that a final processor (e.g., scrap recyclers and landfill
operators) either recover any remaining refrigerant from the appliance
or receive a verification statement that the refrigerant in the
disposed appliance has previously been recovered. EPA is also
considering an approach that would establish a requirement that draws
from both the lead proposal and alternative approach. The
distinguishing feature would be to allow more than just EPA-certified
reclaimers to perform the recovery (e.g., distributors and
wholesalers), while requiring all recovered material be sent to an EPA-
certified reclaimer. In addition, 82.155(a) states that persons
recovering refrigerant from certain appliances that would be disposed
are required to evacuate refrigerant from the appliances. In either
case, refrigerant must be evacuated from the appliance to a specified
level using recovery equipment that meets applicable standards. EPA
would also consider establishing recordkeeping provisions to ensure
that disposable cylinders that contained HFCs have been evacuated
appropriately before final disposition (e.g., landfill operator of
scrap recycler). EPA is seeking comment on all aspects of this
potential alternative approach. For example, EPA would be interested in
comments related to the level of vacuum needed or if recovery equipment
that meet specific standards would be needed to ensure the remaining
amount of refrigerant in the disposable cylinder is fully removed.
    EPA has separately learned via a petition for partial
administrative reconsideration of the Allocation Framework Rule (see
https://www.regulations.gov/comment/EPA-HQ-OAR-2021-0044-0229) and
other communication with one manufacturer who has been developing a
redesigned disposable cylinder that, according to the company, includes
features meant to prevent intentional venting and fugitive emissions,
provide visually identifiable unique handle shapes, and accommodate
machine-readable tracking identifiers (e.g., QR codes or RFID chips).
EPA has only limited information on this newly designed disposable
cylinder prototype and seeks any relevant information from commenters
on such newly designed disposable cylinders, whether from that
manufacturer or other manufacturers. EPA understands that the newly-
designed technology from the one manufacturer is proprietary and is a
prototype that has not been commercialized. EPA seeks comment on
whether this redesigned cylinder could address heels of HFC remaining
in the cylinders upon disposal, which result in emissions rather than
being reclaimed. Given that the language in subsection (h) concerns
both maximizing reclaiming and minimizing the release of regulated
substances from equipment and contemplates regulations to control of
practices, processes, or activities regarding servicing, repair,
disposal, or installation of equipment, EPA is seeking additional
information about the cylinder's ability to consistently deliver leak
reductions during normal use. The Agency is also seeking additional
information about when or if this redesigned cylinder would be
commercially available. Further, EPA is seeking information about
whether this redesigned cylinder could improve the ability for the
remaining heel to be recovered before the cylinder is disposed.
Additionally, if commenters have information about other cylinder
manufacturers meeting similar metrics, EPA seeks similar information.
    EPA requests comment on all aspects of this proposal including the
requirement for disposable cylinders that contain HFCs and that have
been used for the servicing, repair, or installation of refrigerant-
containing equipment or fire suppression equipment to be sent to
reclaimers or fire suppressant recyclers, respectively; the timing for
compliance; and the amounts of regulated substances likely to either
remain in or be emitted from discarded disposable cylinders absent
requirements for HFC removal. EPA is requesting comment on the current
channels by which contractors or technicians return cylinders
containing HFCs to reclaimers or fire suppressant recyclers. EPA is
also seeking comment on the alternative approach which involves the
final processor ensuring that all regulated substances, including the
remaining heel, have been recovered prior to final disposition of the
cylinder. Further, EPA requests comment on the consideration to
establish a requirement that draws from the lead proposal and the
alternative approach. EPA is interested in comments of current disposal
practices for disposable cylinders that involve the recovery of the
heel and the subsequent handling of the recovered heel.
3. Container Tracking
    EPA is proposing certain tracking requirements for regulated
substances that are used in servicing, repair, or installation of
certain equipment. These requirements are being proposed as part of
implementing subsection (h)(1) of the AIM Act, as these provisions
would control practices, processes, or activities regarding servicing,
repair, or installation of equipment, and would involve a regulated
substance or, in some cases, the reclaiming of a regulated substance
used as a refrigerant. More specifically, these requirements would
control practices, processes, and activities regarding the
identification of regulated substances that could be used for
servicing, repair, or installation of certain equipment, as well as the
tracking of reclaimed HFCs in the supply chain. It is critical for
technicians and owners or operators of equipment to know the identity
of the regulated substances that they are using for servicing, repair,
or installation of equipment, so that they can ensure that those
regulated substances are compatible with the specifications of that
equipment. For example, if equipment has been designed for use with
non-flammable HFCs, it is important that technicians and owners or
operators can confirm that the HFCs they are using to service, repair,
or install the equipment is nonflammable. As described above, regulated

substances are transported or stored during various points in the
supply chain, particularly for applications where the regulated
substances are used for the servicing, repair, or installation of
equipment that contain or will contain the regulated substances. The
proposed tracking requirements would allow the technicians to verify
the identity of regulated substances in a container, and that it meets
any applicable regulatory requirements and technical specifications,
before they use it for servicing, repair, or installation of certain
equipment. In addition, understanding the movement of the regulated
substances through the supply chain (both for virgin HFCs and for HFCs
that have been recycled (as it relates to fire suppressants) and/or
reclaimed) is important to understanding the ways they are used and
where additional opportunities for recovery, reclamation, and/or
recycling (related to fire suppressants) exist. Further, the ability to
track regulated substances in the supply chain would allow the Agency
to account for the actual amount of regulated substances used in
equipment, verify adherence with the requirements of the regulations,
and identify sectors, subsectors, or places in the supply chain where
emissions occur. Tracking movement of regulated substances, including
to reclaimers in certain circumstances, supports the goal of maximizing
reclaiming of regulated substances by providing information to better
identify challenges to increasing reclamation. This information may
also be useful to better understanding points in the supply chain where
HFC releases from equipment can be minimized in the future, and thus
further serve one of the purposes stated in subsection (h)(1).
a. Container Tracking of Regulated Substances
    EPA is proposing that any container (whether disposable or
refillable) of regulated substances that enters into U.S. commerce and
contains HFCs that could be used in the servicing, repair, or
installation of refrigerant-containing equipment or fire suppression
equipment must contain a machine-readable tracking identifier (e.g., QR
code, or another identifier(s)) that contains relevant information, as
described in this section.
    The proposed tracking requirements for HFCs entering U.S. commerce
that could be used in the servicing, repair, or installation of
refrigerant-containing equipment would allow for tracking the movement
of reclaimed HFCs and ensure that reclaimed HFCs are used in the
subsectors in which requirements regarding their use are being
proposed. These proposed requirements for tracking would also apply to
HFCs that could be used in the servicing, repair, and installation of
fire suppression equipment and would allow for the tracking of recycled
HFC fire suppressants and ensure the use of recycled HFCs for fire
suppression equipment to meet the proposed requirements. As such, these
proposed tracking requirements have the added benefit of supporting and
facilitating efforts to ensure compliance with the proposed
requirements for the use of reclaimed or recycled HFCs, as applicable,
in certain RACHP subsectors and the fire suppression sector. They help
to ensure that technicians and owners or operators of equipment in
those sectors can easily determine whether the HFCs that they are using
for servicing, repair, or installation of refrigerant-containing
equipment or fire suppression equipment are reclaimed or recycled,
respectively, and otherwise meet the proposed requirements. In that
way, these proposed requirements would further serve the purpose
described in subsection (h)(1) of the AIM Act to maximize the
reclaiming of regulated substances.
    For tracking the movement of HFCs, EPA is proposing to require the
generation of a machine-readable tracking identifier (e.g., QR code or
another identifier) by importers, producers and repackagers,
reclaimers, and fire suppressant recyclers. Tracking HFCs through
machine-readable tracking identifiers would provide information that
helps support compliance with requirements for the use of reclaimed
HFCs in certain refrigerant-containing equipment, as proposed in this
action, such as whether reclaimed HFCs are being used in certain RACHP
subsectors. The machine-readable tracking identifiers would provide
information that would more easily allow for the determination of
whether a given container of reclaimed HFCs has met the proposed
standard in this action that no more than 15 percent virgin HFCs are
contained in the reclaimed HFCs. Further, the machine-readable tracking
identifiers would also support compliance of the proposed requirements
for using recycled HFCs in fire suppression equipment. The machine-
readable tracking identifier must be affixed to containers of regulated
substances and include certain data elements. When the machine-readable
tracking identifier is scanned, it will point to a website with a
database that will indicate if the HFC in the container meets
regulatory requirements, and provide certain data elements, for
example, the quantity and common name of the HFC or HFC blend, the name
it is currently being marketed under (e.g., trade name or brand), and
the date the container was filled. A discussion of the information that
would be required is provided in this section of the preamble and a
discussion of how the data would be treated as confidential or not is
described in section V. of this preamble. EPA is proposing that in the
case where a machine-readable tracking identifier affixed to a
container is damaged or otherwise unreadable, this would be the same as
not having a machine-readable tracking identifier at all, which would
be a violation of the proposed requirements.
    EPA is proposing that the tracking information must be updated each
time the regulated substances that could be used in the servicing,
repair, or installation of refrigerant-containing equipment or fire
suppression equipment are bought/sold or portioned into another
container. For example, when regulated substances in larger containers
are downpacked to smaller containers, the tracking information would
need to be updated. Tracking information would also be required to be
updated when the regulated substances in containers are bought or sold
up to the point of sale to the final customer of the regulated
substance (e.g., a contractor who purchases regulated substances for
their use in the servicing, repair, or installation of equipment). EPA
is proposing that, as the regulated substances move in the supply
chain, the person selling the regulated substances must scan the
machine-readable tracking identifier as the container is sold and
update the tracking information, and the person buying the container of
regulated substances would need to do the same. For example, EPA is
proposing that a person selling a container of regulated substances
would need to identify the person receiving the container and indicate
if that person is a supplier or a final customer in the tracking
system. This would document the chain of custody as the regulated
substance moves through the supply chain. For both disposable and
refillable cylinders that contain regulated substances that could be
used in the servicing, repair, or installation of refrigerant-
containing equipment or fire suppression equipment, EPA is proposing
certain requirements for tracking the movement of the cylinder after it
is used (as described in section IV.F.3.).

    EPA is proposing to require any person who produces, imports,
reclaims, recycles for fire suppression uses, repackages, or fills into
a container regulated substances, reclaimed regulated substances, or
recycled regulated substances that could be used in the servicing,
repair, or installation of refrigerant-containing equipment or fire
suppression equipment must register with EPA in the tracking system no
later than the first time they would be required to generate a machine-
readable tracking identifier. EPA notes that for those entities that
may wish to register in advance of the required date to generate a
machine-readable tracking identifier, registration in the tracking
system would be available 30 or 60 days prior to the applicable
compliance date (e.g., as early as November 1, 2024, for producers and
importers). Likewise, EPA is proposing to require that any person who
purchases, sells, distributes, or offers for sale or distribution,
regulated substances that could be used in the servicing, repair, or
installation of refrigerant-containing equipment or fire suppression
equipment must register with EPA in the tracking system no later than
the first time the person would be required to update tracking
information in the system. EPA notes that for those persons involved in
the purchase, sale, or distribution or offering for sale or
distribution of regulated substances who wish to register earlier may
do so. To support the effective implementation of the tracking system,
EPA intends to offer various opportunities for training potential users
through webinars, fact sheets, and other guidance materials prior to
the earliest required compliance dates.
    Additional detail on requirements for registering in the tracking
system can be found in Sec.  84.118 of the proposed regulatory text. To
support this provision, EPA is prohibiting any person from purchasing
or receiving, or attempting to purchase or receive regulated substances
that could be used in the servicing, repair, or installation of
refrigerant-containing equipment or fire suppression equipment from
someone that is not registered with EPA. Nevertheless, EPA is proposing
that this prohibition would not apply to a person purchasing or
receiving, or attempting to purchase or receive regulated substances
only for uses that are not related to refrigerant-containing equipment
or fire suppression equipment (e.g. foams, aerosol propellants). EPA
notes that for larger containers that contain regulated substances that
may be used in multiple sectors, the Agency is proposing to require
those containers would be subject to the proposed prohibition if any
regulated substances in the container could be used for refrigerant-
containing equipment or fire suppression equipment in order to ensure
that those regulated substances are accurately accounted for. As EPA
understands the supply chain, HFCs may change hands one or more times
before it is purchased by the final entity in the distribution chain
and subsequently sold to the final customer. As the HFCs move through
the supply chain to the final customer, sellers/distributors would need
to scan the containers as they are sold and update the information as
needed, and buyers who intend to purchase/receive the HFCs, other than
the final customer, would need to do the same.
    For importers, EPA is proposing that the following information be
included in the tracking system for the generation of a machine-
readable tracking identifier for regulated substances that could be
used in servicing, repair, or installation of equipment:
     The name or brand the regulated substance is being sold
and/or marketed under;
     The date it was imported;
     The size of the container(s);
     The entry number and entry line number associated with the
import;
     The unique serial number associated with the container;
     The amount and name of the regulated substance(s) in the
container;
     The name, address, contact person, email address, and
phone number of the responsible party at the facility where the
container of regulated substance(s) was filled; and
     Certification that the contents of the container match the
substance(s) identified on the label.
    For producers and repackagers of regulated substances, EPA is
proposing that certain information must be included in the tracking
system for the generation of a machine-readable tracking identifier for
regulated substances that could be used in servicing, repair, or
installation of equipment. This information would be required to be
included whether a container is filled for the first time after
production or when transferring regulated substances from one container
to one or more smaller or larger containers. EPA is proposing the
following information must be included when generating the machine-
readable tracking identifier:
     The name or brand the regulated substance is being sold
and/or marketed under;
     The date the container was filled and by whom;
     The unique serial number associated with the container;
     The amount and name of the regulated substance(s) in the
container;
     The quantity of containers it was packaged in;
     The size of the containers;
     The name, address, contact person, email address, and
phone number of the responsible party at the facility where the
container(s) were filled; and
     Certification that the contents of the container match the
substance(s) identified on the label.
    EPA is proposing that any person filling a container with reclaimed
HFC refrigerants that could be used in servicing, repair, or
installation of equipment include certain information in the tracking
system for the generation of the machine-readable tracking identifier.
This information would include the following:
     The name or brand the regulated substance is being sold
and/or marketed under;
     When the HFC was reclaimed and by whom;
     The date the reclaimed regulated substance was put into a
container;
     The unique serial number associated with the container;
     The size of the containers;
     The amount and name of the regulated substance(s) in the
container;
     The amount of virgin regulated substance(s) in the
container, if any, and that the contents of the container are certified
per Sec.  84.112(d) of the proposed regulatory text;
     Reclaimer certification that the purity of the batch was
confirmed to meet the specifications in appendix A to 40 CFR part 82,
subpart F; and
     Certification that the contents of the container match the
substance(s) identified on the label.
    EPA is proposing that any person filling a container with recycled
regulated substances that could be used for servicing or installing
fire suppression equipment, including for example fire suppressant
recyclers, include certain information in the tracking system for the
generation of the machine-readable tracking identifier. This
information would include the following:
     The name or brand the regulated substance is being sold
and/or marketed under;
     The date the container was filled and by whom;
     The size of the containers;
     The unique serial number associated with the container;
     The amount and name of the regulated substance(s) in the
container;

     The amount of virgin regulated substance(s) in the
container, if any; and
     Certification that the contents of the container match the
substance(s) identified on the label.
    EPA is proposing a schedule for those required to generate a
machine-readable tracking identifier and affix to containers to support
the effective implementation of the tracking provisions in this
proposal. As of January 1, 2025, EPA would require machine-readable
tracking identifiers on all containers of HFCs that could be used in
servicing, repair, or installation of refrigerant-containing equipment
or fire suppression equipment that are imported, sold or distributed,
or offered for sale or distribution by producers and importers. As of
January 1, 2026, EPA would require machine-readable tracking
identifiers on all containers of HFCs that could be used in the
servicing, repair, or installation of refrigerant-containing equipment
or fire suppression equipment that are filled, sold or distributed, or
offered for sale or distribution, by all other repackagers and cylinder
fillers in the United States, including reclaimers and fire suppressant
recyclers. As of January 1, 2027, EPA would require a machine-readable
tracking identifier on every container of HFCs that could be used in
servicing, repair, or installation of refrigerant-containing equipment
or fire suppression equipment that are sold or distributed, offered for
sale or distribution, purchased or received, or attempted to be
purchased or received.
    EPA understands that effectively implementing the tracking system
in industry will require logistical adaptation and technological
investment. Thus, EPA is proposing a phased-in approach for the
tracking requirements would support implementation and provide
additional time after the final rule is published for industry to
adjust to the proposed requirements when they are fully implemented.
Under this phased-in approach, the Agency would have more time to
consult industry and develop an appropriate tracking system. Similarly,
industry would have more time to adapt existing systems and/or procure
any technology needed to support the tracking system and train staff.
Further, this tracking system would have the additional advantage of
supporting the proposed requirements for the use of reclaimed HFCs. It
would provide an easy means for an entity to identify reclaimed HFCs
and thus helps support compliance with those aspects of this proposal.
For example, the tracking system would help ensure reclaimed HFCs are
being used consistent with the proposed requirements in section IV.D.
of this action. EPA notes that the Agency could consider making the
tracking system available for use on a voluntary basis ahead of the
applicable compliance dates for different types of users.
    EPA is requesting comment on all aspects of this proposal. In
particular, EPA is requesting comment on the proposed requirements for
the tracking system related to the timing of the requirements. EPA is
seeking comment on the phased-in approach to apply the requirements for
effective implementation of the proposed provisions. EPA is also
seeking comment on the time needed by industry for particular
technological or logistical changes to effectively implement the
tracking system requirements in this proposal.
b. Container Tracking of Used Cylinders
    EPA is proposing specific requirements for the tracking of
cylinders that contain HFCs and that have been used for the servicing,
repair, or installation of refrigerant-containing equipment or fire
suppression equipment. As noted in section IV.F.2., after cylinders
(both disposable and refillable) containing regulated substances have
been used in these practices, processes, and activities, they still
have a remaining portion of regulated substances (i.e., the heel).
Tracking these cylinders that contain a heel serves the purpose
identified in subsection (h)(1) of maximizing reclaim. Further,
subsection (h)(2)(A) of the AIM Act provides that EPA consider its
authority for increasing opportunities for reclaiming of regulated
substances. Requiring tracking of the remaining heel in cylinders would
ensure that the heel could be recovered and promote additional reclaim.
    As proposed in section IV.F.2., EPA would require that disposable
cylinders that contain HFCs and that have been used in the servicing,
repair, or installation of refrigerant-containing equipment or fire
suppression equipment be required to be returned to a reclaimer or fire
suppressant recycler so that the remaining regulated substances,
including heels, can be recovered. EPA is proposing that after a
disposable cylinder is used in the servicing, repair, or installation
of such equipment, it would be required to be tracked until it reaches
an EPA-certified reclaimer or a fire suppressant recycler. As EPA
understands and describes above, technicians and contractors (for
refrigerant-containing equipment or fire suppression equipment)
currently have channels for returning recovery cylinders. EPA
anticipates that technicians and contractors would be able to use these
same channels for returning disposable cylinders to reclaimers or fire
suppressant recyclers. In some cases, there may be a direct connection
between technicians or contractors to reclaimers or fire suppression
recyclers and there is no intermediary step to returning a cylinder. In
this case, the only tracking step required would be by the reclaimer or
fire suppressant recycler, who would be registered in the tracking
system. EPA is proposing that when a reclaimer or fire suppressant
recycler receives a disposable cylinder with a remaining heel, they
would be required to scan the machine-readable tracking identifier that
was already affixed on the disposable cylinder and update the following
information to confirm receipt:
     The date that the disposable cylinder was received; and
     The name, address, contact person, email address, and
phone number of the person who sent the disposable cylinder.
    EPA is proposing that when the reclaimer or fire suppressant
recycler removes the remaining regulated substances from the disposable
cylinder, they would be required to enter in the tracking system the
following data elements:
     The date that the regulated substances were removed from
the disposable cylinder;
     Certification that all remaining regulated substances were
removed;
     The amount and the name of the recovered regulated
substance(s).
    In other cases, technicians or contractors may return cylinders to
a distributor or wholesaler who collects cylinders and then sends them
to a reclaimer or fire suppressant recycler. In this case, there would
be an additional tracking step required by the wholesaler or
distributor, who would already be registered in the tracking system.
EPA is proposing to require that the distributor or wholesaler
collecting the disposable cylinders scan the affixed machine-readable
tracking identifier when they receive it. The wholesaler or distributor
would be required to enter in the tracking system the following
information:
     The date that the disposable cylinder was received; and
     The name, address, contact person, email address, and
phone number of the person who sent the disposable cylinder.
    EPA is proposing to require that when a reclaimer or fire
suppressant recycler receives a disposable cylinder with a

remaining heel from a distributor or wholesaler, they would be required
to scan the machine-readable tracking identifier and update information
in the tracking system. The proposed requirements for reclaimers and
fire suppressant recyclers to update information in the tracking system
are the same as would be required if the reclaimer or fire suppressant
recycler were to receive the disposable cylinder directly from a
technician or contractor.
    EPA is proposing that the tracking of disposable cylinders to
reclaimers or fire suppressant recyclers would be required as of
January 1, 2026. This date aligns with the proposed requirement for
reclaimers and fire suppressant recyclers to track containers they
fill, sell, or distribute, or offer for sale or distribution with
regulated substances that could be used in the servicing, repair, or
installation of refrigerant-containing equipment or fire suppression
equipment. Thus, they would be registered in the tracking system
already and could scan and update information as they receive
disposable cylinders. This proposed date would also require
distributors and wholesalers who receive returned disposable cylinders
to be registered in the tracking system. For those distributors and
wholesalers that would be receiving disposable cylinders, EPA is
proposing that they would be required to register in the tracking
system the first time they would need to access the system to update
tracking information.
    EPA is proposing to include additional requirements for the
tracking of refillable cylinders that contain HFCs and that have been
used in the servicing, repair, or installation of refrigerant-
containing equipment or fire suppression equipment. By nature, EPA
expects that refillable cylinders would be involved with a return trip
after they are used and have only a heel remaining. As EPA understands,
fleets of refillable cylinders may be maintained by those who would
frequently fill and refill them. For example, some producers, blenders,
repackagers, and reclaimers may maintain a fleet of refillable
cylinders. In some cases, these entities may even operate a system to
track or otherwise maintain their own inventory of refillable
cylinders. Refillable cylinders differ from disposable in a number of
ways, notably as it relates to how the remaining regulated substances
are handled after the refillable cylinder has been used and a heel
remains. The remaining heel in a refillable cylinder can either be
recovered, or additional HFC could be added to the refillable cylinder
if it is the same chemical or blend. EPA understands this practice is
common especially for larger cylinders, such as ISO tanks and rail
cars.
    EPA is proposing certain requirements for tracking the return of
refillable cylinders that have been used in the servicing, repair, or
installation of refrigerant-containing equipment or fire suppression
equipment. Contractors or technicians who are using the refillable
cylinders for the servicing, repair, or installation of refrigerant-
containing equipment or fire suppression equipment could return
refillable cylinders to a distributor or wholesaler or they could
return refillable cylinders directly to a cylinder owner (e.g.,
reclaimer, blender). In either case, EPA is proposing similar tracking
requirements as those for the tracking of the return of a disposable
cylinder.
    EPA is proposing that reclaimers or fire suppressant recyclers
would be required to enter the following information in the tracking
system when they receive a refillable cylinder that contains HFCs and
that has been used in the servicing, repair, or installation of
refrigerant-containing equipment or fire suppression equipment:
     The date that the refillable cylinder was received;
     The name, address, contact person, email address, and
phone number of the person who sent the refillable cylinder.
    EPA is proposing that when the reclaimer or fire suppressant
recycler removes the remaining regulated substances from the refillable
cylinder, they would be required to enter in the tracking system the
following data elements:
     The date that the regulated substances were removed from
the refillable cylinder;
     Certification that all remaining regulated substances were
removed; and
     The amount and name of the recovered regulated
substance(s).
    In the case that a refillable cylinder is first sent to a
distributor or wholesaler, EPA is proposing that the wholesaler or
distributor enter the following information to the tracking system upon
receipt of the refillable cylinder:
     The date that the refillable cylinder was received; and
     The name, address, contact person, email address, and
phone number of the person who sent the refillable cylinder.
    In the case where a refillable cylinder is sent to a person, other
than an EPA-certified reclaimer or a fire suppressant recycler, capable
of refilling it with additional HFCs or blend containing HFCs, the
person filling the container would be required to enter the following
data elements in the tracking system upon receipt of the refillable
cylinder:
     The date that the refillable cylinder was received; and
     The name, address, contact person, email address, and
phone number of the person who sent the refillable cylinder.
    EPA is proposing that when the person, other than an EPA-certified
reclaimer or a fire suppressant recycler, who received the refillable
cylinder removes any remaining regulated substances from the refillable
cylinder or refills the refillable cylinder, that person must scan the
machine-readable tracking identifier and update the following
information in the tracking system:
     The date the remaining regulated substance was removed or
the date the refillable was refilled; and
     The amount and name of the remaining regulated
substance(s) removed from the refillable cylinder or the amount and
name of the regulated substance(s) remaining in the refillable cylinder
before it is refilled.
    EPA is proposing similar timing requirements for the tracking of
refillable cylinders as they are returned to the cylinder owners (e.g.,
producers, reclaimers, fire suppressant recyclers). The tracking of
refillable cylinders as they are returned to cylinder owners would be
required as of January 1, 2026. Again, this date aligns with the
proposed requirement for reclaimers and fire suppressant recyclers to
track of containers they fill, sell, or distribute, or offered for sale
or distribution with regulated substances that could be used in the
servicing, repair, or installation of refrigerant-containing equipment
or fire suppression equipment. Any producers who would be involved with
tracking steps associated with the return of refillable cylinders would
have already had experience in the tracking system for a full year. For
those distributors and wholesalers that would be receiving refillable
cylinders, EPA is proposing that they would be required to register in
the tracking system the first time they would need to access the system
to update tracking information.
    EPA is considering requirements associated with the tracking of
cylinders that are used for the purpose of recovering regulated
substances (i.e., recovery cylinders) from refrigerant-containing
equipment or fire suppression equipment. As described above, these
recovery cylinders are only intended for the recovery of refrigerants
or fire suppressants from equipment for the intention of sending the
material to a reclaimer or fire suppressant recycler. As noted, fleets
of recovery cylinders may be owned by reclaimers or

wholesalers or distributors who maintain them using a deposit-based
system for the return of the cylinders. Contractors and technicians
would pay a deposit and obtain the recovery cylinders from these
entities and have the deposit returned when the cylinder is returned.
In this case, EPA is considering and requesting comment on whether to
establish tracking requirements for the entities that maintain the
fleet of recovery cylinders. Such requirements would allow EPA the
ability to track the amount of material that is recovered from
equipment and how that material moves in the supply chain until it
reaches a reclaimer or fire suppressant recycler. EPA is also
interested in the tracking of recovery cylinders as it would provide
additional information on the HFCs that are recovered from equipment
that is being serviced, repaired, or disposed of, and their movement in
the market and supply chain, and on practices, processes, or activities
associated with the servicing, repair, or disposal of equipment. EPA is
requesting comment on these topics, as well as additional information
on how recovery cylinders are maintained in practice. For example, EPA
is seeking information regarding whether contractors or technicians are
owners of recovery cylinders and how they return them to reclaimers or
fire suppressant recyclers.
    EPA is seeking comment on all aspects of this proposal.
Specifically, EPA is seeking comment on the timing for requirements to
track containers (both disposable and refillable) that contain HFCs and
that have been used in the servicing, repair, or installation of
equipment. EPA is also seeking additional information on the overall
movement of cylinders (disposable, refillable, or recovery) in the
supply chain as they are returned to an entity to recover the regulated
substances (or refill the container, if it is a refillable cylinder).
4. Small Cans of Refrigerant
    Small cans of refrigerant, that typically contain 2 pounds or less
of regulated substances, are commonly used by individuals to service
their own MVACs. This do-it-yourself (DIY) servicing practice is unique
to the MVAC subsector within the RACHP sector. In the 2016 CAA section
608 Rule (81 FR 82272, November 18, 2016), EPA finalized an exemption
from the sales restriction at 40 CFR 82.154(c) for small cans of MVAC
refrigerant with self-sealing valves. EPA is not proposing to include
requirements for small cans of refrigerant with self-sealing valves
(i.e., those that qualify for exemption from the sales restriction
under 40 CFR 82.154(c)(ix)) to be sent to a reclaimer after use or to
include such small cans in the proposed container tracking
requirements. As noted, they are typically used only by DIYers in the
servicing of their own MVACs and contain no more than 2 pounds of
regulated substances. Another distinguishing factor is the distribution
chain for small cans, which are commonly sold directly to DIYers by
retailers. Accordingly, EPA concludes it is not necessary to require
that small cans of refrigerant (i.e., those meeting the 608
requirements) be sent to a reclaimer after use or to include small cans
in the proposed container tracking system to serve the regulatory
goals, as described throughout section IV.F. above.
    EPA welcomes comment on all aspects of this proposal. In
particular, EPA seeks comments on its proposal to not include
requirements for small cans of refrigerant to be returned to a
reclaimer after use and to not include them in the proposed container
tracking system in this rulemaking. In particular, EPA is interested in
comments related to this provision as it relates to the regulatory
purpose of maximizing reclaiming of regulated substances and also
reducing the potential emissions of regulated substances.

G. How is EPA proposing to establish RCRA refrigerant recycling
alternative standards?

1. Nomenclature Used in This Section
    This section uses the term ``ignitable spent refrigerant'' to
describe the refrigerants that are potentially subject to RCRA
hazardous waste regulation under the current rules, and that would
instead be subject to the proposed RCRA alternative standards for
refrigerants when recycled for reuse, if these standards are finalized.
``Ignitability'' is one of the RCRA hazardous waste characteristics and
is used to identify waste that may pose a risk to human health and the
environment due to their potential to cause fires if improperly
managed.\117\ The characteristic of ignitability is defined in 40 CFR
261.21. As discussed in more detail below in this section,
``ignitable'' is similar, but not identical, to the term ``flammable''
as used in ASHRAE Standard 34-2022. ``Spent'' is used in the same
context as ``spent material,'' which is defined in 40 CFR 261.1(c)(1)
as ``any material that has been used and as a result of contamination
can no longer serve the purpose for which it was produced without
processing.'' Thus, an ``ignitable spent refrigerant'' is a used
refrigerant that cannot be reused without first being cleaned, and that
exhibits the hazardous characteristic of ignitability per 40 CFR
261.21.
---------------------------------------------------------------------------

    \117\ EPA 1980, Background Document for the Hazardous Waste
Characteristic of Ignitability, May 2, 1980, p.7 https://www.epa.gov/hw/background-document-hazardous-waste-characteristic-ignitability.
---------------------------------------------------------------------------

    In addition, the terms ``reclaim'' and ``recycle'' have different
regulatory purposes and definitions under RCRA than under the CAA and
the AIM Act. Under RCRA, a material is ``reclaimed'' if it is processed
to recover a usable product, or if it is regenerated. Examples are
recovery of lead values from spent batteries and regeneration of spent
solvents (See 40 CFR 261.1(c)(4)). Reclamation is one of the four types
of ``recycling'' identified in 40 CFR 261.2(c) that can involve
management of a solid waste under RCRA. Materials that are solid waste
under RCRA are potentially subject to RCRA hazardous waste
requirements.
    In contrast, under title VI of the CAA and its implementing
regulations, ``reclaim'' is a more precise term, requiring the
reclaimed refrigerant to meet regulatory specifications based on AHRI
Standard 700-2016, while ``recycle'' means to extract refrigerant from
an appliance and clean it for reuse in equipment of the same owner
without meeting all of the CAA requirements for reclamation. See those
definitions in 40 CFR 82.152. Similarly, under the AIM Act, ``reclaim;
reclamation'' are defined in subsection (b)(9) of the Act, and that
definition refers to the purity standards under AHRI Standard 700-2016
(or an appropriate successor standard adopted by the Administrator) and
the verification of purity using, at a minimum, the analytical
methodology described in that standard. ``Recycle'' is not defined in
the AIM Act.
    To avoid confusion when discussing what regulatory requirements
would apply to ignitable spent refrigerant, for the purposes of the
proposed RCRA alternative standards, EPA is using the term ``recycle
for reuse'' as defined at 40 CFR 266.601 to mean to process an
ignitable spent refrigerant to remove contamination and prepare it to
be used again. This umbrella term includes reclaiming ignitable spent
refrigerants as defined in the context of the RCRA regulations at 40
CFR 261.1(c), and either reclaiming or recycling refrigerants as
defined in 40 CFR 82.152. ``Recycle for reuse'' would not include
recycling that involves burning for energy recovery or use in a manner
constituting disposal (use in or on the land) as defined in 40 CFR
261.2(c), or

sham recycling as defined in 40 CFR 261.2(g).
2. Background
    On February 13, 1991, EPA promulgated an interim final rule
excluding spent chlorofluorocarbon (CFC) refrigerants from the
definition of hazardous waste under RCRA when recycled for reuse (56 FR
5910). EPA was concerned that subjecting used CFC refrigerants to RCRA
hazardous waste regulations would result in increased venting of these
refrigerants, resulting in increased levels of ODS in the stratosphere.
As described above in section III.C., EPA promulgated a series of rules
implementing provisions under CAA title VI to phase out class I and
class II ODS, including CFCs used as refrigerants, and establishing
standards applicable to the use, disposal, and recycling of ODS
refrigerants and their substitutes.
    Some of these acceptable substitutes are flammable and likely to
exhibit the hazardous waste characteristic of ignitability found in 40
CFR 261.21.\118\ As described in section IV.C.4., ASHRAE Standard 34-
2022 assigns a safety group classification for each refrigerant which
consists of two alphanumeric characters (e.g., A2 or B1). The capital
letter indicates the toxicity class (``A'' for lower toxicity) and the
numeral denotes the flammability. ASHRAE recognizes three
classifications and one subclass for refrigerant flammability. The
three main flammability classifications are Class 1, for refrigerants
that do not propagate a flame when tested as per the ASHRAE 34
standard, ``Designation and Safety Classification of Refrigerants;''
Class 2, for refrigerants of lower flammability; and Class 3, for
highly flammable refrigerants, such as the hydrocarbon refrigerants.
ASHRAE recently updated the safety classification matrix to include a
new flammability subclass 2L, for flammability Class 2 refrigerants
that burn very slowly.\119\ Since 2010, EPA's SNAP program has listed a
number of flammable substitute refrigerants that have ASHRAE safety
classifications of A3 (higher flammability, lower toxicity refrigerants
such as propane or isobutane) or A2L (lower flammability, lower
toxicity refrigerants such as HFC-32 or HFO-1234yf).
---------------------------------------------------------------------------

    \118\ ``Flammability'' as identified by the ASHRAE standards and
``ignitability'' as identified by the RCRA 40 CFR 261.21 standard
are both intended to capture the potential for a substance to cause
fires. However, since the methodology used under these two systems
differs, EPA is using ``flammability'' when describing the ASHRAE
standard and ``ignitability'' when describing wastes that are
regulated under RCRA when they meet the ignitable characteristic in
Sec.  261.21 and therefore are subject to hazardous waste management
requirements. In general, a flammable substance would be presumed to
be also ignitable under RCRA unless testing were to demonstrate
otherwise.
    \119\ ASHRAE Fact Sheet Update on New Refrigerants Designations
and Safety Classification November 2022. https://www.ashrae.org/file%20library/technical%20resources/bookstore/factsheet_ashrae_english_november2022.pdf.
---------------------------------------------------------------------------

    The standard for flammability under ASHRAE 34 does not correspond
precisely with the RCRA standards for ignitability found in 40 CFR
261.21, but in general, refrigerants with a flammability Class of 2 or
3 are expected to be ignitable under RCRA. Spent refrigerants with a
flammability class of 2L may or may not be ignitable hazardous waste,
depending on the specific chemical(s) used in the refrigerant and
contamination of the refrigerant during use. Note that even
refrigerants that do not exhibit the characteristic of ignitability as
a virgin material could become ignitable with use, especially if
contaminated with oil or other lubricants, posing a risk of fire if
mismanaged.\120\ Similarly, the flash point of a refrigerant that is a
blend of two or more chemicals can change if there is a leak during
operation or during recovery and storage, when the refrigerant from
multiple appliances is combined, or if the recovery process is
incomplete, potentially changing the hazardous waste characteristic of
the spent refrigerant when collected.
---------------------------------------------------------------------------

    \120\ S N Kopylov et al 2019 IOP Conf. Ser.: Earth Environ. Sci.
272 022064; https://iopscience.iop.org/article/10.1088/1755-1315/272/2/022064.
---------------------------------------------------------------------------

    However, these ignitable spent refrigerant substitutes do not fall
under the 40 CFR 261.4(b)(12) RCRA exclusion for refrigerants, since
that exclusion is limited to CFC refrigerants.\121\ The applicability
of RCRA to flammable refrigerants is discussed in the 2016 SNAP final
rule. (81 FR at 86799-86800, December 1, 2016). Consistent with that
discussion, EPA considers incidental releases of spent refrigerant that
occur during the maintenance, service, and repair of appliances subject
to CAA section 608 (which would include venting from appliances of
refrigerants that are exempt from the venting prohibition under 40 CFR
82.154(a)), and releases resulting from the disposal of household
appliances both generally not to be considered disposal of a hazardous
waste under RCRA. However, ignitable spent refrigerant from commercial
and industrial appliances (i.e., non-household appliances) would be
classified as hazardous waste and would need to be managed under the
applicable RCRA regulations (40 CFR parts 260 through 270) when
recovered (i.e., removed from an appliance and stored in an external
container) or disposed of (e.g., vented from a container after
recovery). These requirements would include generator notification and
on-site accumulation standards, emergency preparedness and other
requirements, hazardous waste manifest and transportation requirements
for the ignitable spent refrigerant, and RCRA permit requirements for
refrigerant recyclers that store the refrigerant prior to recycling.
---------------------------------------------------------------------------

    \121\ EPA is not reopening the original CFC refrigerant
recycling exclusion and is not requesting comment on 40 CFR
261.4(b)(12). Any comments received on the CFC refrigerant recycling
exclusion will be considered out of scope of this rulemaking.
---------------------------------------------------------------------------

3. Proposed Alternative RCRA Standards for Spent Ignitable Refrigerants
Being Recycled for Reuse
    Similar to EPA's concerns expressed in the 1991 rulemaking
establishing the CFC refrigerant recycling exclusion, EPA is concerned
that applying RCRA hazardous waste requirements to the substitute
refrigerants that exhibit the hazardous characteristic of ignitibility
would discourage recycling and could result in an increase in releases
of ignitable refrigerants, including HFC ignitable refrigerants,
contrary to the goals of RCRA and to one of the purposes of regulations
under subsection (h)(1) of the AIM Act, which is to minimize releases
of HFCs from equipment. Moreover, inadvertently incentivizing releases
of refrigerants would be contrary to RCRA section 3004(n), which
requires EPA to control air emissions from hazardous waste management,
as may be necessary to protect human health and the environment.
Finally, the current requirements for recovery of refrigerants under
the CAA section 608 rules help ensure that the ignitable spent
refrigerants are legitimately recycled for reuse, and also address the
flammability risks posed by ignitable spent refrigerants.
    For the reasons stated above, EPA is proposing to add standards
under 40 CFR part 266, subpart Q applicable to certain ignitable spent
refrigerants that are recycled for reuse that would apply instead of
the full RCRA Subtitle C hazardous waste requirements. The purpose of
these standards is to help reduce emissions of ignitable spent
refrigerants to the lowest achievable level by maximizing the recapture
and safe recycling of such refrigerants during the maintenance,
service, repair, and disposal of appliances.

a. Scope of the Proposed RCRA Alternative Standards
    EPA is proposing that the 40 CFR part 266, subpart Q RCRA
alternative standards would apply to HFCs and substitutes that do not
belong to flammability Class 3. EPA is proposing to limit the
alternative standards to lower flammability substitutes (Class 1, 2 and
2L) because of the lower risk of fire from the collection and recycling
for reuse of these refrigerants, and the greater market value of these
refrigerants, which supports the conclusion that these spent
refrigerants will be recycled for reuse and not stockpiled, mismanaged,
or abandoned. EPA has found that a low market value for a reclaimed
product can increase the likelihood of mismanagement and abandonment
occurring during hazardous waste recycling activities.\122\
---------------------------------------------------------------------------

    \122\ U.S. EPA A Study of the Potential Effects of Market Forces
on the Management of Hazardous Secondary Materials Intended for
Recycling, November 2006, available at https://www.regulations.gov/document/EPA-1HQ-RCRA-2002-0031-0358.
---------------------------------------------------------------------------

    In addition to this proposal, EPA is also considering the option of
expanding the applicability of the RCRA alternative standards to some
or all A3 refrigerants. Broadening the applicability of the exemption
could encourage the development of markets for these other recycled
refrigerants, even if current markets are limited, provided that they
can be safely recycled for reuse.
    EPA requests comment on the scope of the RCRA alternative
standards, including the option of expanding the applicability of the
RCRA alternative standards to Class 3 refrigerants. In addition, EPA
requests comment on which additional refrigerants should qualify for
the RCRA alternative standards in the final rule, if EPA determines
such an expansion is appropriate. EPA requests information on the
safety and economic feasibility of recycling for reuse Class 2L, 2, and
3 refrigerants both under current and projected future market
conditions.
b. Proposed Requirements for the RCRA Alternative Standards
    The specific standards EPA is proposing for ignitable spent
refrigerant being recycled for reuse either on-site for further use in
equipment of the same owner, or by the owner of the recovery equipment
in compliance with MVAC standards in 40 CFR part 82, subpart B, are (1)
the ignitable spent refrigerants that are recovered (i.e., removed from
an appliance and stored in an external container) and/or recycled for
reuse using equipment that is certified for that type of refrigerant
under 40 CFR 82.36 or 40 CFR 82.158; and (2) the ignitable spent
refrigerants are not speculatively accumulated as defined in 40 CFR
261.1(c).
    The specific standards that EPA is proposing for facilities
receiving refrigerant from off-site to be recycled for reuse are (1)
the reclaimer must maintain certification by EPA under 40 CFR 82.164;
(2) the facility must meet the emergency preparedness and response
requirements of 40 CFR part 261 subpart M, and (3) the ignitable spent
refrigerants must not be speculatively accumulated as defined in 40 CFR
261.1(c). EPA is proposing these requirements be included as part of
the RCRA alternative standard in order to ensure that the ignitable
spent refrigerant is legitimately recycled for reuse in a way that is
protective of human health and the environment.
    The proposed requirement that the recovery and/or recycling
equipment be certified for that type of refrigerant and appliance under
40 CFR 82.36 (for MVAC systems) or 40 CFR 82.158 (for on-site
recycling) would specifically address the ignitability hazard during
refrigerant recovery and recycling for reuse at MVAC recycling
operations in compliance with 40 part 82 subpart B, or for recycling
on-site for reuse in appliances by the same owner. In particular,
appendix B4 to subpart F of 40 CFR part 82--Performance and Safety of
Flammable Refrigerant Recovery and/or Recycling Equipment requires all
recovery and/or recycling equipment to be tested to meet standards for
the test apparatus, test gas mixtures, sampling procedures, analytical
techniques, and equipment construction that will be used to determine
the performance and safety of refrigerant recovery.
    The proposed requirement that the spent refrigerant regulated under
the new alternative standards not be speculatively accumulated per 40
CFR 261.1(c) would help prevent over-accumulation, mismanagement, and
abandonment of the spent refrigerant. Restrictions on speculative
accumulation have been an important element of the RCRA hazardous waste
recycling regulations since they were originally promulgated on January
4, 1985 (50 FR 634-637). According to this regulatory provision,
hazardous secondary materials as defined in 40 CFR 260.10 (which would
include ignitable spent refrigerants) are accumulated speculatively if
the person accumulating them cannot demonstrate that the material is
potentially recyclable. Further, the person accumulating the hazardous
secondary material must demonstrate that during a calendar year
(beginning January 1) the amount of such material that is recycled or
transferred to a different site for recycling is at least 75% by weight
or volume of the amount of the hazardous secondary material present at
the beginning of the calendar year (January 1). Hazardous secondary
materials to be recycled must be placed in a storage unit with a label
indicating the first date that the material began to be accumulated, or
the accumulation period must be documented through an inventory log or
other appropriate method. Otherwise, the hazardous secondary material
is considered to be speculatively accumulated and not eligible for the
alternative standards in 40 CFR part 266, subpart Q.
    The requirement that facilities receiving refrigerant from off-site
to be recycled for reuse maintain certification by EPA under 40 CFR
82.164 helps ensure that the recycler is experienced in proper
refrigerant reclamation techniques and will manage the spent
refrigerant in a manner that minimizes releases, with an explicit limit
under the CAA section 608 rules of no more than 1.5 percent of the
refrigerant released during the reclamation process (see 40 CFR
82.164(a)(3)). The certification requirement also helps with the
transparency of the RCRA alternative standard since the list of EPA-
certified refrigerant reclaimers is publicly available on EPA's
website.\123\ In addition, these facilities certified reclaimers under
CAA section 608 and must follow recordkeeping and reporting
requirements, per 40 CFR 82.164(d) including (1) maintaining records of
the names and addresses of persons sending them material for
reclamation and the quantity of the material (the combined mass of
refrigerant and contaminants) sent to them for reclamation, and (2)
reporting annually the quantity of material sent to them for
reclamation by refrigerant type, the mass of refrigerant reclaimed by
refrigerant type, and the mass of waste products. Finally, EPA-
certified refrigerant reclaimers must verify that each batch of
reclaimed refrigerant meets the specifications in the regulations (40
CFR 82.164(a)(2)), which helps ensure that the reclamation process is
legitimate recycling under the RCRA regulations. EPA notes that
reclaimed refrigerant that does not meet the required specifications
would be considered an off-specification

commercial chemical product under 40 CFR 261.2(c) and subject to all
applicable RCRA regulatory requirements. EPA further notes that persons
who reclaim HFCs that are listed as regulated substances under the AIM
Act must meet recordkeeping and reporting requirements as set forth in
40 CFR 84.31(a) and 84.31(i).
---------------------------------------------------------------------------

    \123\ EPA-Certified Refrigerant Reclaimers https://www.epa.gov/section608/epa-certified-refrigerant-reclaimers. Retrieved December
27, 2022.
---------------------------------------------------------------------------

    Finally, including the requirement that facilities receiving
refrigerant to be recycled for reuse meet the RCRA standards under 40
CFR part 261, subpart M, Emergency Preparedness and Response for
Management of Excluded Hazardous Secondary Materials, would also
address risks posed specifically for ignitable spent refrigerants,
which are a subset of hazardous secondary materials.\124\ EPA is
proposing that facilities receiving ignitable spent refrigerants from
other parties for recycling for reuse be subject to this additional
emergency preparedness requirement because these third-party recyclers
would be receiving ignitable spent refrigerant from multiple sources,
and are likely to store greater volumes for longer time periods than
companies that recycle for reuse onsite or as part of an MVAC
refrigerant recovery and recycling system in compliance with 40 CFR
part 82, subpart B. Proposed requirements include maintaining
appropriate emergency equipment on site, having access to alarm
systems, maintaining needed aisle space, making arrangements with local
emergency authorities, and having a designated emergency coordinator
who is responsible for responding in the event of an emergency. This
requirement will help protect human health and the environment in the
event of a fire or other emergency at the recycler.
---------------------------------------------------------------------------

    \124\ Per 40 CFR 260.10, ``hazardous secondary materials'' means
a secondary material (e.g., spent material, by-product, or sludge)
that, when discarded, would be identified as hazardous waste under
40 CFR part 261. Spent ignitable refrigerant meets this definition.
---------------------------------------------------------------------------

    EPA is also specifically proposing that all recycling facilities
receiving ignitable spent refrigerant from off-site meet the emergency
preparedness and response requirements under 40 CFR 261.410 and 40 CFR
261.420, which include general personnel training requirements for
facilities (40 CFR 261.420(g)). While these provisions currently only
apply to facilities that accumulate more than 6,000 kg of hazardous
secondary materials at a time, given the ignitability risk posed by the
spent refrigerants at relatively small volumes, EPA's view is that
these provisions are the most appropriate for all facilities
accumulating ignitable spent refrigerants. EPA requests comment on
these emergency preparedness and response requirements for reclaimers
receiving ignitable spent refrigerants, including whether more specific
training requirements for managing ignitable spent refrigerants should
be included in the alternative RCRA standards, and if so, what aspects
of refrigerant management those additional training requirements should
address.
4. Very Small Quantity Generator Wastes
    Very Small Quantity Generators (VSQGs) generate less than 100 kg of
hazardous waste per month and one kilogram or less per month of acutely
hazardous waste and are subject to a limited set of federal RCRA
Subtitle C hazardous waste regulations, provided that they comply with
the conditions set forth in 40 CFR 262.14. Among those conditions is
that the VSQG must either treat and dispose of its hazardous waste in
an on-site facility or ensure delivery to an off-site facility listed
in 40 CFR 262.14(a)(5). Included in this list is a facility that: (1)
beneficially uses or reuses, or legitimately recycles or reclaims its
waste; or (2) treats its waste prior to beneficial use or reuse, or
legitimate recycling or reclamation.
    For ignitable spent refrigerant regulated under the new proposed
RCRA alternative standard, EPA is proposing to make a conforming change
to 40 CFR 262.14(a)(5) to require that these refrigerants be sent to a
facility that meets the requirements of 40 CFR part 266, subpart Q if
sent off-site for recycling. EPA notes that while this change is more
stringent than the current RCRA regulations, VSQGs would experience no
additional burden since under the CAA section 608 rules, all reclaimers
receiving used ODS refrigerants or non-exempt substitute refrigerants
from off-site for reclamation must meet EPA's certification
requirements in 40 CFR 82.164. This proposed revision would not affect
refrigerants not subject to the new RCRA alternative standard (e.g.,
ignitable spent refrigerants that are not sent off-site to be recycled
for reuse).
5. RCRA Regulation of Exports and Imports of Ignitable Spent
Refrigerants
    The proposed RCRA alternative standard is limited to ignitable
spent refrigerants that are recycled for reuse in the United States,
and it requires that off-site recycling for reuse be performed at an
EPA-certified reclaimer per 40 CFR 82.164. Therefore, ignitable spent
refrigerants intended for export would not qualify for the proposed
RCRA alternative standard, and would instead be regulated under the
full RCRA Subtitle C requirements, including the relevant hazardous
waste export requirements in 40 CFR part 262, subpart H.
    Imports of ignitable spent refrigerants would be allowed under the
alternative RCRA standards, as long as the imported refrigerants meet
the requirements of the proposed RCRA alternative standard, including
being recycled for reuse at an EPA-certified reclaimer per 40 CFR
82.164. This proposal does not affect or reopen any of the requirements
for regulated substances established under the AIM Act that are
codified at 40 CFR part 84, subpart A. EPA requests comment on the
regulation of exports and imports of ignitable spent refrigerants under
RCRA, including whether to add export and/or import requirements to the
RCRA alternative standard under 40 CFR part 266, subpart Q.
6. Applicability of Proposed Alternative Standard in RCRA-Authorized
States
    Under section 3006 of RCRA, EPA may authorize states to administer
the RCRA Subtitle C hazardous waste program. Following authorization,
the authorized state program operates in lieu of the federal
regulations. EPA retains authority to enforce the authorized state RCRA
Subtitle C program, although authorized states have primary enforcement
authority. EPA also retains its authority under RCRA sections 3007,
3008, 3013, and 7003. The standards and requirements for state
authorization are found at 40 CFR part 271.
    Prior to enactment of the Hazardous and Solid Waste Amendments of
1984 (HSWA), a state with final RCRA authorization administered its
hazardous waste program entirely in lieu of EPA administering the
federal program in that state. EPA did not issue permits for any
facilities in that state, since the state was now authorized to issue
RCRA permits. When new, more stringent federal requirements were
promulgated, the state was obligated to enact equivalent authorities
within specified time frames. However, the new requirements did not
take effect in an authorized state until the state adopted the
equivalent state requirements.
    In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which
was added by HSWA, new requirements and prohibitions imposed under HSWA
authority take effect in authorized states at the same time that they
take effect in unauthorized states. While states must still adopt HSWA-
related provisions as state law to retain authorization, EPA implements
the HSWA provisions in

authorized states, including the issuance of any permits pertaining to
HSWA requirements, until the state is granted authorization to do so.
    Authorized states are required to modify their programs only when
EPA promulgates federal requirements that are more stringent or broader
in scope than existing federal requirements. RCRA section 3009 allows
the states to impose standards more stringent than those in the federal
program (see 40 CFR 271.1). Therefore, authorized states may, but are
not required to, adopt federal regulations, both HSWA and non-HSWA,
that are considered less stringent than previous federal regulations.
7. Effect on State Authorization
    This action proposes to add a new subpart Q to 40 CFR part 266
Standards for the Management of Specific Hazardous Wastes and Specific
Types of Hazardous Waste Management Facilities, and it is being
proposed under the authority of HSWA due to its purpose of reducing air
emissions from the management of ignitable spent refrigerants, in
accordance with EPA's mandate to control air emissions from hazardous
waste management, as may be necessary to protect human health and the
environment, per RCRA section 3004(n), which was promulgated under
HSWA. In addition, the changes to the Very Small Quantity Generator
Regulations in 40 CFR 262.14 would be promulgated under RCRA section
3001(d)(4), also a HSWA provision.
    While the proposed exclusion reduces the applicability of many RCRA
requirements to the recycling of ignitable spent refrigerant, the
requirement that refrigerant be recovered and/or recycled for reuse
using equipment that is certified for that type of refrigerant and
appliance under 40 CFR 82.158, and that the recovered refrigerant be
recycled for reuse at a facility certified by EPA under 40 CFR 82.164
would be more stringent than the current RCRA requirements applicable
to recycling of ignitable spent refrigerant. In addition, the revisions
to the VSQG regulations in 40 CFR 262.14 are more stringent than the
current standard. Thus, the proposed amendment would be a HSWA rule
that is more stringent than the current RCRA program and, if finalized,
would be applicable on the effective date of the final rule in all
states.
    In addition to the proposed RCRA alternative standards for Class 1,
2 and 2L, EPA is also considering the option of expanding the
applicability of the RCRA alternative standards to some or all A3
refrigerants. Broadening the applicability of the exemption could
encourage the development of markets for these other recycled
refrigerants, even if current markets are limited, provided that they
can be safely recycled for reuse. In addition, EPA requests comment on
which additional refrigerants should qualify for the RCRA alternative
standards in the final rule, if EPA determines such an expansion is
appropriate. EPA requests information on the safety and economic
feasibility of recycling for reuse Class 2L, 2, and 3 refrigerants both
under current and projected future market conditions.

H. MVAC Servicing and Reprocessed Material

    EPA is not proposing requirements focused on implementing
subsection (h)(2)(B) for MVAC servicing facilities that currently
reclaim or recycle recovered MVAC refrigerant. EPA understands that
under current industry practices, a variety of things might occur once
refrigerant has been recovered from an MVAC system. For example, in
some situations, MVAC servicing facilities recover refrigerant from the
MVAC, recycle it consistent with EPA's regulations under CAA section
609 and return the recycled refrigerant to the same MVAC for continued
use by the same owner.\125\ In other circumstances, however, EPA
understands that the recovered MVAC refrigerant is recycled and used in
servicing a different MVAC system with a different owner (e.g., to
charge or recharge such a system), thereby in effect selling or
transferring the refrigerant to a new owner. See 40 CFR 82.34(d)(2).
Additionally, EPA understands that there are circumstances where
refrigerant recovered from MVAC systems is reclaimed before it is
reused or sold or transferred to a new owner.
---------------------------------------------------------------------------

    \125\ Another example of an instance where there is no change in
ownership is the off-site servicing and recharge of MVAC systems for
a fleet of trucks that are owned by the same company.
---------------------------------------------------------------------------

    The servicing and repair of MVAC systems with HFCs and HFC
substitutes (e.g., HFO-1234yf and R-744 (CO2)) have long
been subject to certain requirements that are separate from those that
apply for the servicing and repair of stationary appliances.
Regulations under CAA section 609 require that technicians use
equipment approved pursuant to the standards at 40 CFR 82.36 to service
and repair MVAC systems. Under those existing regulations, recovered
refrigerant can either be recycled on-site or off-site using approved
equipment designed to both recover and recycle refrigerant certified to
meet SAE J2099.\126\ SAE J2099 establishes the minimum level of
refrigerant purity (e.g., 98% for HFO-1234yf) required for the
certification of on-site recovery and recycling machines per SAE 2843
and SAE J2788. Refrigerant from reclamation facilities that is used for
the purpose of recharging MVACs must be at or above the standard of
purity (i.e., 99.5%) level defined in AHRI Standard 700, and EPA
understands that such reclamation typically occurs off-site. See 40 CFR
82.32(e)(2).
---------------------------------------------------------------------------

    \126\ SAE International, 2012. SAE J2099: Standard of Purity for
Recycled R-134a (HFC-134a) and R-1234yf (HFO-1234yf) for Use in
Mobile Air-conditioning Systems.
---------------------------------------------------------------------------

    Due to the longstanding practice of on-site recycling of MVAC
refrigerant, some industry stakeholders \127\ question the need to
reclaim recovered MVAC refrigerant to meet the purity described in AHRI
Standard 700-2016 as specified in the definition of the terms
``reclaim'' and ``reclamation'' in subsection (b)(9) of the Act. They
note that equipment certified to meet SAE J2099 are rated to clean and
separate material in contaminated refrigerant to a 98% purity level,
which provides the same level of performance and durability as virgin
refrigerant for purposes of use in MVACs. They also pointed out the
ambiguity in the phrase ``(or an appropriate successor standard adopted
by the Administrator)'' in definition of ``reclaim'' and
``reclamation'' in the AIM Act. While there may be a variety of
situations that could lead to the adoption of a successor standard by
the Administrator within the meaning of subsection (b)(9), in EPA's
view one such circumstance would be if AHRI published a subsequent
standard or addendum regarding the reprocessing of a recovered
regulated substance to a specified purity standard and the analytical
methodology to verify the purity of that regulated substance, and that
standard were adopted by the Administrator as a successor standard.
---------------------------------------------------------------------------

    \127\ March 6, 2023, EPA meeting with Mobile Air Climate Systems
(MACS) Association and SAE International. Meeting materials
available in the docket (EPA-HQ-OAR-2022-0606) for this proposed
rulemaking at https://www.regulations.gov.
---------------------------------------------------------------------------

    EPA is aware that AHRI is in consultations with SAE International,
the Mobile Air Climate Systems (MACS), and other industry stakeholders
to develop a standard (or update an existing standard) that may be more
appropriate for MVAC servicing than the AHRI Standard 700-2016.\128\ If

such a standard is finalized, EPA intends to review it, and any
supporting information, and consider what implications it might have
for potential approaches that the Agency might consider in future
rulemakings to implement subsection (h)(2)(B) for MVAC systems.
Additionally, the Agency could consider establishing its own purity
standard and analytical methodology for verification of the purity of
recovered regulated substances, as well as specifying minimum equipment
requirements for MVAC systems under subsection (h). Among other things,
such a standard could be based on consideration of input from
stakeholders and consensus standards bodies. EPA could consider
adopting any such standard in a future rulemaking. In light of the time
needed to develop such standards (whether developed by EPA or standard
setting organizations) and for EPA to consider whether they are
appropriate for EPA to adopt as successor standards in the context of
subsection (h), as well as the implications that such standards might
have on the regulations that EPA might propose to implement subsection
(h)(2)(B) for MVAC systems, EPA is not proposing such regulations in
this NPRM. Instead, EPA intends to issue proposed regulations for this
sector at a later date, once it has additional clarity on the
development of such a successor standard and its likely content.
---------------------------------------------------------------------------

    \128\ Letter to EPA from AHRI, Alliance for Automotive
Innovation, Alliance for Responsible Atmospheric Policy, and MACS
dated June 9, 2023. Available in the docket (EPA-HQ-OAR-2022-0606)
for this proposed rulemaking at https://www.regulations.gov.
---------------------------------------------------------------------------

V. How is EPA proposing to treat data reported under this rule?

    Consistent with EPA's commitment to transparency in program
implementation, as well as to proactively encourage compliance, support
enforcement of program requirements and enable third-party engagement
to complement EPA's enforcement efforts, EPA is proposing several ways
it intends to release data that would be collected if this rule were
finalized as proposed.
    EPA has reviewed the data elements that are proposed to be reported
under this rule. Based on that review, EPA is proposing certain
categorical emissions data and confidentiality determinations in
advance through this notice and comment rulemaking for individual
reported data elements that EPA would be collecting through this
rulemaking. This proposal identifies certain information categories
that must be submitted to EPA that will be subject to disclosure to the
public without further notice because the information has been
determined to be either ``emission data'' under 40 CFR 2.301(a), or the
Agency has found that the information does not meet the standard for
confidential treatment under Exemption 4 of the Freedom of Information
Act (FOIA). EPA is also proposing to identify certain other categories
of information that may be entitled to confidential treatment. For
information EPA is not determining in this rulemaking to be emission
data or not otherwise entitled to confidential treatment, EPA will
apply the 40 CFR part 2 process for establishing case-by-case
confidentiality determinations. As explained further in the following
discussion, the emission data and confidentiality determinations in
this proposed action are intended to increase the efficiency with which
the Agency responds to FOIA requests and to provide consistency in the
treatment of the same or similar information. Establishing these
determinations through this rulemaking will provide predictability for
both information requesters and submitters. The emission data and
confidentiality determinations in this proposed rule will also increase
transparency, as well as supporting compliance with, and enforcement
of, the program's requirements.

A. Background on Determinations of Whether Information Is Entitled to
Treatment as Confidential Information

1. Confidential Treatment of Reported Information
    Regulated entities that must submit information to EPA frequently
claim that some or all of that information is entitled to confidential
treatment and therefore exempt from disclosure under Exemption 4 of the
FOIA.\129\ Exemption 4 exempts from disclosure ``trade secrets and
commercial or financial information obtained from a person [that is]
privileged or confidential.'' \130\ In order for information to meet
the requirements of Exemption 4, EPA must find that the information is
either: (1) a trade secret, or (2) commercial or financial information
that is: (a) obtained from a person, and (b) privileged or
confidential.
---------------------------------------------------------------------------

    \129\ 5 U.S.C. 552(b)(4).
    \130\ 5 U.S.C. 552(b)(4).
---------------------------------------------------------------------------

    Generally, when we have information that we intend to disclose
publicly that is covered by a claim of confidentiality under FOIA
Exemption 4, EPA has a process to make case-by-case or class
determinations under 40 CFR part 2 to evaluate whether such information
qualifies for confidential treatment under the
exemption.131 132 In this action, EPA is proposing to make
categorical emission data and confidentiality determinations in advance
through this notice and comment rulemaking for some information that
must be submitted to EPA under the proposed requirements. If EPA
finalizes these determinations, that information would be subject to
disclosure to the public without further notice.
---------------------------------------------------------------------------

    \131\ 40 CFR 2.205.
    \132\ This approach of making categorical determinations for a
class of information is a well-established Agency practice. Prior
examples of rules where EPA has made such categorical determinations
include Confidentiality Determinations for Data Required Under the
Mandatory Greenhouse Gas Reporting Rule and Amendments to Special
Rules Governing Certain Information Obtained Under the Clean Air Act
(76 FR 30817) (May 26, 2011); Control of Air Pollution From New
Motor Vehicles: Heavy-Duty Engine and Vehicle Standards (88 FR 4296)
(January 24, 2023); and Renewable Fuel Standard (RFS) Program: RFS
Annual Rules (87 FR 39600) (July 1, 2002).
---------------------------------------------------------------------------

    The U.S. Supreme Court decision in Food Marketing Institute v.
Argus Leader Media, 139 S. Ct. 2356 (2019) (Argus Leader) addresses the
meaning of ``confidential'' within the context of FOIA Exemption 4. The
Court held that ``[a]t least where commercial or financial information
is both customarily and actually treated as private by its owner and
provided to the government under an assurance of privacy, the
information is `confidential' within the meaning of Exemption 4.''
\133\ The Court identified two conditions ``that might be required for
information communicated to another to be considered confidential.''
\134\ Under the first condition, ``information communicated to another
remains confidential whenever it is customarily kept private, or at
least closely held, by the person imparting it.'' \135\ The second
condition provides that ``information might be considered confidential
only if the party receiving it provides some assurance that it will
remain secret.'' \136\ The Court found the first condition necessary
for information to be considered confidential within the meaning of
Exemption 4, but did not address whether the second condition must also
be met.
---------------------------------------------------------------------------

    \133\ Argus Leader, 139 S. Ct. at 2366.
    \134\ Id. at 2363.
    \135\ Id. (internal citations omitted).
    \136\ Id. (internal citations omitted).
---------------------------------------------------------------------------

    Following the issuance of the Court's opinion in Argus Leader, the
U.S. Department of Justice (DOJ) issued guidance concerning the
confidentiality prong of Exemption 4, articulating ``the newly defined
contours of Exemption 4'' post-Argus Leader.\137\ Where the

Government provides an express or implied indication to the submitter
prior to or at the time the information is submitted to the Government
that the Government would publicly disclose the information, then the
submitter generally cannot reasonably expect confidentiality of the
information upon submission, and the information is not entitled to
confidential treatment under Exemption 4.\138\ In this proposed rule,
EPA intends to clearly assert that certain information will not be kept
confidential and will be disclosed publicly, if it is determined to not
be entitled to confidential treatment in the final version of this
rule. This assertion aligns with the Supreme Court's decision, and the
subsequent DOJ guidance that the government's assurances that a
submission will be treated as not confidential should dictate the
expectations of submitters. If EPA were to finalize these
determinations, submitters would be on notice before they submit any
information that EPA has determined that the identified data elements
outlined in the tables below, as well as in the memorandum provided in
the docket for this action titled Proposed Confidentiality
Determinations and Emission Data Designations for Data Elements in the
Proposed Rule, will not be entitled to confidential treatment upon
submission and may be released by the Agency without further notice. As
a result, submitters will not have a reasonable expectation that the
information will be treated as confidential; rather, they should have
the expectation that the information will be disclosed.
---------------------------------------------------------------------------

    \137\ ``Exemption 4 After the Supreme Court's Ruling in Food
Marketing Institute v. Argus Leader Media and Accompanying Step-by-
Step Guide,'' Office of Information Policy, U.S. DOJ, (October 4,
2019), available at https://www.justice.gov/oip/exemption-4-after-supreme-courts-ruling-food-marketing-institute-v-argus-leader-media.
    \138\ See id.; see also ``Step-by-Step Guide for Determining if
Commercial or Financial Information Obtained from a Person is
Confidential under Exemption 4 of the FOIA,'' Office of Information
Policy, U.S. DOJ, (updated October 7, 2019), available at https://www.justice.gov/oip/step-step-guide-determining-if-commercial-or-financial-information-obtained-person-confidential.
---------------------------------------------------------------------------

    As described further below, EPA is proposing to make categorical
confidentiality determinations as some of the proposed data elements
that would be submitted to EPA contain information that is not entitled
to confidential treatment because either: it is not the type of
information that submitters customarily keep private or closely held;
it is already publicly available; or it is discernible information that
is self-evident or readily observable through reverse engineering by a
third party.
2. Emissions Data Under Section 114 of the Clean Air Act
    The AIM act provides that, ``[s]ections 113, 114, 304, and 307 of
the Clean Air Act (42 U.S.C. 7413, 7414, 7604, 7607) shall apply to
this section and any rule, rulemaking, or regulation promulgated by the
Administrator pursuant to this section as though this section were
expressly included in title VI of that Act (42 U.S.C. 7671 et seq.).''
The CAA states that ``[a]ny records, reports or information obtained
under [section 114] shall be available to the public. . . .'' \139\
Thus, the CAA begins with a presumption that the information submitted
to EPA will be available to be disclosed to the public. It then
provides a narrow exception to that presumption for information that
``would divulge methods or processes entitled to protection as trade
secrets. . . .'' The CAA then narrows this exception further by
excluding ``emission data'' from the category of information eligible
for confidential treatment. While the CAA does not define ``emission
data,'' EPA has done so by regulation at 40 CFR 2.301(a)(2)(i). EPA
releases, on occasion, some of the information submitted under CAA
section 114 to parties outside of the Agency of its own volition,
through responses to requests submitted under the FOIA,\140\ or through
civil litigation. As noted in the prior section, generally, when we
have information that we intend to disclose publicly that is covered by
a claim of confidentiality under FOIA Exemption 4, EPA has a process to
make case-by-case or class determinations under 40 CFR part 2. This
process includes an evaluation of whether such information is or is not
emission data, and whether it otherwise qualifies for confidential
treatment under FOIA Exemption 4.\141\
---------------------------------------------------------------------------

    \139\ CAA section 114(c); 42 U.S.C. 7414(c).
    \140\ 5 U.S.C. 552.
    \141\ 40 CFR 2.301(a)(2)(i).
---------------------------------------------------------------------------

    The regulations at 40 CFR 2.301 \142\ define emission data to
include the following:
---------------------------------------------------------------------------

    \142\ The Agency is not reopening, taking comment on, or
proposing to modify this definition.
---------------------------------------------------------------------------

    (A) Information necessary to determine the identity, amount,
frequency, concentration, or other characteristics (to the extent
related to air quality) of any emission which has been emitted by the
source (or of any pollutant resulting from any emission by the source),
or any combination of the foregoing;
    (B) Information necessary to determine the identity, amount,
frequency, concentration, or other characteristics (to the extent
related to air quality) of the emissions which, under an applicable
standard or limitation, the source was authorized to emit (including,
to the extent necessary for such purposes, a description of the manner
or rate of operation of the source); and
    (C) A general description of the location and/or nature of the
source to the extent necessary to identify the source and to
distinguish it from other sources (including, to the extent necessary
for such purposes, a description of the device, installation, or
operation constituting the source).
    In this proposal, we are applying the regulatory definition of
``emission data'' in 40 CFR 2.301(a)(2)(i) to propose that certain
categories of source certification and compliance information are not
entitled to confidential treatment because they qualify as emissions
data. If EPA finalizes these determinations, that information would be
subject to disclosure to the public without further notice. As relevant
to this proposal, a ``source'' for purposes of the definition in 40 CFR
2.301 is generally the equipment covered by a proposed regulatory
requirement, such as a refrigerant-containing appliance or fire
suppression equipment. EPA's broad general definitions of emissions
data also exclude certain information related to products still in the
research and development phase or products not yet on the market except
for limited purposes. Thus, for example, 40 CFR 2.301(a)(2)(ii)
excludes information related to ``any product, method, device, or
installation (or any component thereof) designed and intended to be
marketed or used commercially but not yet so marketed or used.'' This
specific exclusion from the definition of emissions data is limited in
time. EPA does not believe data related to this exclusion are
implicated in this proposed rulemaking because these data relate to
equipment currently in use and HFCs moving through commerce.

B. Data Elements Reported to EPA Under the Leak Repair Provisions

    Consistent with EPA's commitment to transparency in program
implementation, EPA has reviewed the data elements in the chronically
leaking appliance report and the other ad hoc reports proposed under
the leak repair requirements to see if information under the umbrella
of those data elements could be considered entitled to confidential
treatment. EPA is proposing to treat certain data elements under the
leak repair provisions as not entitled to confidential treatment.
Tables 2 and 3 outline individual data elements that will not be
handled as confidential, emission data, or

otherwise not entitled to confidential treatment. Additional
information on these proposed determinations is provided in the
memorandum titled Proposed Confidentiality Determinations and Emission
Data Designations for Data Elements in the Proposed Rule, which is
available in the docket for this action. There may be additional
reasons not to release individual data elements determined to not be
entitled confidential treatment, for example if it is personally
identifiable information (PII). The Agency will separately determine
whether any data should be withheld from release for reasons other than
business confidentiality before data is released. EPA requests comment
on the following proposed confidentiality determinations.
BILLING CODE 6560-50-P
[GRAPHIC] [TIFF OMITTED] TP19OC23.002

[GRAPHIC] [TIFF OMITTED] TP19OC23.003

BILLING CODE 6560-50-C

    EPA is proposing to find that the information contained within
these data elements would categorically not be eligible for
confidential treatment because they are either readily apparent or
easily ascertainable by an outsider (e.g., owner name, facility name,
facility address where appliance is located, appliance ID or
description, and appliance type (comfort cooling, IPR, or commercial
refrigeration)) or they are considered emissions data under 40 CFR
2.301 (e.g., refrigerant type, full charge of appliance, annual percent
refrigerant loss, dates of refrigerant addition, amounts of refrigerant
added, date of last successful follow-up verification test, explanation
of cause of refrigerant losses, repair actions taken, and whether a
retrofit or retirement plan been developed for the appliance, and, if
so, the anticipated date of retrofit or retirement), or they fit into
both categories. Similarly, the items included in a request for an
extension for leak repair, request for relief from the obligation to
retrofit or retire an appliance, request for an extension of time to
complete the retrofit or retirement of an appliance, and a notification
of exclusion of purged refrigerants that are destroyed from annual leak
rate calculations are likewise not eligible for confidential treatment
because this information is readily ascertainable/observable by an
outside entity, or are considered emissions data under 40 CFR 2.301, or
both. EPA notes that in these provisions, the source of the emissions
would be the regulated equipment, and in the case of all of these
notifications these data are necessary to determine the identity,
amount, frequency, concentration, or other characteristics (to the
extent related to air quality) of any emission which has been emitted
by the source and/or information necessary to determine the identity,
amount, frequency, concentration, or other characteristics (to the
extent related to air quality) of the emissions which, under the
proposed leak repair provisions, the source was authorized to emit; and
a general description of the location and/or nature of the source to
the extent necessary to identify the source and to distinguish it from
other sources (including, to the extent necessary for such purposes, a
description of the device, installation, or operation constituting the
source).

C. Data Elements Related to the Generation of Machine-Readable Tracking
Identifiers and the Tracking of HFCs

    Building on EPA's experience implementing similar requirements
under the AIM Act, EPA is proposing to maximize program transparency.
Market transparency would facilitate program implementation and
increase the public and current market participants' ability to provide
complementary compliance assurances and engagement.
    Maximizing transparency incentivizes compliance and promotes
accountability and allows the public and competing companies to
identify and report noncompliance to EPA.
    As previously noted, EPA is proposing to establish a tracking
system using machine-readable tracking identifiers to track the
movement of regulated substances that could be used in servicing,
repair, or installation of refrigerant-containing equipment or fire
suppression equipment through commerce, including requiring anyone that
introduces into interstate commerce or sells a regulated substance that
could be used in servicing, repair, or installation of equipment to be
registered in the system. This program will allow buyers to able to
know that they are purchasing regulated substances that meet the
regulatory requirements and to help determine whether they consist of
reclaimed material.
    This proposal involves the collection of certain data elements.
Anyone who is filling a container or cylinder, whether for the first
time or when transferring HFCs from one container to one or more
smaller or larger containers, would be required to enter information in
the tracking system and, in the case of a container being filled for
the first time, generate a new machine-readable tracking identifier.
Such information includes: the brand it would be sold under, the
quantity and composition of HFC(s) in the container, the date it was
packaged or repackaged, the quantity of containers it was packaged in,
and the size of the containers. To help ensure regulated HFCs sold by
reclaimers are legally reclaimed material and eligible for sale, EPA is
proposing that reclaimers would need to log into the tracking system
and, for each container of HFCs prior to selling regulated substances,
provide information such as the date the HFC was reclaimed and by whom;
what regulated substance(s) (and/or the blend containing regulated
substances) is in the container; how many kilograms were put in the
container and on what date the container was filled; whether the purity
of the batch was confirmed to meet the specifications in appendix A to
40 CFR part 82, subpart F; on what date the batch was tested; and who
certified it met the specifications. If a container is filled with
reclaimed and virgin HFC(s), EPA proposes that the reclaimer would have
to also provide information on how much virgin HFC was used.
    If EPA were to finalize a tracking system with machine-readable
tracking identifiers, EPA is proposing to release several data elements
associated with each container of HFCs to potential buyers of HFC
material, to support this system, because it is not the type of
information that is customarily closely held or kept private by
companies. We further note that the EPA recently made categorial
determinations that this same type of information would not be eligible
for confidential treatment in the Allocation Framework Rule (86 FR
55116, 55186, October 5, 2021).\143\ Accordingly, submitters of this
data have no reasonable expectation that these data elements are
entitled to confidential treatment, and the Agency is therefore not
required to treat this information as confidential when it is received
and maintained in Agency records.
---------------------------------------------------------------------------

    \143\ As noted elsewhere in this proposal, petitions for
judicial review challenging aspects of the Allocation Framework Rule
were filed in the D.C. Circuit. The court rejected all of those
challenges except for the challenges to the QR code and refillable-
cylinder regulations, which were vacated. Heating, Air Conditioning
& Refrigeration Distributors Int'l v. EPA, 71 F.4th 59 (D.C. Cir.
2023). Although that vacatur may affect some of the underlying
requirements that lead to the categorical determinations in the
Allocation Framework Rule, the categorical determinations themselves
were not challenged, and the court's opinion does not address them.
Thus, the court opinion does not affect the validity of the grounds
for the categorical determinations in the Allocation Framework Rule.
---------------------------------------------------------------------------

    To allow buyers of HFCs to determine whether the HFC they are
purchasing complies with regulatory requirements, EPA proposes to
release the following information: (1) Whether the HFC being sold is
legal to purchase based on information available to EPA; (2) when the