Comment Log Display

It is our belief that the industry interprets that R-11 and R-12
recovered from refrigeration systems, which are subsequently
destroyed, are not hazardous waste. This is based on an
understanding that the Code U designation, U121 and U075
respectively, only apply if the refrigerants were manufactured and
subsequently destroyed without ever being used.

The ARB determination has at its foundation the notion that these
refrigerants are hazardous waste and therefore the byproducts are
hazardous waste. The determination therefore found the byproducts
of the Projects in question directly contributed to the violation
issued against Clean Harbors, for the continued improper disposal
of those byproducts.

Used refrigerant handling companies, from service contractors to
refrigerant wholesalers, refrigerant reclaimers and all the
transportation companies in between have always handled
refrigerants used in the HVAC/R industry as non hazardous waste,
including R-11 and R-12. To further assure that refrigerants did
not fall under RCRA regulation the EPA long ago established an
exemption in 40 CFR 261.2 to ease the compliance hurdles for all
the players that were being charged with handling refrigerants that
had previously been vented as a standard practice. In their
argument, found in OSWFR-91-005, the EPA spelled out that taking
action to eliminate hazardous waste issues was necessary to
encourage businesses to participate in efforts to eliminate
venting, meet our treaty obligations, and protect the ozone layer.

The EPA regulations surrounding refrigerants, from the very
beginning, lacked specific information for hands on, operational
compliance directives. There are hundreds of examples where the
industry was charged with developing specific compliance practices
and procedures based on their interpretation of the regulations,
most often with little or conflicting direction on how to proceed.

The industry developed operational procedures derived from Title VI
regulations and those interpretations have produced results to a
level in direct correlation to the value of refrigerants. Without
the application of haz waste compliance, allowing a lower cost of
operation, plus a reasonable resale price, an environment can exist
to encourage refrigerant recovery and “no vent” compliance.
Historically the industry has seen that adjustments to the price of
refrigerants and the cost of compliance activities have directly
correlated to compliance levels.

The regulations, when they were conceived, focused on the “3R”s to
provide an alternative to venting. Recovery(the capture of
otherwise vented refrigerants), Recycling (the reuse of used
refrigerants) and Reclaim (the reprocessing of used refrigerant to
new standards). From the horizon that was visible back in the late
1980s little consideration was given to what would happen 30 years
later when successful industry implementation of the regulations
would lead to a surplus of refrigerants that were no longer needed.
Initially, CFC pricing was relatively low however through phaseout
supply pressures prices ultimately reached very high levels,
causing no vent compliance to also peak. As demand deteriorated,
CFC prices went back down to very low levels, unfortunately with
corollary levels of compliance.

Thankfully, ARB’s carbon offset protocols for refrigerant
destruction provide an alternate end of life for CFCs beside the
atmosphere. Also inherent in the protocol is the price support
necessary to incentivise equipment owners to capture and sell
refrigerants, rather than vent them. As a result there now appears
to be a financially viable solution for what to do with the
leftover CFCs. 

Again, in order to encourage the industry to participate in the
implementation of the original regulations the EPA carefully
defined the U codes and further provided the exemption to ensure
the removal of the hazardous waste handling issue from the original
owners and the chain of collection activities. With destruction for
generation of Carbon Credits becoming the only financially viable
end use for used CFCs, and potentially HCFC and HFCs in the future,
it is critical to the viability of the protocols that the current
industry interpretation, that they are not handling hazardous
waste, remains in place.

The objective should be to protect the current industry
understanding, that refrigerants are not a hazardous waste, in
order to allow the continued use of the existing refrigerant
collection network to feed the ARB refrigerant destruction
protocols. We would ask that ARB pursue a clarification of the
EPA’s opinion, armed with this information, so that CFCs can
continue to be collected and destroyed through the established
collection and handling systems and destruction facilities.

That said, we would also comment that it seems ARB can find the
Projects in question to be invalidated simply based on the fact
that they were in process at the time that Clean Harbors was found
in violation by a governing authority and continued operating in
violation. This could be done without taking a position on the
hazardous waste question or stipulating the projects’ direct
contribution to the violation.

Thank you for the opportunity to provide comment.