Environmental Protection Agency (EPA).
Notice of proposed bakery partnership program and request for comments.
In today's Federal Register the Environmental Protection Agency announces a unique voluntary Partnership Program for the baking industry. EPA believes that there are many bakeries that are leaking ozone depleting substances, including chlorofluorocarbons (CFCs), in excess of permitted levels, and therefore, intends to establish a voluntary program for reducing these emissions in an expeditious, highly cost-effective manner. This program generally requires participants to audit certain appliances and phase out Class I industrial process refrigeration appliances. It also provides incentives to replace existing appliances with non-ozone depleting systems, and requires compliance with the leak repair regulations.
Participation in the partnership program is purely voluntary, and this is not a rule, but it does combine the advantages of predictability and Start Printed Page 63697reduced penalties with incentives to move away from the use of ozone depleting substances (ODS). Participating companies will be asked to agree to phase out use of the more hazardous Class I ODS by July 15, 2003, reflecting the fact that use of these substances is being rapidly phased out under existing rules. Bakeries that have installed non-ODS systems by March 15, 2002, can avoid all penalties under this agreement. Bakeries that install non-ODS systems after that date but no later than July 15, 2004 (unless an extension is granted) are limited to penalties of $10,000 per appliance. All other appliances must pay a per pound penalty for any leaks that cross a high threshold but again, this per pound penalty can be avoided by conversion to non-ODS systems. Companies already under national investigation for violations are not eligible to participate in this program. EPA solicits comments on the Bakery Partnership Program described below.
Comments should be submitted by January 9, 2002.
Comments should be submitted: Bakery Partnership Program Comments, the Docket Clerk, Enforcement and Compliance Docket and Information Center (Mail Code 2201A), Docket Number EC-2001-007, U.S. Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Ave, NW., Washington, DC 20460 (in triplicate, if possible). Please use a font size no smaller than 12. Commenters are encouraged to submit their comments electronically in lieu of or in addition to standard delivery, by sending those comments electronically to a separate email box established for the purpose of receiving comments and other notices under this Bakery Partnership Program: email@example.com. Attach electronic comments as an ASCii (text) file, and avoid the use of special characters and any form of encryption. Be sure to include the docket number, EC-2001-007 on your document. Comments may also be faxed to (202) 501-1011. In person, deliver comments to Enforcement and Compliance Docket and Information Center, U.S. Environmental Protection Agency, Ariel Rios Building, Room 4033, 1200 Pennsylvania Ave, NW., Washington, DC 20460. Persons interested in reviewing this docket may do so by calling (202) 564-2614 or (202) 564-2119.Start Further Info
FOR FURTHER INFORMATION CONTACT:
Mr. Charles Garlow, Air Enforcement Division (2242A), U.S. EPA, 1200 Pennsylvania Ave NW., Washington, DC 20460, telephone 202-564-1088.End Further Info End Preamble Start Supplemental Information
Many industries, including most industrial bakeries, use ozone depleting substances [ODS], such as CFCs and hydrochlorofluorocarbons [HCFCs], to cool their products. Like other industrial sources, most industrial bakeries have industrial process refrigeration appliances that are subject to 40 CFR part 82, subpart F. The equipment that produces the product contains CFCs or other ozone depleting substances in jackets around the product. The equipment may sometimes leak these coolants in sizeable quantities into the air, not into the product. If certain leak rates are exceeded, the company may be required to retrofit or retire the equipment.
EPA has concluded two large industrial process refrigeration enforcement cases, one of which involved a baking company with bakeries in several states. In both cases, the companies voluntarily chose to replace their industrial process refrigeration appliances with equipment designed to prevent pollution. The ozone depleting coolant was replaced by a cooling system which uses a secondary loop containing a cooling solution, glycol, that is not an ozone depleting substance. Although the primary loop of the refrigeration system may still contain some ozone depleting substances, the quantity is greatly reduced, and the ODS refrigerant is located where vibration and the potential for leaks is greatly reduced. The EPA wants to encourage all companies with industrial process refrigeration appliances that may be leaking to consider a similar pollution prevention approach to ensuring their compliance with the refrigerant recycling and emissions reduction regulations found at 40 CFR part 82, subpart F.
EPA is inviting the baking industry to participate in a voluntary program to address these potential violations. It offers an expedited way for companies to correct past violations and prevent future ones, in return for a release from past liabilities and reduced penalties. The largest trade association representing bakeries accepted this invitation on behalf of its members. The total number of industrial bakeries is not exactly known yet, but it is believed that there may be over 1000 bakeries in the United States. Each bakery will likely have one or more industrial process refrigeration appliances that are subject to the regulations, such as mixers or chillers, at each bakery. Many of these industrial process refrigeration appliances, have already been converted to non-ODS, pollution prevention equipment.
In the interests of promoting fast, efficient and widespread emission reductions, and better compliance with the regulatory structure, EPA intends to offer and enter into agreements with baking companies providing for the following:
- Audit their facilities;
- Identify problem areas;
- Pay a greatly reduced penalty, and propose solutions that will protect the environment; and,
- Ensure greater compliance with the refrigerant recycling and emissions reduction regulations found at 40 CFR part 82, subpart F.
EPA's proposal offers clear and consistent terms to reduce uncertainty and eliminate the need for extended, individualized negotiations. Presented here are the basic elements, illustrations and a chronology of key steps that EPA and participants will be expected to take. The basic elements of the program are as follows:
- Notice to EPA. Bakeries not already the subject of a national enforcement investigation or action, and which have industrial process refrigeration appliances containing 50 pounds or more of ODS refrigerants, are eligible to participate. Companies intending to participate should notify EPA by March 15, 2002 and as soon thereafter as possible, but no later than March 30, 2002, identify the number of appliances to be audited. If some of the industrial process refrigeration appliances have been converted to non-ODS systems prior to March 15, 2002, a count of these appliances should also be provided. If, during the audit, a more accurate tally is obtained, an updated notice may be submitted at that time. Appendix A contains a sample notice of participation. It can be sent by electronic mail or hard copy mail, but electronic mail or e-mail is preferred.
- Annualized leak rate. For the purposes of this Partnership Agreement, the annualized leak rate shall be calculated for every instance in which refrigerant was added to the appliance. The leak rate shall be calculated by the formula agreed upon by EPA in the Compliance Guidance for Industrial Process Refrigeration Leak Repair Regulations under Section 608 of the Clean Air Act.
- Audit. Participating companies must audit up to June 15, 2003, i.e., assess the compliance status of all their industrial process refrigeration appliances and facilities. They must then report to EPA a summary of their findings, by July 15, 2003. If a company complies with the program, EPA intends Start Printed Page 63698to grant a release from civil liability for the matters identified and corrected, so long as reduced penalties are paid as described below. However, if violative conduct is not identified and corrected, EPA is not granting any release for such problems. Good faith participants in this Partnership Program will receive a release for the period of time prior to September 30, 2000, even though this period may not be audited. If a facility has installed non-ODS technology on any of their appliances prior to the March 15, 2002 start date for this partnership program, such an appliance need not be audited, and a complete release from civil liabilities and penalties will be granted for such appliances. By non-ODS systems, EPA means systems that contain no ODS at all [e.g. HFC systems or ammonia systems] or no ODS in the secondary loop, but may contain an ODS in the primary loop. Typically, the ODS in the primary loop [compressor] is a much smaller volume, and is not subjected to the vibration in the process areas that may cause greater leaks. If the primary loop contains less than 50 pounds of ODS, as is frequently the case, then the appliance is exempt from the leak repair regulations. It is still subject to other requirements such as the “no venting” requirement of 40 CFR 82.154(a).
- Class I appliances. All Class I appliances must be audited and converted either to a non-ODS system or to a system using an ODS with an ozone depleting potential [ODP] of less than 0.1. Class I appliances are those containing Class I controlled substances, listed in appendix A to subpart A of 40 CFR part 82, and include CFC refrigerants (e.g., R-12). Leaks from these Class I appliances are more damaging to the Earth's ozone layer than an equivalent amount of leakage from Class II appliances. The phaseout of the production of CFCs was completed as of December 31, 1995. Since the availability of CFCs will continue to decrease over time, EPA believes that this is a good time to switch to a less ozone-depleting technology. EPA estimates that the vast majority of appliances in this industry have already switched from using Class I ODS to either Class II or non-ODS systems. Participating companies must identify their Class I appliances and submit a plan for change/conversion to either the Class II ODS with an ODP of 0.1 or less, such as R-22, or to a non-ODS system. The audits must be completed and plans must be submitted to EPA by July 15, 2002. An Administrative Order on Consent [AOC] will incorporate a pledge to complete the audits of Class II appliances and to submit plans if needed, for those appliances by July 15, 2003 and pay penalties as specified in the agreement. EPA expects the plans for Class I appliances to be fully implemented by July 15, 2003, but may grant additional time in exceptional circumstances pursuant to 40 CFR 82.156(i)(7).
- Class II appliances. All Class II appliances must be audited by June 15, 2003. Class II appliances are those containing Class II controlled substances, listed in appendix B to subpart A of 40 CFR part 82 (including all HCFC refrigerants, such as R-22). If any of these appliances are being changed/converted to non-ODS systems, then plans to accomplish this must be submitted by July 15, 2003 as agreed to in the July 2002 AOC.
- CAFO. EPA will issue Compliance Agreement Final Orders [CAFOs] to participating companies that reflect the audit findings, implementation plans and schedule of corrections, any reduced penalties that must be paid and a release from civil liability conditioned on completion of the implementation plans and corrections. EPA will issue CAFOs at the completion of all audits in July of 2003. If a company has only Class I appliances, EPA will issue the CAFO in July of 2002. Companies must also commit to compliance with all regulations.
- Plan Implementation. By July 15, 2003 for Class I appliances and by July 15, 2004 for Class II appliances, all plans for equipment changes/conversions should be completely implemented, unless extensions are granted pursuant to 40 CFR 82.156(i)(7). EPA is still considering whether the proposal outlined above satisfies the Clean Air Act requirement that Section 113(a) administrative orders must require compliance within twelve months of their issuance.
- Program Completion. By July 15, 2004 or such later date that all conversions are completed, the participating company will notify EPA and EPA will respond with a confirmation letter acknowledging the completion of the Bakery Partnership Program.
- Per appliance penalty. A penalty of $10,000 shall be paid for all ODS containing appliances, regardless of whether violations are identified or not, except that no penalties are due for any appliance converted to a non-ODS system before March 15, 2002. No bakery facility must pay more than $50,000 in these penalties. This penalty will be paid with other penalties no later than 30 days after receipt of the CAFO.
- Per pound penalties. Additional “per pound” penalties for all appliance leaks discovered during the audit, occurring after a 35% annualized leak rate, must be calculated on a 12 month basis, beginning when the auditing period starts, i.e., September 30, 2000. At the end of the 12 month period following a 35% annualized leak rate, per pound calculations cease, unless a subsequent 35% annualized leak is discovered, in which case another 12 month period of calculation begins. Per pound penalty calculations end June 15, 2003.
- No per pound penalties for replacement with non-ODS system. Switching to a non-ODS system is encouraged. If a participating company agrees to replace an ODS system with a non-ODS system in an appliance, no “per pound” penalties need be paid for that appliance. If a company is facing high per pound penalties for a particular appliance but has decided that it does not make technical or economic sense for the company to convert that particular appliance to a non-ODS system, it may instead substitute another appliance[s] and still avoid the per pound penalties for the first appliance. The first appliance must still be brought into full compliance. This “bubbled compliance” concept would allow a company to substitute another appliance or appliances that have 120% of the full charge of the appliance that will not be changed/converted. For example, if a 1000 pound appliance has very high per pound penalties that the company wishes to avoid, it may avoid those penalties either by converting this appliance to a non-ODS system, or by converting one or more other ODS containing appliances [that were not already required to convert to non-ODS systems] which have a total charge of at least 1200 pounds. This could be one other appliance with a full charge of 1200 pounds or two appliances of 600 pounds each or some other combination of appliances that total at least 1200 pounds of refrigerant. If the two 600 pound appliances in this example had per pound penalties of their own, those penalties would still be due, unless some other appliance or appliances in turn were converted to non-ODS systems in their stead, at the 1.2 to 1 ratio, as above.
- Start-up period. No leaks will be counted as part of the per pound calculation for the period 60 days after a new installation or after an appliance is changed/converted to a non-ODS or lower than 0.1 ODP system, as a “start up” period. Start Printed Page 63699
- Per pound amounts. Per pound penalties will be calculated per appliance as follows: $20 per pound for up to 500 pounds, $30 per pound for 501-1000 pounds and $40 per pound for the pounds over 1000 for each 12 month period after a 35% annualized leak rate is identified.
In summary, all sources must achieve and maintain full compliance with the refrigerant recycling and emissions reduction regulations found at 40 CFR part 82, subpart F. In addition, appliances using class I substances must be audited and changed/converted. Appliances using class II substances must be audited. Owners of Class I and II appliances may elect to convert to non-ODS to avoid paying fees for higher leaks. Each company will sign an Administrative Order on Consent [AOC] on or before July 15, 2002 and sign a Consent Agreement Final Order [CAFO] on or before July 15, 2003, which will specify a conditional waiver of liability. These are the main points of interest in this partnership agreement. There are some other minor details that are mentioned in the Partnership Agreement and the other Appendices, which should be self explanatory. Other approaches to achieving the objectives of this program were considered by EPA and the industry representatives, but this approach was chosen as being the best from the point of view of administrative ease of implementation and environmental improvement.
Here is an example of what a participating company may encounter during participation in this partnership agreement:
If a participating company, is eligible and wants to participate, it should send a notice to EPA by March 15, 2002, identifying the company and its facilities and appliances. If this company has five bakeries and five appliances in each bakery, for a total of 25 appliances, seven of which have been converted to a non-ODS system prior to March 15, 2002, then there will be a $10,000 penalty per appliance for the 18 ODS containing appliances. This company will, however, get a release from civil liability for all 25 appliances for problems identified and corrected. The company is best advised to pay particular attention to their Class I appliances, if any, as audits must be conducted and a decision on these appliances must be made by July 15, 2002. If there are four Class I appliances, they should be audited first to determine what “per pound” penalties may be due for these appliances. If the per pound penalties determined from this audit indicate that a large per pound penalty may be due for several of these appliances, then this may be persuasive in deciding to convert these appliances to a non-ODS system in order to avoid the per pound penalties. If, instead, the company chooses to convert some or all of the Class I appliances to a Class II ODS refrigerant with an ODP of less than 0.1, rather than a non-ODS system, then the per pound penalties will still be due and payable by 30 days after receipt of the CAFO, which should be shortly after July 2003. Auditing and calculation of per pound penalties should continue through June 15, 2003 to ensure continuing compliance and lowered emissions.
By July 15, 2002, this company must prepare a plan and submit this plan to EPA, indicating which of the appliances are the Class I appliances, and what changes or conversions the company pledges to make to them, with a schedule for the work anticipated. The company should submit, along with the plans, the auditing summaries for the Class I appliances [see the sample below]. EPA will incorporate the plans for these four Class I appliances, along with the pledge to continue auditing the other appliances and to prepare and submit plans for them within a year in an Administrative Order on Consent [AOC] which should be signed by both the company, and then by EPA. EPA will return a copy of the signed AOC to the company.
For the other Class II appliances, a similar audit of compliance should begin covering the period from September 30, 2000 until June 15, 2003. Per pound penalties, if any, should be calculated for these appliances. As with the Class I appliances, if the company wishes to avoid paying these per pound penalties, it may do so by agreeing to convert the Class II systems to non-ODS systems. The company should make that decision and submit plans, if any, for such conversions to EPA by July 15, 2003. These plans will be incorporated in the CAFO. EPA expects that these plans will be implemented by July 15, 2004 with the possibility of extensions if additional time is needed.
In calculating per pound penalties, this company should look at each appliance and calculate its per pound penalties, if any. If, for example, the first Class I appliance had a 50% annualized leak rate in October 2000 and thereafter in the next 12 months had small and large leaks totaling 1500 pounds, then the per pound penalty for these 1500 pounds would be calculated as follows: $20 per pound for the first 500 pounds or $10,000, $30 per pound for pounds 501-1000 or $15,000 and $40 per pound for pounds 1001-1500 or $20,000. Thus, the total for this 12 month block period would be $45,000 [$10,000 + $15,000 + $20,000]. If a large leak rate was discovered in December 2000, that does not start another 12 month block period up to December 2001, as this is a leak inside the October 2000-2001 12 month period. If after October 2001 this same appliance had another annualized leak greater than 35%, for example, a 90% annualized leak rate, then leaks after that point would be calculated as above and added to the $45,000 total. This process should continue through June 15, 2003 and a total per pound penalty should be calculated for this appliance, and for all other appliances. The company then has the option of paying this per pound penalty or avoiding it by submitting a plan for converting to a non-ODS system. EPA hopes that this financial incentive will cause more companies to choose conversion to non-ODS systems while still giving the company the flexibility to decide which option is best for it.
On July 15, 2003, the company should submit audit summaries and plans for any equipment changes/conversions that it intends to make to the Class II appliances. It should also be prepared to pay any penalties that may be due shortly after the CAFO is received by the company. EPA will also prepare a CAFO with the release from civil liability for all matters that the company has identified as being a potential problem and corrected. This listing of audit discovered problems can be included in the plan for equipment changes/conversions or can be listed separately. It can include matters such as technician certification, better recordkeeping systems, equipment certifications, etc. Problem areas, or violations, not so identified and corrected will not receive a release from liability, so it is very important to identify all these problem areas and correct all these problems.
By July 15, 2004, the company will have completed the equipment changes/conversions, unless more time is needed and corrected other problems identified in the audit. The company will send a letter certifying that all these matters have been attended to and EPA will reply accepting this certification and thanking the company for participating. This is the end of the program for this company.
September 30, 2000
Begins period of compliance audit and monthly measurement of annual leak rates from industrial process refrigeration appliances for all partnership participants.Start Printed Page 63700
“Look-back” period gives credit to companies that have taken steps to improve leak management.
March 15, 2002
Notice of intent to participate in partnership program
—Companies must identify charging capacity and location of all appliances using over 50 lbs of Class I or Class II ozone depleting substances, and those which have converted to use of non-ODS refrigerant in secondary loop by March 15, 2002.
—Companies commit to complete audit and submit implementation plans by July 15, 2002, to convert Class I appliances to at least Class II, and to pay stipulated penalties or switch to non-ODS refrigeration appliances by July 15, 2003 (unless extension granted).
—All penalties waived for appliances that have been converted to non-ODSs by March 15, 2002.
—Program open to all companies not subject of national enforcement investigation.
July 15, 2002
EPA issues administrative order/information request on consent to participating companies reflecting commitment to complete audit by June 15, 2003 and submit implementation plans for Class II appliances by July 15, 2003.
Companies that have switched all appliances to non-ODS by March 15, 2002 may receive compliance agreement/final order (CAFO) discharging all liabilities for past violations without payment of penalty.
June 15, 2003
Audits are completed.
July 15, 2003
Bakeries submit audit results and final implementation plans.
Bakeries pay stipulated penalties for 12 months following any single month in which annualized leak rate exceeds 35%, but:
—Bakeries can avoid stipulated penalties if implementation plan commits to replace leaking appliance with non-ODS system no later than July 15, 2004 (unless program grants extension).
—Bakeries can “bubble” by substituting ODS conversion at another appliance (must have charge 120% greater than leaking appliance).
All Class I ODS appliances must convert to at least Class II ODS appliances by July 15, 2003, unless program grants extension.
EPA issues compliance agreement/final order reflecting conversion to Class II or non-ODS systems, and payment of stipulated penalties.
July 15, 2004
Bakeries must complete conversion to non-ODS systems reflected in implementation plans, unless program has granted an extension.
Annualized leak rate—(pounds of refrigerant added/pounds of full charge) × (365 days/# days since refrigerant last added) × 100%.
Appliance—industrial process refrigeration device containing 50 pounds or more of ODS refrigerants.
Class I—an ODS listed in appendix A to 40 CFR part 82, subpart A.
Class II—an ODS listed in appendix B to 40 CFR part 82, subpart A.
ODS—ozone depleting substance.
Facility—a discrete parcel of real property or such a parcel improved by Participating Company's building, structure, factory, plant, premises, or other thing, related to Participating Company's wholesale baking/bakery business, and containing at least one appliance as defined in this agreement.
Non-ODS system—systems that contain no ODS at all [e.g. HFC systems or ammonia systems] or no ODS in the secondary loop, but may contain an ODS in the primary loop.
Additional Sources of General Information
To find out more about compliance with Title VI of the Clean Air Act, access the EPA's web site at www.epa.gov/ozone. The U.S. Environmental Protection Agency (EPA) and the Chemical Manufacturer's Association (CMA) have developed a guidance document entitled Compliance Guidance For Industrial Process Refrigeration Leak Repair Regulations Under Section 608 of the Clean Air Act [see http://www.epa.gov/ozone/title6/608/compguid/compguid.html] that provides greater detail than the discussion on the EPA web site. The guidance document is intended for those persons who are responsible for complying with the requirements. The guidance should not be used to replace the actual regulations published in the Federal Register on August 8, 1995 (60 FR 40420) [see http://www.epa.gov/spdpublc/title6/608/leakfrm.txt] ; however, it can act as a supplement to explain the requirements. Reliance on this fact sheet alone will likely not result in compliance. Another useful web site is one pertaining to general leak repair: http://www.epa.gov/ozone/title6/608/leak.html. EPA has also made available a sample inspector's checklist to the trade association, which is available online at http://www.epa.gov/ozone/title6/608/compguid/compguid.html or http://www.epa.gov/oeca/ore/aed/bakery/index.html or by contacting the Ozone Hotline at 800-296-1996.
EPA believes that the above-described program is the best, most cost-effective way to achieve immediate environmental improvement and achieve significant progress in resolving the myriad compliance concerns that may be present in this industry. Its terms, conditions and protections will be available only to those companies that are eligible and elect to participate. As appropriate, non-participants may be subject to enforcement actions in which significant penalties would be sought for violations of the part 82 regulations at issue here.
Comments on the approach outlined above, as well as on the specific items and terms reflected in the following Appendices, are solicited. To be fully considered, comments must be received by January 9, 2002.Start Signature
Director, Office of Regulatory Enforcement, Office of Enforcement and Compliance Assurance.
Partnership Agreement with Appendices:
Sample Identification of Facilities/Appliances due March 15, 2002
Ozone-Depleting Substance Emission Reduction Bakery Partnership Agreement
The United States Environmental Protection Agency (“EPA”) and ______ (“Participating Company”), the parties to this agreement, desire to enter into and be bound by the terms of this Ozone-Depleting Substance (ODS) Emission Reduction Bakery Partnership Agreement (“Agreement”).
The Agreement specifies an audit, self-disclosure and corrective action program, which shall result in a release from liability for the conditions that are identified and corrected. This Agreement incorporates the features of the Bakery Partnership Program as detailed in the Federal Register on this topic, published January __, 2002.Start Printed Page 63701
1. This Partnership Agreement shall apply to and be binding upon both EPA and Participating Company, including but not limited to its officers, directors, agents, servants, employees, successors, and assigns. Participating Company shall give notice of this Agreement to any successor in interest prior to the transfer of any ownership interest in any machinery subject to Title VI, Clean Air Act (42 U.S.C. 7671 et. seq.) (the “Act”) and its incorporating regulations, 40 CFR Part 82 (“Regulations”). The Notice for this Program (“Program Notice”) was given to the baking industry by the EPA in cooperation with baking industry trade officials and trade journals.
2. In order for a Participating Company to be eligible to participate in this Agreement, the Participating Company must be a wholesale bakery not currently under corporate-wide investigation by EPA for a violation of Title VI of the Clean Air Act.
3. “Participating company” means any eligible company and its wholly-or partially-owned subsidiaries, including all their bakeries, which agree to abide by the conditions of this Agreement.
4. “Corporate-wide investigation” means an investigation that requires information disclosure from either (1) five or more facilities owned by a company that seeks to be a Participating Company or (2) all facilities that are subject to Title VI and owned by a company that seeks to be a Participating Company.
5. “Non-ODS system” means pollution prevention technology recommended to and agreed upon by EPA that supplants standard ODS technology, including but not limited to glycol, chilled water, or other non-ODS coolant in a secondary-loop system or totally non-ODS systems, such as HFCs or ammonia.
6. “Facility” means a discrete parcel of real property or such a parcel improved by Participating Company's building, structure, factory, plant, premises, or other thing, related to Participating Company's baking/bakery business, containing at least one appliance.
7. “Retrofit” means to install new or modified parts in an appliance which were not provided as a part of the originally manufactured equipment. The retrofitted appliance must use a refrigerant with an ozone depleting potential that is lower than that which was used before the retrofit.
8. “Retire” means to withdraw an appliance from service and replace it with an appliance containing a refrigerant with an ozone depleting potential that is lower than that which was used in the retired appliance.
9. “Appliance” means an industrial process refrigeration appliance containing 50 pounds of more of ODS refrigerant that is housed within the facility.
10. “ODS” means Ozone Depleting Substance used as a refrigerant.
11. Participating Company represents that:
a. It notified EPA of Participating Company's intent to participate in the Ozone Depleting Substance Emission Reduction Bakery Partnership Program by 5 p.m. Eastern Time, March 15, 2002 by submitting this executed Partnership Agreement.
b. Annex A, submitted with this Agreement, or updated shortly thereafter, is a true, accurate, and complete identification of:
i. Name of the Participating Company; and
ii. Name, street address, ZIP code, and city of each facility at which the Participating Company believes any subject appliance is presently located; and
iii. State in which the facility is located; and
iv. EPA region in which the facility is located; and
v. The number or best estimate of the number of appliances with more than 50 pounds of refrigerant when fully charged, as determined by calculation, weight, manufacturer supplied information, or an established range as described in 40 CFR 82.152.
vi. The number or best estimate of the number of non-ODS industrial process refrigeration appliances.
c. Participating Company certifies that it is eligible to be a participating company, that is, it meets the qualifications specified in paragraphs 2 and 3.
d. Participating Company agrees to audit all its facilities as specified below and disclose the summary results of such audits to EPA and correct any and all violations in accordance with this Agreement.
e. Participating Company agrees to toll the applicable statute of limitations during the life of the Agreement that may apply to the violations that may have occurred within the time period five years prior to the signing of this Agreement.
f. In the event that ownership of a facility subject to this agreement is (or was) transferred during the period covered by the agreement, the agreement shall apply to the former owner for the period during which the facility was owned by the former owner, provided all applicable terms and conditions are otherwise satisfied. The agreement shall also apply prospectively, according to its terms, to the party to whom the facility is transferred, if the new owner provides EPA with written confirmation of intent to comply with the agreement.
Audit Conduct, Report and Plans
12. Participating Company agrees to assist EPA with EPA's review of audit results. Such assistance may take the form of responding to telephone calls for clarification and other reasonable informal inquiries, without the need for formal information demands.
13. Participating Company agrees to identify all facilities with applicable industrial process refrigeration appliances.
14. Participating Company agrees to undertake a reasonable investigation and to the extent it can reasonably assemble such information, report to EPA for each applicable appliance, dates of service, beginning September 30, 2000 and continuing until June 15, 2003; pounds of refrigerant added; days since the last addition of refrigerant; percent annualized leak rate; and any associated comments by using a spreadsheet such as the one contained in Annex C. To the extent that a change in system components, such as a new compressor, may have altered the full charge, or where other special conditions arise, these conditions should be noted in the comments section.
15. Participating Company agrees to complete audits of all industrial process refrigeration appliances at each facility, except for those appliances converted to a non-ODS system prior to March 15, 2002, and notify EPA with a summary of the audit results as specified in the preceding paragraph and corrective actions planned, as necessary, by July 15, 2002 for Class I appliances and by July 15, 2003 for Class II appliances. Participating Company may, at its sole discretion, include commercial and comfort cooling appliances subject to 40 CFR 82.156(i) in the audit for compliance and receive a release from liability for problems identified and corrected.
16. Participating Company agrees to calculate the total per appliance and per pound penalties, if any, due and owing by July 15, 2003 in accordance with the method outlined in the Federal Register final announcement of the Bakery Partnership Program, and to submit this calculation to EPA.Start Printed Page 63702
17. Participating Company agrees to provide, in writing, by July 15, 2003, the steps that Participating Company will take to achieve continuous compliance with the requirements of 40 CFR Part 82. Such measures may include, but are not limited to, such things as training, record keeping, replacement, repair, installation of non-ODS systems. See Annex E for additional required Compliance Plan elements. Participating Company agrees to implement this Plan.
Audit Compliance Program
18. For all Class I appliances Participating Company will complete an audit and submit plans for the retrofit of these appliances with an ODS having an ozone depleting potential of 0.1 or less or retirement/replacement with a non-ODS system. Plans for these Class I appliances must be submitted by July 15, 2002, with a schedule for the completion of these activities within one year, unless additional time is allowed pursuant to 40 CFR 82.156(i)(7). These plans will be incorporated in an Administrative Order on Consent [AOC]. See Annex B.
19. For Class II appliances, Participating Company will sign an Administrative Order on Consent agreeing to develop, within the next twelve months, plans, where needed, for the replacement of these Class II appliances with non-ODS systems.
20. If any appliance within a facility owned by Participating Company contains a refrigerant that is not an EPA-approved refrigerant for that particular end-use (such as R-409A use in an industrial process refrigeration appliance) or is not in compliance with use restrictions of an approved refrigerant, Participating Company must take immediate steps to properly recover said refrigerant from the appliance (in accordance with the Regulations) and replace it with an approved refrigerant, in accordance with any use restrictions. Recovered refrigerant must be sent to an EPA-certified refrigerant reclaimer for ultimate reclamation or disposal.
Certification of Complete Compliance
21. Participating Company shall sign and submit to EPA a Certification of Complete Compliance (Annex D) when all plans, retrofits and other steps necessary to ensure continuous compliance have been finalized.
22. Participating Company shall provide a procedure for its employees to report violations or potential problems to the auditing team. Participating Company agrees to ensure that employees who disclose violations or potential violations to the auditing team under the Act and the Regulations are not subject to adverse job actions (including without limitation disciplinary action, denial of promotion, bonuses or pay) on the basis of such employee disclosing such violations or potential violations in accordance with company policies.
Participating Company Records Retention
23. Participating Company agrees to keep and retain on site or readily available any and all records from March 15, 1999 until two years after the conclusion of all obligations under this Agreement. Records for appliances that have been converted to non-ODS systems need not retain records for more than three years prior to the completion of the conversion to the non-ODS system. Such records shall be from both Participating Company and its employees, agents and any contractors working for Participating Company. All records are required to be retained for this period of time to facilitate review by EPA, should EPA choose to conduct such a review. Participating Company agrees to notify all employees, agents and contractors that any such record is not to be destroyed.
24. A “per appliance” penalty of $10,000, with a cap of $50,000 per facility, shall be due and owing for each industrial process refrigeration appliance that contains greater than 50 pounds of ODS after March 15, 2002. A “per pound” penalty, as specified in the above-referenced Federal Register notice, shall be calculated for each appliance, unless equipment conversions to non-ODS systems eliminate this penalty.
25. The total penalty shall be paid within 30 days of receipt of the CAFO which should be shortly after July 2003.
26. EPA agrees to forbear on Part 82 enforcement activity against Participating Company during the course of this Agreement. EPA may however, inspect and request information to ensure that the audits are being conducted fully and properly.
27. Participating Company understands that any violations discovered by EPA subsequent to the completion of the audit or compliance efforts and/or the expiration of this Agreement are subject to standard regulatory enforcement. That is, nothing in this Agreement, other than the release from civil liability for problems/violations disclosed and corrected, is to the derogation of EPA's full enforcement and compliance authority at the conclusion of the Partnership.
28. EPA does not forbear or relinquish any right to access and inspection under this agreement.
29. If EPA believes that the Participating Company has miscategorized or mischaracterized any problem/violation under this Agreement, the Dispute Resolution section of this Agreement shall be utilized.
Release From Liability/CAFO
30. Participating Company understands and acknowledges that participation in the Program will not absolve Participating Company or its employees from any criminal liability. Good faith compliance efforts with this program, as always, will be considered in the context of any alleged criminal liability.
31. EPA agrees to execute an administrative Consent Agreement Final Order conditionally releasing Participating Company from civil liability for any and all violations or potential violations that have been self-disclosed and corrected, on condition that Participating Company pays penalties that may be due and completes the plans with compliance schedules that have been submitted and agreed upon by the Participating Company and the EPA. A complete release from civil liability will be granted for any appliance that is converted to a non-ODS system. Good faith participants in this Partnership Program will receive a release for the period of time prior to September 30, 2000, even though this period may not be audited.
32. EPA and Participating Company will execute an Administrative Compliance Order on Consent and CAFO confirming that understanding.
33. Participating Company may publicize that it is partnering with the EPA in an effort to reduce ODS emissions.
34. Upon request by the Participating Company, EPA will recognize and acknowledge Participating Company's participation and assistance under the Program.
Access and Inspection
35. Without prior notice, any authorized representative of EPA (including a designated contractor), upon presentation of credentials at any of Participating Company's facilities, may enter such location(s) at reasonable Start Printed Page 63703times to determine compliance with this Agreement. Access under this clause is subject to the normal health and safety and confidentiality requirements in effect at such facilities.
36. Should the need arise, Participating Company agrees to first engage in informal dispute resolution with EPA's Air Enforcement Division staff concerning any determination made by EPA in its review of the program. Such informal dispute resolution will consist of negotiations between Participating Company and the designated attorney(s) and/or Division Director of the Air Enforcement Division at the address in paragraph 41. To exercise informal dispute resolution, Participating Company shall send a written notice to EPA outlining the nature of the dispute or disagreement and request informal negotiations to resolve the dispute. Such period of informal negotiations shall not extend beyond thirty (30) days from the date when the notice was received, unless the parties agree otherwise in writing.
37. Should the Participating Company be dissatisfied with the results of the informal dispute resolution, the Participating Company may request that the dispute be elevated to the Director of the Office of Regulatory Enforcement or the Assistant Administrator of the Office of Enforcement and Compliance Assurance, Headquarters US EPA, to determine the outcome of the dispute or disagreement. As part of any such dispute elevation, the Office of Air and Radiation staff and managers will be consulted. Participating Company agrees that elevation within EPA is the sole and final dispute resolution mechanism. [EPA is exploring additional ways to resolve disputes such as Alternative Dispute Resolution with a third party].
38. This Agreement shall become effective upon the date signed by the parties to this agreement (below).
39. Nothing in this Agreement will relieve the Participating Company of its obligation to comply with any other Clean Air Act provision, other environmental law, or applicable environmental regulations, either state or Federal.
40. Participating Company agrees to accept service from EPA by mail with respect to all matters relating to this Agreement at the address listed below (if different from the one listed in Annex A).
41. EPA agrees to accept service from Participating Company by mail with respect to all matters relating to this Agreement at the address listed below
Electronically preferred: firstname.lastname@example.org
Title VI Coordinator, Attention: Charlie Garlow, US EPA Air Enforcement Division, 1200 Pennsylvania Ave NW., Mail Code 2242A, Washington, D.C. 20460,
42. This Agreement and the Annexes and Federal Register notice incorporated by reference in this Agreement, represents the final form of the contract between EPA and Participating Company. No oral modifications to the Agreement will be binding upon either party.
43. EPA and the Participating Company represent that they have examined this agreement and the attached and incorporated annexes and Federal Register notice and agree to the terms by signing and dating below.
44. Each person signing this Agreement represents that he or she is authorized to legally bind the party on whose behalf he or she is signing.
45. Agreed To:
U.S. Environmental Protection Agency
Annex A—Sample Identification of Facilities
|Participating company/facility name||Location, mailing address, city, zip||State||Region||Number of ODS-containing and non-ODS appliances, if known|
|Marvy Bread/Plant 4||123 Main St, Lodi 94588||CA||9||15 ODS, 5 non-ODS.|
Annex B—Sample Administrative Order on Consent
United States Environmental Protection Agency
In the Matter of [Participating Company] Respondent. Bakery Partnership Program, Agreement Number ______
Findings and Order
Pursuant to Sections 113(a)(3) and 114 of the Clean Air Act (“CAA”), consistent with the Bakery Partnership Program identified above and entered into between the United States Environmental Protection Agency (“EPA”) and Respondent, and based upon available information, EPA hereby makes and issues the following Findings and Order, with the expressed consent of Respondent:
1. Respondent is a Participating Company under the above-identified Bakery Partnership Program.
2. EPA promulgated regulations for the control of Ozone Depleting Substances, appearing in 40 CFR Part 82, Subpart F.
3. Respondent owns or operates certain affected equipment under Part 82 that contains or contained Ozone Depleting Substances, at facilities identified in Attachment A attached hereto.
4. Respondent shall retrofit or replace the referenced equipment as specified in Attachment A by the date(s) there indicated. Where additional time may be required to complete these actions, application to EPA shall be timely made pursuant to 40 CFR 82.156(i)(7).
5. Within 12 months of this Order, Respondent shall prepare and submit to EPA plans for the conversion of Class II appliances to non-ODS systems, for the appliances identified in Attachment B, attached hereto.
6. Consistent with the Bakery Partnership Agreement entered into between EPA and [the Participating Company], per appliance and per pound penalties shall be calculated and submitted to EPA by July 15, 2003.
7. Pursuant to Section 113(a) of the CAA, failure to comply with this Order may lead to a civil action to obtain compliance or an action for penalties.
Issued this ____ day of ______, 2003
U.S. Environmental Protection AgencyStart Printed Page 63704
8. [Participating Company] consents to the issuance of this Order and further agrees not to contest EPA's authority to issue this Order.
Signed this ____ day of ______, 2003
For [Participating Company]
Annex C—Leak Rate Calculation Sheet for each Appliance—Sample
Beanie Bread/ Plant 4. The Appliance Serial Number 456789 containing 350 pounds full charge of R-22.
The leak rate is calculated by dividing the number of pounds added by the full charge [here 350 pounds].
Then multiply that number by 365 days.
Then divide that number by days since the last add.
Multiply that number by 100 to express it as a percentage, if over 35%.
|Date||lbs added||Days since last add||Leak rate (percent)||Comments|
|Total pounds added since high leak rate=310 pounds × $20 per pound=$6200, the “per pound” penalty.|
Annex D—Certification of Completion and Compliance
I certify, based on personal inspection, that correction of the violations/problems identified as a part of the Bakery Partnership Agreement with the United States Environmental Protection Agency, dated ____, is complete.
I certify that ______, Participating Company, has corrected all violations, and training, recordkeeping, equipment replacement, and all other necessary and prudent measures have been taken to ensure complete compliance with Title VI, Clean Air Act (42 U.S.C. 7671 et seq.).
I certify that the following summary of the actions taken are true and complete:
I certify that I am an officer of ______, Participating Company, and am duly authorized to sign and complete this Certification of Compliance on behalf of Participating Company.
Annex E—Compliance Plan Required Elements for Appliances Containing Greater than 50 pounds of a Class I or Class II substance
A. Each Participating Company will have at least one employee in each facility responsible for ensuring compliance with the refrigerant Compliance Plan.
B. Only technicians certified in accordance with 40 CFR Part 82 will perform refrigerant-related service on refrigerant containing appliances.
C. Technicians will use/ have available for use and use, as required, recycle/recovery equipment certified pursuant to 40 CFR 82.156.
D. Repairs to refrigerant-leaking appliances will be conducted within the time frames outlined in 40 CFR 82.156.
E. Initial verification tests on industrial process equipment will be conducted following any refrigerant-related repairs.
F. Follow-up verification tests on industrial process equipment will be conducted within thirty days of any refrigerant-related repairs.
G. Leak rates will be calculated (a) when refrigerant is added to appliances containing greater than 50 pounds of a class I or class II substance and (b) when the follow-up verification test reveals an unsuccessful repair.
H. Procedures documenting what additional action will be taken as a result of a failed repair will be written.
I. Each Participating Company will maintain the following records in a single location at each facility:
1. An inventory of appliances containing greater than 50 pounds of a class I or class II substance and their refrigerant capacities.
2. A unique identification for each appliance containing greater than 50 pounds of a class I or class II substance.
3. Date the refrigerant-related service is performed on each appliance containing greater than 50 pounds of a class I or class II substance.
4. Type of refrigerant-related service performed on each appliance containing greater than 50 pounds of a class I or class II substance.
5. Amount and type of refrigerant added to each appliance containing greater than 50 pounds of a class I or class II substance.
6. Name of the technician performing work on each appliance containing greater than 50 pounds of a class I or class II substance.
7. A copy of the technician certification card for all technicians performing work.
8. Refrigerant purchase records.
9. A copy of the recycle/recovery equipment owner's certification.
J. Each participant will provide refresher training on the refrigerant compliance program annually for facility personnel responsible for oversight of maintenance and service of refrigerant-containing appliances.
United States Environmental Protection Agency
In the Matter of: [Participating Company] Respondent. Docket No. CAA-HQ-2003-XXX
Consent Agreement and Final Order
I. Preliminary Statement
1. The United States Environmental Protection Agency (“EPA”) and [Participating Company] have entered into a voluntary Bakery Partnership Agreement, pursuant to which an audit of compliance status and self-correction program has been undertaken. It was further agreed by the parties that certain civil penalties would be paid pursuant to the administrative authority of Section 113(d) of the Clean Air Act (“CAA), 42 U.S.C. 7413(d).
2. This Consent Agreement and Final Order [CAFO] is issued pursuant to the authority of 40 CFR 22.13(b), 22.18(b)(2) and (3), which pertain to the quick Start Printed Page 63705resolution and settlement of matters without the filing of a complaint.
3. This Consent Agreement and Final Order resolves the liability for violations that may have been discovered pursuant to an audit of the Respondent's facilities regarding compliance with Title VI of the Clean Air Act, Stratospheric Ozone Protection, and more particularly 40 CFR Part 82, Subpart F, relating to recycling and emissions reductions from appliances containing ozone depleting substances.
II. Consent Agreement
4. As a result of the voluntary audit conducted pursuant to the Bakery Partnership Agreement, EPA and Respondent have agreed to resolve this matter by executing this Consent Agreement.
5. For the purpose of this proceeding, Respondent does not contest the jurisdiction of this tribunal, consents to the assessment of the civil penalty as specified below, and consents to implement the corrective action Plans and Other Conditions, attached hereto.
6. The execution of this Consent Agreement is not an admission of liability by Respondent, and Respondent neither admits nor denies any specific factual allegations contained herein. EPA alleges that one or more of the conditions contained in the attached Summary of Audit Findings constitutes a violation of 40 CFR Part 82.
7. As a complete settlement for all problematic conditions specified in the attached Summary of Audit Findings, Respondent hereby agrees to pay to the United States a civil penalty as specified in the attached Penalty Calculation. EPA agrees to conditionally release Respondent from civil liability for the conditions, and only those conditions, identified in the attached Summary of Audit Findings, except for those appliances that are identified as having been or being converted to non-ozone depleting substances, for which a complete release of civil liability is granted. This release is conditioned upon the satisfactory completion of the Plans and Other Conditions attached hereto, and the timely payment of the civil penalty. Good faith participants in this Partnership Program will receive a release for the period of time prior to September 15, 2000, even though this period may not be audited. The parties agree that the attached Summary of Audit Findings, Penalty Calculation and Plans and Other Conditions are incorporated herein by reference and made a part of this CAFO.
8. Respondent waives its right to request an adjudicatory hearing on any issue addressed in this Consent Agreement.
9. Respondent and EPA represent that they are duly authorized to execute this Consent Agreement and that the parties signing this Agreement on their behalf are duly authorized to bind Respondent and EPA to the terms of this Consent Agreement.
10. Respondent agrees not to claim or attempt to claim a federal income tax deduction or credit covering all or any part of the civil penalty paid to the United States Treasurer.
11. Respondent and EPA stipulate to issuance of the proposed Final Order below.
[Participating Company], Respondent
U.S. Environmental Protection Agency, Complainant
III. Final Order
It Is Hereby Ordered and Adjudged as follows:
12. Respondent shall comply with all terms of the Consent Agreement.
13. For the reasons set forth above, Respondent is hereby assessed a penalty in the amount of $______ .
14. Respondent shall pay the assessed penalty no later than thirty (30) calendar days from the date a conformed copy of this Consent Agreement and Final Order (“CAFO) is received by Respondent.
15. All payments under this CAFO shall be made by certified check or money order, payable to the United States Treasurer, mailed to: U.S. Environmental Protection Agency, (Washington D.C. Hearing Clerk), P.O. Box 360277, Pittsburgh, Pennsylvania 15251-6277. A transmittal letter, indicating Respondent's name, complete address, and this case docket number must accompany the payment. Respondent shall file a copy of the check and of the transmittal letter with the Headquarters Hearing Clerk.
16. Failure to pay the penalty assessed under this CAFO may subject Respondent to a civil action pursuant to Section 113(d)(5) of the CAA, 42 U.S.C. 7413(d)(5), to collect any unpaid portion of the assessed penalty, together with interest, handling charges, enforcement expenses, including attorneys fees, and nonpayment penalties. In any such collection action, the validity, amount, and appropriateness of this order or the penalty assessed hereunder are not subject to review.
a. Interest. Any unpaid portion of the assessed penalty shall bear interest at the rate established pursuant to 26 U.S.C. 6621(a)(2) from the date a conformed copy of this CAFO is received by Respondent; provided, however, that no interest shall be payable on any portion of the assessed penalty that is paid within 30 days of the date a copy of this CAFO is received by Respondent.
b. Attorney Fees, Collection Costs, Nonpayment Penalty. Pursuant to 42 U.S.C. 7413(d)(5), should Respondent fail to pay on a timely basis the amount of the assessed penalty, Respondent shall be required to pay, in addition to such penalty and interest, the United States' enforcement expenses, including but not limited to attorney fees and costs incurred by the United States for collection proceedings, and a quarterly nonpayment penalty for each quarter during which such failure to pay persists. Such nonpayment penalty shall be ten percent of the aggregate amount of Respondent's outstanding penalties and nonpayment penalties accrued from the beginning of such quarter.
18. This document constitutes an “enforcement response” as that term is used in the CAA Penalty Policy for the purposes of determining Respondent's “full compliance history” as provided in Section 113(e) of the CAA, 42 U.S.C. 7413(e).
19. Each party shall bear its own costs, fees, and disbursements in this action.
20. The provisions of this CAFO shall be binding on Respondent, its officers, directors, employees, agents, servants, authorized representatives, successors and assigns.
It Is So Ordered.
Dated this ____ day of ______, 1999.
Environmental Appeals Judge
Environmental Appeals Board
U.S. Environmental Protection Agency
Certificate of Service
I certify that the forgoing Consent Agreement and Final Order was sent to the following persons, in the manner specified, on the date below:
Original hand-delivered: Eurika Durr, EAB Hearing Clerk, U.S. Environmental Protection Agency, Mail Code 1103B, 607 14th Street NW., Suite 500, Washington, DC 20005
Copy by certified mail, return receipt requested:Start Printed Page 63706
______ Registered Agent for
[Participating Company's address]
Sample Summary of Findings
Annex C—Leak Rate Calculation Sheet for each Appliance—Sample
Marvy Bread/Plant 4. The Appliance Serial Number 456789 containing 350 pounds full charge of R-22.
The leak rate is calculated by dividing the number of pounds added by the full charge [here 350 pounds].
Then multiply that number by 365 days.
Then divide that number by days since the last add.
Multiply that number by 100 to express it as a percentage, if over 35%.
|Date||lbs added||days since last add||Leak rate (percent)||Comments|
|Total pounds added since high leak rate = 310 pounds × $20 per pound = $6200, the “per pound” penalty.|
Technician Certifications for two technicians, Joe Jones and Sam Spade, at Plant 4 were missing.
Those certifications are now on file.
Service records before September 2000 were missing.
Sample Penalty Calculation
Marvy Bread Plant 4 The Appliance Serial Number 456789 containing 350 pounds full charge of R-22.
Per pound penalty: $6,200—waived as this machine is being converted to non-ODS.
Per appliance penalty: 10,000.
Total Penalty: 10,000.
Sample Plans and Other Conditions
Beanie Bread agrees to convert the Bun Mixer at Plant 4, Serial Number 45678, to a non-ODS system.
Completion date: July 30, 2004.
Beanie Bread agrees to develop a computer based recordkeeping program to ensure that complete and accurate records are retained as required.
Completion date: September 30, 2003.End Supplemental Information
[FR Doc. 01-30459 Filed 12-7-01; 8:45 am]
BILLING CODE 6560-50-P