“Natural” Refrigeration Facilities Face EPA Enforcement Under the Clean Air Act

Clark Hill PLC

Recent U.S. Environmental Protection Agency (EPA) enforcement cases against operators of ammonia refrigerant facilities highlight an imminent compliance obligation and new enforcement risk for operators of refrigeration equipment that use non-HFC refrigerant chemicals (e.g., see EPA Press Release here). Ammonia and other “natural refrigerant” chemicals have long been used in large-scale industrial freezers as alternatives to Hydrofluorocarbons (HFCs and CHFCs). HFCs are being phased out or banned due to their extremely high Global Warming Potential and damage to stratospheric ozone. Thus, smaller industrial and commercial facilities (e.g., distribution warehouses and grocery stores) will need to retrofit or replace HFC systems with ammonia and other non-HFC refrigerant fluids and gases.

Depending on volumes stored or used (and due to acute toxicity, flammability, and suffocation risks), ammonia and other “natural” refrigerant operations are subject to EPA regulation and enforcement under various Clean Air Act programs. The EPA Risk Management Program (40 CFR Part 68, or “RMP”), requires facilities that use or store large volumes of extremely hazardous chemicals (e.g., ammonia at > 10,000 lbs.) to create comprehensive site-specific risk management and release prevention programs. The growing substitution of ammonia for HFCs suggests that prior HFC users which have never faced or complied with RMP obligations will become subject to the RMP and therefore, increased scrutiny by EPA.

Although not subject to the RMP rules, smaller ammonia facilities (i.e., <10,000 lbs.) are still subject to the General Duty Clause under the Clean Air Act Section 112(r) requiring them to implement hazard assessment techniques, to design and maintain a safe facility, to take such steps as are necessary to prevent releases and to minimize the consequences of accidental releases. A facility’s obligations under the GDC are separate from and in addition to any RMP obligations under the Part 68 regulations. The GDC applies facility-wide, regardless of the amount of hazardous chemical stored and applies to several chemicals, not just those subject to the RMP regulations.

Given EPA’s continued focus on ammonia users, companies that become subject to RMP and GDC requirements, particularly companies that produce, store, and use natural refrigerants, should evaluate their operations to ensure that they are in compliance. 

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Clark Hill PLC

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