DEPARTMENT OF ECOLOGY
[Order 19-04—Filed October 20, 2020, 9:28 a.m., effective October 20, 2020, 9:28 a.m.]
Effective Date of Rule: Immediately upon filing.
Purpose: Ecology is adopting the fifth emergency rule, chapter 173-443 WAC, Hydrofluorocarbons (HFCs), to establish requirements to reduce greenhouse gases in Washington by moving to the phased use of less damaging HFCs or acceptable substitutes.
The emergency rule requires manufacturers, importers, and distributors to notify ecology about their products and equipment containing HFCs and other substitutes. The initial deadline was December 31, 2019. More notifications are due when new restrictions apply between 2020 and 2024.
We changed the restriction deadline for vending machines from January 1, 2020, to January 1, 2022, in the first emergency rule. We continue to adopt the 2022 date because we determined that the new date reduces the overall risk to human health or the environment. It also reflects the earliest date that a lower risk substitute is potentially available as allowed by RCW 70A.45.080
The emergency rule will be in effect for up to one hundred twenty days starting October 20, 2020, replacing the one adopted on June 25, 2020. The rule will expire when the permanent rule, chapter 173-443 WAC, becomes effective.
We updated the rule to reflect the new chapter number of the law as directed by legislation in 2020.
Ecology adopted the following emergency rules:
|•||First emergency rule: July 30, 2019 (WSR 19-16-059).|
|•||Second emergency rule: November 21, 2019 (WSR 19-24-005).|
|•||Third emergency rule: March 16, 2020 (WSR 20-07-076).|
|•||Fourth emergency rule: June 25, 2020 (WSR 20-14-041).|
Ecology began a rule-making process for the permanent adoption of the rule when we filed the first emergency rule. We will continue to adopt an emergency rule until the permanent rule takes effect.
Please visit our website for information and to participate in the rule-making process: https://ecology.wa.gov/Regulations-Permits/Laws-rules-rulemaking/Rulemaking/WAC173-443.
Citation of Rules Affected by this Order: New chapter 173-443 WAC, Hydrofluorocarbons (HFCs).
Statutory Authority for Adoption: Chapter 284, Laws of 2019 (ESSHB [E2SHB] 1112); and chapter 70A.45
RCW, Limiting greenhouse gas emissions.
Under RCW 34.05.350
the agency for good cause finds that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.
Reasons for this Finding: Chapter 284, Laws of 2019 (ESSHB [E2SHB] 1112) was signed into law on May 7, 2019. The law amends chapter 70A.45
RCW. It establishes a deadline of December 31, 2019, for manufacturers, importers, and distributors of products and equipment containing HFCs to submit an initial report to ecology. It also sets restriction deadlines for specific end-use categories. This rule establishes the method to notify ecology by the deadlines.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 1, Amended 0, Repealed 0.
Number of Sections Adopted at the Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's own Initiative: New 7, Amended 0, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.
Number of Sections Adopted using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
Date Adopted: October 20, 2020.
Chapter 173-443 WAC
WAC 173-443-010Policy and purpose.
(1) It is the policy of the department of ecology (ecology) under the authority vested in it by chapter 43.21A
RCW to provide for the systematic control of air pollution from air contaminant sources and for the proper development of the state's natural resources.
(2) As authorized by chapter 284, Laws of 2019 (E2SHB 1112, Hydrofluorocarbon greenhouse gas emissions), it is the purpose of this chapter to establish the requirements for the transition to the use of less damaging hydrofluorocarbons or suitable substitutes in various applications in Washington in a manner similar to regulations adopted by the Environmental Protection Agency, and that have been subsequently adopted or will be adopted in other states.
"Manufacturer" means the same as defined in chapter 284, Laws of 2019: Any person, firm, association, partnership, corporation, governmental entity, organization, or joint venture that produces any product that contains or uses hydrofluorocarbons or is an importer or domestic distributor of such a product.
"Product class" means the same as end-use, as defined in Subpart G of 40 C.F.R. Part 82, as it read on January 3, 2017: Processes or classes of specific applications within major industrial sectors where a substitute is used to replace an ozone-depleting substance.
WAC 173-443-030Manufacturer notification.
(1) The manufacturer of products that contain or use hydrofluorocarbons or other restricted substitutes under chapter 284, Laws of 2019, or a trade organization on behalf of its member manufacturers, must report to the department consistent with WAC 173-443-040 and 173-443-050.
(2) It is only necessary for one person or entity to report with respect to a particular product that contains or uses hydrofluorocarbons or other restricted substitutes under chapter 284, Laws of 2019.
(3) In the event of a failure by at least one person to provide a complete, accurate and timely report for a product within a product class, ecology will require information from manufacturers associated with a product in the following order of precedence:
(a) The person or entity that had the product manufactured, unless it has no presence in the United States.
(b) The person or entity that marketed the product under its name or trademark, unless it has no presence in the United States.
(c) The first person or entity, whether an importer or a distributor, that owned the product in the United States.
(d) This hierarchy in no way limits the liability of any manufacturer as defined in subsection (2) of this section associated with a product from enforcement under chapter 284, Laws of 2019, or rules promulgated thereunder.
WAC 173-443-040Initial notification.
(1) By December 31, 2019, each manufacturer or its representative must provide ecology an initial status notification of the status of products within each product class using hydrofluorocarbons or other substitutes covered under chapter 284, Laws of 2019. This must include all covered products that the manufacturer offers for sale, leases, rents, or installs in Washington. All manufacturers must notify ecology by completing and submitting ecology's notification form. The current version of the form may be obtained at ecology's web site.
(2) Using a form provided by ecology, this initial status notification must include:
(a) Contact information on the manufacturer.
(b) The name of the party authorized to represent the manufacturer for purposes of providing initial status notifications and status updates.
(c) All product classes that are applicable to the manufacturer.
(d) Which hydrofluorocarbons or other substitutes are being used by products within each product class applicable to the manufacturer.
(e) Signature and certification by the authorized representative for the manufacturer.
WAC 173-443-050Status update notification.
Within one hundred twenty days after the date of a restriction put in place by chapter 284, Laws of 2019, each manufacturer affected by the restriction or its representative must provide ecology with an updated status notification using ecology's form. This notification must include:
(1) Whether the manufacturer has ceased the use of hydrofluorocarbons or substitutes restricted under chapter 284, Laws of 2019 within each product class.
(2) What, if any, hydrofluorocarbons or other restricted substitutes remain in use.
(3) Updated responses on all information requested in the initial status notification under WAC 173-443-040.
WAC 173-443-060Restriction modification.
The product class restriction for new and existing vending machines is modified to January 1, 2022, based on ecology's determination, in accordance with RCW 70A.45.080
If any provision of the rule or its application to any covered party, person, or circumstance is held invalid, the remainder of the rule or application of the provision to other covered parties, persons, or circumstances is not affected.