Title of Regulation: 9VAC5-145. Regulations for Control of Greenhouse Gases (Rev. D20) (adding 9VAC5-145-100 through 9VAC5-145-150).

Statutory Authority: § 10.1-1308 of the Code of Virginia.

Effective Date: June 1, 2021.

Agency Contact: Gary Graham, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4103, FAX (804) 698-4178, or email gary.graham@deq.virginia.gov.

Summary:

Pursuant to Item 378 B of Chapter 1289 of the 2020 Acts of Assembly and Chapter 56 of the 2020 Acts of Assembly, Special Session I, the amendments incorporate by reference the prohibitions and restricted end-uses of 40 CFR Part 82, Subpart G, Appendices U and V and provide exemptions for (i) sell-through and use of products and equipment manufactured prior to the compliance dates in the regulation that are required by the federal American Innovation and Manufacturing Act of 2020 and (ii) extruded polystyrene boardstock products and equipment manufactured in Virginia intended only for sale and distribution outside of Virginia.

Chapter 145

Regulations for Control of Greenhouse Gases

9VAC5-145-100. Applicability, prohibitions, and exemptions.

A. The sale, lease, rent, installation, or entry into commerce in the Commonwealth of Virginia by any person of any products or equipment that use or will use hydrofluorocarbons for the applications and end-uses restricted by Appendix U and Appendix V of Subpart G of 40 CFR Part 82, as those read on January 3, 2017, is prohibited after the effective date specified in 9VAC5-145-120.

B. Except where an existing system is retrofitted, nothing in this chapter requires a person that acquired prior to the effective date of the restrictions specified in 9VAC5-145-120, a product or equipment containing a substance prohibited under this chapter, to cease use of that product or equipment.

C. The prohibitions of this chapter do not apply to products or equipment in specific applications and end-uses restricted by Appendix U and Appendix V of Subpart G of 40 CFR Part 82, as those read on January 3, 2017, that were manufactured prior to the effective date of the restrictions specified in 9VAC5-145-120.

D. Notwithstanding subsection A of this section, the uses of hydrofluorocarbons specified in subdivisions 1 and 2 of this subsection are exempt from the prohibitions for the applications and end-uses restricted by Appendix U and Appendix V of Subpart G of 40 CFR Part 82, as those read on January 3, 2017.

1. This chapter does not restrict the use of hydrofluorocarbons in the manufacturing process by extruded polystyrene boardstock and billet manufacturers located in the Commonwealth of Virginia to produce products for sale and distribution outside of the Commonwealth, as long as the manufacturer and the distributors of that product can demonstrate (i) that the extruded polystyrene boardstock or billet product is intended for distribution and sale, lease, rental, installation, or entry into commerce outside of the Commonwealth of Virginia and (ii) that the manufacturer and distributors have taken reasonable precautions to assure that the extruded polystyrene boardstock or billet product is not distributed within the Commonwealth for sale, lease, rental, installation, or entry into commerce. This exemption does not apply to extruded polystyrene boardstock or billet products that are sold, leased, rented, installed, or otherwise entered into commerce by any person to retail outlets within the Commonwealth. This exemption shall expire on the date specified in 9VAC5-145-130 B.

2. This chapter does not restrict the management or use of a regulated substance for which the Administrator of the U. S. Environmental Protection Agency has provided a mandatory allocation of allowances pursuant to Section 103 (e)(4)(B)(iv)(I) of the American Innovation and Manufacturing Act of 2020 in Division S, Innovation for the Environment, of the Consolidated Appropriations Act, 2021 (H.R. 133 (116th)) for the exclusive use in applications solely for:

a. A propellant in metered dose inhalers;

b. Defense sprays;

c. Structural composite preformed polyurethane foam for marine use and trailer use;

d. The etching of semiconductor material or wafers and the cleaning of chemical vapor deposition chambers within the semiconductor manufacturing sector;

e. Mission-critical military end-uses, such as armored vehicle engine and shipyard fire suppression systems and systems used in deployable and expeditionary applications; and

f. Onboard aerospace fire suppression.

3. The exemption in subdivision 2 of this subsection shall expire on December 28, 2025, or in the event the Administrator of the U.S. Environmental Protection Agency has extended providing the allocation of allowances for certain essential uses pursuant to Section 103 (e)(4)(B)(v)(II) of the American Innovation and Manufacturing Act of 2020 in Division S, Innovation for the Environment, of the Consolidated Appropriations Act, 2021 (H.R. 133 (116th)) to the date that extension ends, whichever is later.

E. The provisions of this chapter apply throughout the Commonwealth of Virginia.

9VAC5-145-110. Definitions.

A. For the purpose of applying this chapter and the prohibitions on hydrofluorocarbons for the applications and end-uses restricted by Appendix U and Appendix V of Subpart G of 40 CFR Part 82, as those read on January 3, 2017, the words or terms shall have the meanings given them in subsection C of this section.

B. As used in this chapter, all terms not defined in this section shall have the meanings given them in 9VAC5-10, General Definitions, unless otherwise required by context.

C. Terms defined.

"Aerosol propellant" means a liquefied or compressed gas, used in whole or in part, such as a cosolvent, to expel a liquid or other material from the same self-pressurized container or from a separate container.

"Air conditioning equipment" means chillers, both centrifugal chillers and positive displacement chillers, intended for comfort cooling of occupied spaces.

"Application" means a specific use within a major industrial sector end-use.

"Bunstock" means a large solid block-like structure formed during the production of polyurethane, polyisocyanurate, phenolic, or polystyrene insulation.

"Capital cost" means an expense incurred in the production of goods or in rendering services, including the cost of engineering, purchase, and installation of components or systems, and instrumentation; and contractor and construction fees.

"Centrifugal chiller" means air conditioning equipment that utilizes a centrifugal compressor in a vapor-compression refrigeration cycle typically used for commercial comfort air conditioning, but not for cooling for industrial process cooling and refrigeration.

"Class I substance" means any ozone-depleting compound defined in the Clean Air Act, 42 USC § 7671(3).

"Class II substance" means any ozone-depleting compound defined in the Clean Air Act, 42 USC § 7671(4).

"Cold storage warehouse" means a cooled facility designed to store meat, produce, dairy products, and other products delivered to other locations for sale to the ultimate consumer.

"Component" means a part of a refrigeration system, including condensing units, compressors, condensers, evaporators, and receivers, and all of its connections and subassemblies, without which the refrigeration system will not properly function or will be subject to failures.

"Cumulatively replaced" means the addition of or change in multiple components within a three-year period.

"Effective date" means the date after which new or retrofit equipment or products are prohibited, where applicable.

"End-use" means processes or classes of specific applications within industry sectors listed in Appendix U and Appendix V of Subpart G of 40 CFR Part 82, as those read on January 3, 2017.

"Flexible polyurethane" means a nonrigid synthetic foam containing polymers created by the reaction of isocyanate and polyol, including that used in furniture, bedding, and chair cushions.

"Foam" means a product with a cellular structure formed via a foaming process in a variety of materials that undergo hardening via a chemical reaction or phase transition.

"Foam blowing agent" means substance that functions as a source of gas to generate bubbles or cells in the mixture during the formation of foam.

"Foam system" means a multipart liquid material that expands when mixed to form a solid or flexible substance in which thin films of material separate pockets of gas.

"Greenhouse gases" means, for the purposes of this chapter, the aggregate group of the following gases: carbon dioxide, nitrous oxide, methane, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride.

"Household refrigerators and freezers" means refrigerators, refrigerator-freezers, freezers, and miscellaneous household refrigeration appliances intended for residential use. For the purposes of this chapter, the definition of household refrigerators and freezers does not include household refrigerators and freezers - compact or household refrigerators and freezers - built-in.

"Household refrigerators and freezers - built-in" means refrigerators, refrigerator-freezers, and freezers intended for residential use with 7.75 cubic feet or greater total volume and 24 inches or less depth not including doors, handles, and custom front panels; with sides that are not finished and not designed to be visible after installation; and designed, intended, and marketed exclusively to be installed totally encased by cabinetry or panels that are attached during installation and securely fastened to adjacent cabinetry, walls, or floor and equipped with an integral factory-finished face or to accept a custom front panel.

"Household refrigerators and freezers - compact" means refrigerators, refrigerator-freezers, and freezers intended for residential use with a total refrigerated volume of less than 7.75 cubic feet (220 liters).

"Hydrofluorocarbon" or "HFC" means a class of greenhouse gases that are saturated organic compounds containing hydrogen, fluorine, and carbon.

"Integral skin polyurethane" means a synthetic self-skinning foam containing polyurethane polymers formed by the reaction of an isocyanate and a polyol, including those used in car steering wheels and dashboards.

"Manufacturer" means a 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.

"Metered dose inhaler" or "MDI" means a device that delivers a measured amount of medication as a mist that a patient can inhale, typically used for bronchodilation to treat symptoms of asthma, chronic obstructive pulmonary disease (COPD), chronic bronchitis, emphysema, and other respiratory illnesses. A MDI consists of a pressurized canister of medication in a case with a mouthpiece.

"Mixture" means a blend of two or more compounds.

"New" means:

1. Products or equipment that are manufactured after June 1, 2021;

2. Products or equipment that are first installed for an intended purpose with new or used components;

3. Products or equipment that are expanded by the addition of components to increase system capacity after June 1, 2021; or

4. Products or equipment replaced or cumulatively replaced such that the cumulative capital cost after June 1, 2021, of replacement exceeds 50% of the capital cost of replacing the whole system.

"Phenolic insulation board" means boards, blocks or other shapes fabricated with phenolic foam.

"Polyolefin" means the foam sheets and tubes made of polyolefin, a macromolecule formed by the polymerization of olefin monomer units.

"Polystyrene extruded boardstock and billet" means a foam formed from predominantly styrene monomer and produced on extruding machines in the form of continuous foam slabs that can be cut and shaped into panels and used for roofing, walls, flooring, and pipes.

"Polystyrene extruded sheet" means polystyrene foam, including that used for packaging, buoyancy or floatation and food-service items such as hinged polystyrene containers (for take-out from restaurants), food trays (meat and poultry) plates, bowls, and retail egg containers.

"Polyurethane" means a polymer formed principally by the reaction of an isocyanate and a polyol, including polyisocyanurate (polyiso).

"Positive displacement chiller" means vapor compression cycle chillers that use positive displacement compressors and are typically used for commercial comfort air conditioning. For the purpose of this chapter, positive displacement chiller does not include cooling for industrial process cooling and refrigeration.

"Refrigerant" or "refrigerant gas" means any substance, including blends and mixtures, that is used for heat transfer purposes.

"Refrigerated food processing and dispensing equipment" means retail food refrigeration equipment that is designed to process and dispense food and beverages that are intended for immediate or near-immediate consumption, including chilled and frozen beverages, ice cream, and whipped cream. This end-use excludes water coolers and units designed solely to cool and dispense water.

"Refrigeration equipment" means any stationary device that is designed to contain and use refrigerant gas to establish or maintain colder than ambient temperatures in a confined space, including retail or commercial refrigeration equipment, household refrigerators and freezers, and cold storage warehouses.

"Remote condensing units" means retail refrigeration equipment or units that have a central condensing portion and may consist of one or more compressors, condensers, and receivers assembled into a single unit, which may be located external to the sales area. The condensing portion and often other parts of the system are located outside the space or area cooled by the evaporator. Remote condensing units are commonly installed in convenience stores, specialty shops (e.g., bakeries, butcher shops), supermarkets, restaurants, and other locations where food is stored, served, or sold.

"Residential use" means use by a private individual of a substance, or a product containing the substance, in or around a permanent or temporary household, during recreation, or for any personal use or enjoyment. Use within a household for commercial or medical applications is not residential use, nor is use in automobiles, watercraft, or aircraft.

"Retail food refrigeration" or "commercial refrigeration" means equipment designed to store and display chilled or frozen goods for commercial sale, including stand-alone units, refrigerated food processing and dispensing equipment, remote condensing units, supermarket systems, and vending machines.

"Retrofit" means the replacement of the refrigerant used in refrigeration equipment with a different refrigerant and any related changes to the refrigeration equipment required to maintain its operation and reliability following refrigerant replacement.

"Rigid polyurethane and polyisocyanurate laminated boardstock" means laminated board insulation made with polyurethane or polyisocyanurate foam, including that used for roofing and walls but not including rigid polyurethane appliance foam, rigid polyurethane commercial refrigeration and sandwich panels, rigid polyurethane marine flotation foam, rigid polyurethane spray foam, and rigid polyurethane one-component foam sealants.

"Rigid polyurethane appliance foam" means polyurethane insulation foam in household appliances.

"Rigid polyurethane commercial refrigeration and sandwich panels" means polyurethane foam used to provide insulation in walls and doors, including that used for commercial refrigeration equipment, and used in doors, including garage doors.

"Rigid polyurethane high-pressure two-component spray foam" means a liquid polyurethane foam system sold as two parts (i.e., A-side and B-side) in nonpressurized containers that is field or factory applied in situ using high-pressure proportioning pumps at 800 to 1,600 pounds per square inch (psi) and an application gun to mix and dispense the chemical components.

"Rigid polyurethane low-pressure two-component spray foam" means a liquid polyurethane foam system sold as two parts (i.e., A-side and B-side) in containers that are pressurized to less than 250 psi during manufacture of the system for application without pumps and are typically applied in situ relying upon a liquid blowing agent or gaseous foam blowing agent that also serves as a propellant.

"Rigid polyurethane marine flotation foam" means buoyancy or flotation polyurethane foam used in boat and ship manufacturing for both structural and flotation purposes.

"Rigid polyurethane one-component foam" means a polyurethane foam generally packaged in aerosol cans that is applied in situ using a gaseous foam blowing agent that is also the propellant for the aerosol formulation.

"Rigid polyurethane slabstock and other" means a rigid closed-cell polyurethane foam formed into slabstock insulation for panels and fabricated shapes for pipes and vessels.

"Stand-alone low-temperature unit" means a stand-alone unit that maintains food or beverages at temperatures at or below 32°F (0°C).

"Stand-alone medium-temperature unit" means a stand-alone unit that maintains food or beverages at temperatures above 32°F (0°C).

"Stand-alone unit" means retail refrigerators, freezers, and reach-in coolers (either open or with doors) where all refrigeration components are integrated and the refrigeration circuit may be entirely brazed or welded. These systems are charged with refrigerant at the factory and typically require only an electricity supply to begin operation.

"Substance" means any chemical, product substitute, or alternative manufacturing process, whether new or retrofit, intended for use in the end-uses listed in Appendix U and Appendix V of Subpart G of 40 CFR Part 82, as those read on January 3, 2017.

"Substitute" means a chemical, product replacement, or alternative manufacturing process, whether new or retrofit, that is used to perform a function previously performed by a class I substance or class II substance.

"Supermarket systems" means multiplex or centralized retail food refrigeration equipment systems designed to cool or refrigerate, which typically operate with racks of compressors installed in a machinery room and which includes both direct and indirect systems.

"Use" means any utilization of any substance, including utilization in a manufacturing process or product in the Commonwealth of Virginia, consumption by the end-user in the Commonwealth, or in intermediate applications in the Commonwealth, such as formulation or packaging for other subsequent applications. For the purposes of this chapter, use excludes residential use, but it does not exclude manufacturing for the purpose of residential use.

"Vending machine" means a self-contained unit that dispenses goods that must be kept cold or frozen.

9VAC5-145-120. Compliance.

A. Unless otherwise specified in this chapter, no owner or other person shall engage in or permit the manufacture, sale, lease, rental, installation, or entry into commerce in Virginia of any equipment or product in violation of prohibitions prescribed under this chapter after the effective date of the prohibition.

B. The effective date of the prohibitions in Appendix U and Appendix V of Subpart G of 40 CFR Part 82, as those read on January 3, 2017, shall be January 1, 2022, unless a later effective date is specified in those appendices or in 9VAC5-145-130.

C. Nothing in this chapter shall preclude the department's use of any credible evidence or information in determining whether a person is in compliance with the applicable requirements.

9VAC5-145-130. Special provisions applicable to extruded polystyrene boardstock and billet manufacturers.

A. Extruded polystyrene boardstock and billet manufacturers located in the Commonwealth of Virginia that manufacture on and after January 1, 2022, in accordance with 9VAC5-145-100 D using hydrofluorocarbons prohibited in Appendix U and Appendix V of Subpart G of 40 CFR Part 82, as those read on January 3, 2017, shall comply with the following requirements:

1. Submit a compliance date feasibility study to the department no later than January 1, 2022, that contains a compliance schedule for meeting the prohibition on the use of hydrofluorocarbons prohibited in Appendix U and Appendix V of Subpart G of 40 CFR Part 82, as those read on January 3, 2017, in the manufacturing process for extruded polystyrene boardstock and billet.

2. The compliance date feasibility study shall be prepared in a manner acceptable to the department.

3. The compliance date feasibility study may contain a mitigation action plan for reducing HFC emissions in the Commonwealth of Virginia from January 1, 2022, until the prohibition compliance date recommended in the compliance date feasibility study required in subdivision 1 of this subsection. The mitigation action plan may detail and describe HFC mitigation efforts whether planned or implemented at the manufacturing facility, including dates of completion for any planned efforts.

B. Notwithstanding the requirements of subsection A of this section, extruded polystyrene boardstock and billet manufacturers located in the Commonwealth of Virginia shall be prohibited from using hydrofluorocarbons prohibited in Appendix U and Appendix V of Subpart G of 40 CFR Part 82, as those read on January 3, 2017, in the manufacturing process for extruded polystyrene boardstock and billet on and after January 1, 2036.

9VAC5-145-140. Labeling and administrative requirements.

A. As of January 1, 2022, except for acceptable uses listed in Appendix U and Appendix V of Subpart G of 40 CFR Part 82, as those read on January 3, 2017, any person that manufactures for sale or entry into commerce in the Commonwealth of Virginia, products or equipment in the air-conditioning, refrigeration, foam, or aerosol propellant end-uses listed in those appendices, shall provide a written disclosure to the buyer.

1. For motor-bearing refrigeration and air-conditioning equipment that is neither factory-charged nor pre-charged with refrigerant, the required disclosure or label shall state: "This equipment is prohibited from using any substance on the 'List of Prohibited Substances' for that specific end-use, in accordance with state regulations for hydrofluorocarbons."

2. Except for products and equipment with existing labeling required by state building codes and safety standards that contain the information required in subdivisions 2 a and 2 b of this subsection, for refrigeration and air-conditioning equipment that are factory-charged or pre-charged with a hydrofluorocarbon or hydrofluorocarbon blend the required disclosure or label shall include:

a. The date of manufacture; and

b. The refrigerant and foam blowing agent that the product or equipment contains.

3. For foam products, the disclosure or label shall include one of the following alternatives:

a. The date of manufacture and either:

(1) Identification of the foam blowing agent that the product contains; or

(2) A reference to a Safety Data Sheet (complying with 29 CFR 1910.1200 requirements), provided that the Safety Data Sheet identifies the foam blowing agent the product contains; or

b. The statement "Where sold, compliant with state HFC regulations."

4. For aerosol propellants, the disclosure or label shall include one of the following alternatives:

a. The date of manufacture and either:

(1) Identification of the aerosol propellant that the product contains; or

(2) A reference to a Safety Data Sheet (complying with 29 CFR 1910.1200 requirements), provided that the Safety Data Sheet identifies the propellant that the product contains; or

b. The statement "Where sold, compliant with state HFC regulations."

B. If not combined with a written disclosure statement required by another jurisdiction, the written disclosure shall include the following statement signed by an authorized representative of the manufacturer: "I certify under penalty of law that the statements and information submitted in this document are to the best of my knowledge and belief true, accurate, and complete."

C. The manufacturer may substitute a date code representing the date of manufacture for the date of manufacture required in subsection A of this section.

9VAC5-145-150. Records and reporting.

A. As of January 1, 2022, any person that manufactures any product or equipment for the applications and end-uses listed in Appendix U and Appendix V of Subpart G of 40 CFR Part 82, as those read on January 3, 2017, for sale, lease, rental, installation, or entry into commerce in the Commonwealth of Virginia shall keep and maintain for five years records of the following information:

1. The date of manufacture of the equipment or product;

2. The refrigerant, aerosol propellant, and foam blowing agent blend that the equipment or product is designed to use;

3. The refrigerant, aerosol propellant, and foam blowing agent in the equipment or product; and

4. Information sufficient to demonstrate that the product or equipment does not contain any substances prohibited or restricted for the applications and end-uses listed in Appendix U and Appendix V of Subpart G of 40 CFR Part 82, as those read on January 3, 2017, or that the product is exempt in accordance with 9VAC5-145-110.

B. As of January 1, 2022, any person who manufactures any product or equipment for the applications and end-uses listed in Appendix U and Appendix V of Subpart G of 40 CFR Part 82, as those read on January 3, 2017, for sale, lease, rental, installation, or entry into commerce in the Commonwealth of Virginia shall make the required records available to the department upon request.

C. If a manufacturer uses a date code to meet disclosure or labeling requirements in 9VAC5-145-140 A, the manufacturer shall provide an explanation of the date code to the department upon request.

DOCUMENTS INCORPORATED BY REFERENCE (9VAC5-145)

40 CFR Part 82 Subpart G Appendix U effective on January 3, 2017

40 CFR Part 82 Subpart G Appendix V effective on January 3, 2017