August 16, 1993 Mr. Robert B. Broughton Attorney at Law
P. O. Drawer 19764 Raleigh, North Carolina 27619-9764
Re: Advisory Opinion; State Board of Refrigeration Examiners; Authority to Adopt Regulations Relating to Certification Requirements of the Environmental Protection Agency Pursuant to the Federal Clean Air Act of 1990
Dear Mr. Broughton:
I reply to your letter of August 4 requesting our opinion whether the State Board of Refrigeration Examiners has the authority to adopt reasonable rules and regulations requiring all commercial refrigeration contractors to comply with the new Environmental Protection Agency (EPA) requirements. For reasons which follow, we believe that the State Board of Refrigeration Examiners has the authority to adopt reasonable rules and regulations to assure compliance with EPA requirements.
The new EPA regulations mandate that all commercial refrigeration contractors and technicians be certified to handle refrigerants by November 1, 1994. After November 1, 1994, in order for a commercial refrigeration contractor to purchase refrigerants he must first produce to the supplier a license indicating that he in fact has been certified to handle refrigerants as required by EPA. We have reviewed the EPA regulations in depth, and before proceeding will share our review with you.
BACKGROUND
Section 608(a) of the 1990 Federal Clean Air Act, 42 U.S.C. § 7671g(a), requires the EPA Administrator to promulgate regulations "establishing standards and requirements regarding use and disposal" of chlorofluorocarbons (CFCs) and related compounds "during service, repair, or disposal of appliances and industrial process refrigeration." EPA published the required regulations in 58 Fed. Reg. 28660, et seq., (May 14, 1993), which are codified at 40 C.F.R. Part
82. The regulations establish certification requirements for certain categories of refrigeration technicians, which are discussed more fully below. Copies of the pertinent portions of the rule and the statute are attached.
The regulation requires that technicians who maintain, service, repair or dispose of refrigeration appliances–other than motor vehicle air conditioners, which are treated separately–must be certified by an EPA-approved technician certification program no later than November 14, 1994. 40 C.F.R. 82.161(a) [58 Fed. Reg. 28718]. The regulation specifies four different certification classifications, depending upon the type of refrigeration equipment involved. 40 C.F.R. 82.161(a)(1)-(4) [58 Fed. Reg. 28718]. The rule contains a grandfather clause for persons previously certified by existing programs which receive EPA approval. This provision is limited to programs which receive EPA approval. This provision is limited to programs which meet all promulgated standards for EPA approval. 40 C.F.R. 82.161(c)(1)-(4) [58 Fed. Reg. 28718-9].
40 C.F.R. 82.161(c) [58 Fed. Reg. 28718] governs EPA approval of technician certification programs. Persons (who are defined at 40 C.F.R. 82.152(o) [58 Fed. Reg. 28713] to include states, municipalities and political subdivisions of states) seeking approval of technician certification programs must submit verification to EPA that the program meets the standards specified in the regulation. These standards are set our in Appendix D to 40 C.F.R. Part 82 {58 Fed. Reg. 28733-34], with additional requirements at 40 C.F.R. 82.161(c)(1)-(4) [58 Fed. Reg. 28718-9].
Generally, those standards include requiring the applicant to pass a closed-book, proctored examination consisting of questions from an EPA test bank. The program must inform applicants of their scores no later than 30 days after the test and within the same interval must issue a standard wallet-sized identification card to those who pass. The program must keep certain specified records, including names and addresses of applicants and test scores, for at least three years, and send "activity reports" to EPA every six months. Programs are subject to periodic inspection by EPA. Programs may charge reasonable fees for administration of tests. 40 C.F.R. Part 82, App. D [58 Fed. Reg. 28733].
EPA has prioritized its review of applications for program certification based on the geographic scope of the program. Those priorities are: (1) minimum of 25 testing centers in at least 8 states;
(2) "regional networks" with a minimum of 10 testing centers; (3) isolated areas not sufficiently covered by national or regional programs; (4) all other programs. A state-wide program administered through the community college program in at least ten counties should fall within the second category.
Applications for program approval should be sent to:
Section 608 Recycling Program Manager Stratospheric Protection Division 6205-J
U.S. Environmental Protection Agency 401 M Street, S.W. Washington, D. C. 20460
40 C.F.R. 82161(c)(1)-(4) [58 Fed. Reg. 28718-9]. EPA has also established a Stratospheric Ozone Information Hotline at 1-800-296-1996, which provides additional information to persons seeking to establish programs. Sample applications may be requested through the Hotline. The name of the EPA contact is Debbie Oettinger, Program Information Branch, Stratospheric Protection Division, telephone: (202) 233-9200. Her address is the same as above.
DISCUSSION
The North Carolina Department of Community Colleges is in the process of developing a refrigeration certification preparation course with the exam being administered immediately following each course. The course and exam would be offered at various community colleges. The Department has indicated its desire to cooperate with the State Board of Refrigeration Examiners in connection with the certification of those taking the course and passing the exam.
The State Board of Refrigeration Examiners desires to be of assistance to the commercial refrigeration contractors in the State and in this connection is willing to act as certifying agent after receiving information from the Department of Community Colleges that certain individuals have successfully taken the course and passed the examination. The question then is, does the State Board of Refrigeration Examiners have the authority under the present law to do whatever is required of it to issue a license or certificate based on information received form the Department of Community Colleges.
Article 5 of Chapter 87 of the General Statutes of North Carolina deals with refrigeration contractors. N.C.G.S. 87-52 provides for the state Board of Refrigeration Examiners and 87-54 specifically authorizes the State Board to promulgate the necessary rules and regulations to carry forth its responsibilities. Since the primary function of the State Board is to protect the public health, safety and welfare by licensing those engaged in the refrigeration business, it is our opinion that the Board has the authority to adopt rules and regulations requiring those continuing to engage in the refrigeration business to meet the certification requirements of EPA. Moreover, it is also our opinion that the Board has the authority to adopt reasonable rules and regulations allowing it to issue a license or certificate to those individuals who can document successful completion of an EPA approved course and examination given by an institution within the North Carolina Department of Community Colleges.
Andrew A. Vanore, Jr. Chief Deputy Attorney General