Does the NC State Board of Refrigeration Examiners have the authority to make rules requiring NC commercial refrigeration contractors to comply with new EPA certification rules for handling refrigerants?
Plain-English summary
Robert B. Broughton, an attorney representing the NC State Board of Refrigeration Examiners, asked whether the Board could adopt rules requiring NC commercial refrigeration contractors to comply with new EPA certification requirements promulgated under the 1990 Clean Air Act Amendments. Chief Deputy AG Andrew A. Vanore, Jr. said yes.
The federal background: Section 608(a) of the Clean Air Act, 42 U.S.C. § 7671g(a), required the EPA Administrator to write regulations on the use and disposal of chlorofluorocarbons (CFCs) and related compounds during the service, repair, or disposal of appliances and industrial process refrigeration. EPA published those rules at 40 C.F.R. Part 82 in May 1993. The rules required all technicians who maintain, service, repair, or dispose of refrigeration appliances (other than motor vehicle air conditioners, treated separately) to be certified by an EPA-approved technician certification program by November 14, 1994. After that date, an unlicensed technician could not even buy refrigerants from a supplier without producing a certification card. 40 C.F.R. § 82.161(a).
The EPA framework set four certification classifications based on the type of refrigeration equipment. It also let states, municipalities, and political subdivisions sponsor approved certification programs. 40 C.F.R. § 82.152(o). To be approved, a program had to verify it met EPA standards (closed-book proctored exam from EPA test bank, applicant notification within 30 days, three-year recordkeeping, semi-annual activity reports to EPA, periodic EPA inspection). 40 C.F.R. Part 82 App. D. EPA prioritized review based on geographic scope, with regional networks of 10+ testing centers in the second priority tier (where a NC community-college-based program would fit).
The NC Department of Community Colleges was developing a refrigeration certification course with an exam administered immediately after each course, taught at various community colleges across the state. The Department wanted to coordinate with the State Board of Refrigeration Examiners so that the Board could act as the certifying agent once the Department reported that individuals had completed the course and passed the exam. That left the question: did the Board have the authority to do that under existing state law?
The AG looked to Article 5 of Chapter 87, the refrigeration contractors article. N.C.G.S. § 87-52 establishes the State Board of Refrigeration Examiners. N.C.G.S. § 87-54 specifically authorizes the Board to promulgate the rules and regulations necessary to carry out its responsibilities. Combined with the Board's underlying mission, protecting public health, safety, and welfare by licensing refrigeration contractors, the AG concluded the Board had ample authority to adopt rules requiring contractors to meet EPA certification standards. The AG further concluded that the Board could adopt reasonable rules letting it issue a license or certificate to contractors who documented successful completion of an EPA-approved course and exam given by a NC Community Colleges institution.
The opinion is a straightforward delegation analysis: the Board's enabling statute is broad enough to encompass enforcing federal certification standards through its NC licensing process, and the Board can issue NC credentials based on documented completion of federally-approved training.
Currency note
This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
The EPA Section 608 regulatory framework has been updated several times since 1993. The 2016 EPA rule extended Part 82 coverage to non-ozone-depleting substitute refrigerants (HFCs), but the Trump-era EPA in 2020 rescinded parts of that extension. The 2020 American Innovation and Manufacturing Act (AIM Act) created new federal authority to phase down HFCs, and EPA promulgated new rules under that authority in 2021–2024 affecting refrigerant management. NC's Chapter 87 Article 5 has also been amended. Anyone with a current question about NC refrigeration contractor licensing or EPA certification should consult current federal CAA implementing regulations, the AIM Act regulations, current Chapter 87 Article 5, and the current rules of the State Board of Refrigeration Examiners.
Common questions
Q: What is "Section 608 certification"?
A: The EPA-administered technician certification required under Section 608 of the Clean Air Act for anyone who services, repairs, or disposes of stationary refrigeration and air conditioning equipment. There are four categories: Type I (small appliances), Type II (high-pressure equipment), Type III (low-pressure equipment), and Universal. Technicians must pass an EPA-approved exam.
Q: Why did the NC Board of Refrigeration Examiners need AG authorization to require federal certification?
A: As a state occupational licensing board, the Board acts only within the powers the General Assembly grants. Before rolling out new licensing requirements tied to a federal program, the Board wanted formal confirmation that its general rulemaking authority (G.S. 87-54) was broad enough to cover that move. The AG confirmed it was.
Q: How does the NC Community Colleges system fit in?
A: The Department of Community Colleges developed an EPA-approved refrigeration certification course offered at community colleges around the state. Technicians who passed the course could provide documentation to the State Board of Refrigeration Examiners, which would then issue NC licenses or certificates reflecting their EPA-approved certification. The AG confirmed the Board could rely on Community Colleges documentation to issue its NC credentials.
Q: What happened to technicians who did not get certified by the deadline?
A: After November 14, 1994, suppliers could not legally sell refrigerants to non-certified technicians. That made certification effectively mandatory for anyone working with stationary refrigeration equipment. NC's tie-in (requiring certification as part of licensing) made noncompliance a state-law issue too, not just a federal-purchasing-restriction issue.
Q: Does this opinion apply to motor vehicle air conditioning?
A: No. The EPA regulations treat MVAC separately under Section 609 of the Clean Air Act, with a different certification regime. The 1993 opinion is limited to commercial refrigeration contractors covered by Section 608.
Q: What changed with the 2020 AIM Act?
A: The AIM Act gave EPA new authority over HFC refrigerants (the chemicals that largely replaced CFCs after the Montreal Protocol phase-out). EPA's 2021–2024 rules under the AIM Act expand technician training and refrigerant management requirements again. NC contractors today must keep up with both ongoing Section 608 obligations and newer AIM Act requirements.
Background and statutory framework
NC's State Board of Refrigeration Examiners is one of NC's many occupational licensing boards, set up to ensure refrigeration work is performed by trained, licensed contractors. Its enabling statute (Chapter 87 Article 5) is structurally similar to other licensing-board statutes: a Board, a mission rooted in protecting public health and safety, and a general grant of rulemaking authority to carry out the mission.
The 1990 Clean Air Act Amendments substantially restructured federal regulation of ozone-depleting substances, implementing US obligations under the 1987 Montreal Protocol. Section 608 was the mechanism for ensuring that refrigerant handling by technicians did not vent CFCs to the atmosphere. EPA's 1993 regulations operationalized that mandate through technician certification.
The 1993 AG opinion is a useful example of how state occupational licensing boards can fold federal certification requirements into their existing state-law framework without needing new authorizing legislation. The Board's broad rulemaking grant under G.S. 87-54 was enough. The Board could require, as a condition of state licensure, that the contractor hold the federally-required Section 608 certification.
Citations
- N.C.G.S. § 87-52 (creates State Board of Refrigeration Examiners; mission to protect public health, safety, welfare through refrigeration contractor licensing)
- N.C.G.S. § 87-54 (general rulemaking authority for the Board)
- 42 U.S.C. § 7671g(a) (Section 608(a) of the Clean Air Act; directs EPA to write rules for use and disposal of CFCs during refrigeration service, repair, disposal)
- 40 C.F.R. Part 82 (EPA Stratospheric Ozone Protection program)
- 40 C.F.R. § 82.161 (technician certification program standards, with four certification categories)
- 40 C.F.R. § 82.152(o) (definition of "person," including states, municipalities, and political subdivisions)
- 40 C.F.R. Part 82 App. D (program approval standards for technician certification)
Source
- Landing page: https://ncdoj.gov/opinions/state-board-of-refrigeration-examiners-authority-to-adopt-regulations/
Original opinion text
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. 82.161(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