February 14, 2011 

Submitted Electronically 

The Honorable Lisa Jackson 

Administrator 

Environmental Protection Agency 

1200 Pennsylvania Avenue, NW 

Washington, DC 20460 

RE: Protection of Stratospheric Ozone: Amendments to the Section 608 Leak Repair 

Requirements 

Docket ID No. EPA-HQ-OAR-2003-0167 

On December 15, 2010, the Environmental Protection Agency (EPA or Agency) published in the 

Federal Register for comment a proposed rule which would amend the leak repair regulations 

promulgated under Section 608 of the Clean Air Act Amendments of 1990 (the “Proposed Rule).1 

The Proposed Rule lowers the leak repair trigger rates, changes certain definitions and imposes a 

new follow-up verification test and three strike rule for commercial refrigeration and comfort 

cooling appliances among other things. 

The Food Marketing Institute (FMI) appreciates the opportunity to respond to the request of EPA 

for comments on the Proposed Rule. FMI’s comments will focus on changes to definitions in 

current regulations, the follow-up verification test requirement, the three strikes rule and new 

recordkeeping requirements. 

FMI is the national trade association that conducts programs in public affairs, food safety, research,

education and industry relations on behalf of its 1,500 member companies – food retailers and 

wholesalers – in the United States and around the world. FMI’s members in the United States 

operate approximately 26,000 retail food stores and 14,000 pharmacies. Their combined annual 

sales volume of $680 billion represents three-quarters of all retail food store sales in the United 

States. FMI’s retail membership is composed of large multi-store chains, regional firms, and 

independent supermarkets. Our international membership includes 200 companies from more than 

 

1

 75 Fed. Reg. 78558 (December 15, 2010). 
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50 countries. FMI’s associate members include the supplier partners of its retail and wholesale 

members. 

I. Background 

Properly Working Equipment is Essential to Success 

Properly functioning commercial refrigeration equipment is essential to the success of food retailers 

and wholesalers. The industry takes the utmost care to prevent leaks in commercial refrigeration 

equipment. Retailers and wholesalers go to great lengths to detect and repair leaks as quickly as 

possible. The bottom line is that refrigerant leaks are bad for business. Retailers and wholesalers 

do not have an incentive to let them continue without repair. 

First, leaks may result in temperature increases in cases and boxes which leads to loss of product 

and creates food safety hazards. Second, when cases and boxes are out of service, fewer perishable 

products can be stored or offered to consumers, imposing significant costs and inconveniencing 

shoppers. Third, loss of the refrigerant itself is costly to firms in the industry. 

Refrigeration Systems are Monitored Vigilantly 

Competition in the supermarket industry is fierce. Retailers and wholesalers know that in order to 

succeed in the marketplace, they have to deliver the freshest food possible to meet consumer 

demands. As commercial refrigeration is the lifeblood of the industry, retailers and wholesalers 

vigilantly watch refrigeration systems for signs of leaks. For example retailers today monitor case 

temperatures at store locations remotely for signs of anomalies. The temperature of cases on store 

floors may be monitored from a central location tens, hundreds or even thousands of miles away. 

When an anomalous temperature is detected, it is investigated, and a technician is sent to diagnose 

and repair the equipment if necessary. Not only are temperatures monitored constantly, retailers 

and wholesalers also deploy leak detectors near critical points in a system. Similarly, these 

detectors may be monitored remotely with an alert sent to a central location when refrigerants are 

detected. Refrigerant levels are checked remotely as well. 

The supermarket industry goes to these great lengths to monitor refrigeration systems not because 

of regulatory mandates, but rather, because they wish to provide consumers with the safest and 

freshest food possible. Also, the industry recognizes the importance of environmental sustainability 

and views leak prevention as one way to make stores more environmentally friendly. 
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Voluntary Initiatives 

FMI has had a long history of addressing leak issues and our Energy and Store Development 

Committee has—and continues to play a key role—in establishing best practices for the industry. 

The industry also values its partnership with EPA in the GreenChill program. We believe voluntary 

partnerships like GreenChill and the implementation of industry best practices are achieving many 

of the goals EPA seeks to attain in the Proposed Rule. 

We believe that these means, rather than burdensome regulations, are the way to move forward in 

continuing to reduce the emissions of ozone-depleting substances (ODS). 

II. Regulatory Analysis: E.O. 13563, §7617 and the RFA 

In Executive Order 13563, President Obama ordered that: 

Our regulatory system . . . must identify and use the best, most innovative, and least burdensome 

tools for achieving regulatory ends. . . As stated in (Executive Order 12866) . . . each agency must . 

. . propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs. . 

. (and) tailor its regulations to impose the least burden on society.2

EPA has additional obligations to consider less burdensome regulatory alternatives. Pursuant to 42 

USC §7617, the Administrator is required to consider in this rulemaking: 

the costs of compliance with any such standard or regulation, including the extent to which the costs 

of compliance will vary depending on . . . the development of less expensive, more efficient means 

or methods of compliance with the standard or regulation. . . the effects on competition of the 

standard or regulation with respect to small business; the effects of the standard or regulation on 

consumer costs . . .

In addition to §7617, EPA is required to consider the impact of the Proposed Rule on small 

businesses and assess less burdensome alternatives pursuant to the Regulatory Flexibility 

Act (RFA).3

 The Administrator has certified that the Proposed Rule will not have a 

significant economic impact on a substantial number of small entities. This is simply not the 

case. As explained later, the Proposed Rule will have a very significant impact on thousands 

of small business grocers, costing them hundreds or thousands of more dollars per repair. 

EPA has failed to meet its obligations under the RFA. The Agency must conduct a proper 

initial regulatory flexibility analysis which fully considers the impact of the Proposed Rule 

on small firms and considers less burdensome alternatives. 

 

2

 Executive Order 13563 (January 18, 2011). 

3

 5 U.S.C. §601 et seq. 
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FMI believes that if EPA follows the recommendations contained within these comments it 

will develop a regulation in a manner consistent with the principles articulated by President 

Obama in E.O 13563. Our recommendations will result in less expensive and more efficient 

means of compliance for small and large firms as the Administrator must consider under 

§7617 and the RFA. 

III. Proposed Revisions to the Leak Repair Regulations 

FMI understands the stated intent in the Proposed Rule is to break the cycle of repeat repairs and 

recharges on a refrigeration appliance. This is discussed extensively in the preamble, and made 

clear by the following items in the proposed amendments: 

• The inclusion of the word “all” in §82.156(i) & 82.156(j) regarding leaks to be repaired in 

an appliance with a leak rate in excess of the trigger rate 

• The requirement for leak verification testing in §82.156(i)(2) & 82.156 (j)(2) 

• The three-strike rule §82.156 (i)(4) & 82.156 (j)(4) 

Definition of Appliance 

FMI believes that the definition of “appliance” in the Proposed Rule is overly broad, and places an 

undue and unnecessary burden on owners/operators of systems typical of those found in a 

supermarket. This burden makes the Proposed Rule inconsistent with E.O. 13563. 

EPA defines both “Comfort Cooling Appliance” and “Commercial Refrigeration Appliance” in 

§82.152.4 The definitions are vague, but would seem to regard a supermarket system in its entirety 

as a single appliance. The implication of this in implementing EPA’s remedy to retire or retrofit an 

“appliance” with a leak rate exceeding 20% and failing the three strike rule would be to replace or 

retrofit all cases, unit coolers, condensers, compressor systems and interconnecting piping that 

comprise the full system. We consider this to be an unduly burdensome and wasteful remedy. This 

is especially true when considering a typical supermarket scenario where the failed portion of the 

system might be a discrete piece of equipment (e.g. an air-cooled condenser) that may be of much 

older vintage than other fully functional and compliant parts of the system that had been replaced in 

a recent remodel. 

 

4

 Comfort cooling appliance means any air-conditioning appliance used to provide cooling in order to control heat 

and/or humidity in facilities such as office buildings and computer rooms. Commercial refrigeration appliance means 

any refrigeration appliance used to store perishable goods in retail food, cold storage warehousing, or any other sector 

requiring cold storage. Retail food includes the refrigeration equipment found in supermarkets, grocery and 

convenience stores, restaurants, and other food service establishments. Cold storage includes the refrigeration 

equipment used to house perishable goods or any manufactured product requiring refrigerated storage. 
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We see two options for addressing the concern over the present definition: 

One option would be to somewhat broaden the definition of component, and alter the regulations 

such that they would impose the follow-up verification test requirement and the retire option to 

failed components rather than the whole appliance. 

A proposed broader definition for “Component” reads as follows: 

“A factory-made assembly or device that serves a single, or limited, function as part of a 

Comfort Cooling or Refrigeration Appliance” 

“This definition is intended to include, but not be limited to, evaporators, condensers, 

refrigerant compressors, refrigerant control valves and piping in a self-contained appliance, 

or refrigerated merchandising or storage fixtures, unit coolers, air-handlers, condensers, heat 

exchangers, condensing units, compressor systems and refrigerant piping that interconnects 

two factory-made assemblies or devices located remotely from one another in a field-erected 

system.” 

With this definition, we believe the Agency’s intent is satisfied by revising §82.156(i)(4) and 

§82.156(j)(4), among others, to limit the “retire” option to a component rather than the complete 

appliance. It is FMI’s intention that this broader definition of Component only be incorporated in 

conjunction with these additional revisions to the regulations. 

The second, and our recommended option, would be to constrain the definition of appliance with 

more technically precise language that doesn’t capture a field-erected, supermarket type, system in 

its entirety. We see this as the most straight-forward approach, though additional revisions to the 

regulations would be necessary (e.g. leak rate definition, §82.156(i), §82.156(j)) so that the use of 

the newly defined terms would not alter the intent of the regulations. 

Our proposal for new definitions follows. These require the definition of a new term “Engineered 

System.” An Engineered System is typical of those systems used in the supermarket industry. 

These definitions borrow some language from ASHRAE,5

 which is generally recognized by 

governments and regulatory agencies as the authoritative source of standards for the industry. 

• A proposed alternate definition for “Commercial Refrigeration Appliance” reads as follows: 

“A factory-made assembly of refrigeration Components that function to extract heat from or 

reject heat to a space or substance, or to compress a refrigerant vapor, for the purposes of 

 

5

 American Society of Heating, Refrigerating and Air Conditioning Engineers 
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storing perishable goods in retail food, cold storage warehousing, or any other sector 

requiring cold storage.” 

“This definition is intended to include, but not be limited to, self-contained refrigeration 

equipment, and remote refrigerated merchandising or storage fixtures, unit coolers, 

condensers, condensing units and compressor systems used in an Engineered System.” 

• A proposed alternate definition for “Comfort Cooling Appliance” reads as follows: 

“A factory-made assembly of refrigeration Components that function to control air 

temperature and/or humidity in facilities such as office buildings and computer rooms.” 

“This definition is intended to include, but not be limited to packaged indoor or outdoor airconditioning units, and air-handlers, condensers, condensing units and compressor systems 

used in an Engineered System.” 

• A proposed alternate definition for “Component” reads as follows: 

“A factory-made assembly or device that serves a single, or limited, function as part of a 

Comfort Cooling Appliance, Refrigeration Appliance or Engineered Refrigeration System.” 

“This definition is intended to include, but not be limited to, evaporator, condenser or heat 

recovery heat exchangers, refrigerant compressors, refrigerant control valves, or refrigerant 

piping that interconnects two components located remotely from one another in a fielderected Engineered System.” 

• A proposed new definition for “Engineered System” reads as follows: 

“A field-erected refrigeration or comfort cooling system comprised of multiple appliances 

or Components interconnected by refrigerant piping, forming a closed circuit in which 

refrigerant is circulated between one or more evaporators and a central condenser” 

The above definitions would allow owners/operators of engineered systems to implement the 

“retire” option for a three-strike failed appliance (e.g. refrigerated merchandiser, condenser, etc) 

rather than the entire system. 

Follow-up Verification 

Contrary to EPA’s expectations, FMI believes that a follow-up verification as defined in the 

proposed amendments would have almost no value in reducing refrigerant emissions. This 
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amendment would require that the effectiveness of repairs made at a specific leak site be validated 

by test (e.g. soap bubbles, electronic leak detection, etc) within 30 days, but no sooner than 24 

hours after the repair is made. It would be an extremely rare event for the repair of a specific leak

site, having passed a verification test immediately following the appliance’s return to normal 

operating characteristics and conditions, to subsequently fail within the presently prescribed followup window. 

A technician’s reputation is on the line with every service call. Retailers and wholesalers do not 

tolerate shoddy work. Technicians know that if their repairs fail regularly, they will lose the 

business of retailer or wholesaler. Firms in the industry expect the job to be done correctly the first 

time. 

The 24 hour waiting period proposed by the Agency for the follow-up verification does essentially 

nothing to reduce ODS emissions, yet it imposes a very large cost on food retailers and wholesalers. 

It is important to view the philosophy of the Proposed Rule in other contexts. Say for example, the 

Proposed Rule applied to the cars of Americans. After the repair of every leaky hose and blown 

gasket, Americans would be required to take their cars back to the garage or dealership the next day 

or sometime within the next month to have the hose or gasket checked. The burden would vastly 

outweigh any benefit accrued to society. 

FMI does not oppose EPA's proposed amendment to extend the follow-up verification test 

requirement to commercial refrigeration appliances; however, we believe the test should be able to 

be conducted at any point an appliance has returned to normal operating characteristics and 

conditions within 30 days of the date of the repair, rather than imposing a 24 hour waiting period 

before such test may be conducted. 

For the owner/operator of a supermarket system, providing access to a repair site often means 

removing perishable product from a merchandising fixture. The service cost of a follow-up 

inspection, the cost of store labor and the cost of lost revenue that results from removing saleable 

product from a merchandising fixture are far in excess of the benefit gained by imposing a 24 hour 

waiting period for a follow-up verification test. 

The typical service call for a technician lasts about 4 hours, and often they are significantly longer. 

It is essential for EPA to contemplate that a technician in many circumstances may have to drive an 

hour or two to visit a store location, and then an hour or two back. 

Thousands of small, independent retailers are located in small towns that do not have resident 

certified refrigeration technicians. For many of these retailers, the closest technician may be a six

hour or more drive away. These retailers face challenges in getting technicians to drive vast 

distances to make a repair in the first place. Requiring these retailers to bring a technician back to 
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check on a previously made repair will be nearly impossible. If the Agency decides to promulgate 

the follow-up verification requirement as written in the Proposed Rule, under these circumstances a 

retailer would effectively be forced to pay a technician to stay overnight to comply with the 24 hour 

waiting period. 

With contractor rates averaging $90 to more than $100 an hour, the follow-up verification 

requirement will cost retailers and wholesalers hundreds or thousands of dollars more for each leak 

repair in addition to the costs of lost revenue and store labor described above. Pulling a case for 

repair requires significant amounts of store labor. If the 24 hour waiting period is implemented, it 

is likely that retailers will leave a case pulled for that entire period, which not only leads to lost

revenue, but inconveniences consumers. Small businesses will bear a significant share of this 

burden. The economic analysis conducted for the Proposed Rule has failed to contemplate the costs 

of the 24 hour waiting period for the follow-up verification test. 

FMI believes that a follow-up verification test as specified would have a very significant cost—far 

in excess of the incremental benefit—and a cost not adequately contemplated by EPA. 

A proposed alternate definition for Follow-up Verification Test reads as follows: 

“A test that validates the effectiveness of repairs within 30 days of the appliance’s return to normal

operating characteristics and conditions” 

Availability of Records 

Clarification of the recordkeeping requirements of §82.166 is requested to confirm that full system 

charge, leak rate calculations, leak verification tests, etc, summarized or transcribed from original 

service records and available on-site in electronic format, is acceptable to EPA, provided that the 

source documents can be made available to EPA within some reasonable period of time (e.g. 30 

days). Requiring the maintenance of paper records would be unnecessarily burdensome. 

Retrofit/Retire Requirements 

If EPA does decide to move forward in extending retrofit/retirement requirements to commercial 

refrigeration and comfort cooling appliances, FMI prefers the second option proposed by EPA that 

would allow owners or operators to decide on a case-by-case basis if a component or its 

subassembly requires replacement in order to completely repair the appliance because it will reduce 

the odds that replacement of a component is required in circumstances where it is not necessary or 

warranted. 
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Three Strikes Rule 

The Proposed Rule requires the retrofit to a refrigerant or substitute with a lower ODP, or 

retirement an appliance, if it fails three initial or follow-up verifications during a consecutive sixmonth period. We have serious concerns with this provision of the rule as written. We believe the 

three strikes rule should be stricken from the Proposed Rule. However, if EPA does decide craft a 

final rule with this provision, unless the definition of appliance is significantly changed, as 

discussed earlier, this provision will impose enormous—and unnecessary—burdens on the 

supermarket industry. Strikes should only be applied and aggregated towards components 

individually, and not a system in its entirety. For example, three leaks in a particular component or 

causally related to one component would trigger the requirement to replace that component. 

Extension to Repair Timelines 

The Proposed Rule grants owners or operators of comfort cooling and commercial refrigeration 

appliances the same flexibility as owners or operators of industrial process refrigeration appliances 

when requesting additional time to make repairs due to the unavailability of parts or components or 

when other applicable regulations make repair within the 30 day timeframe impossible. FMI 

applauds EPA for granting owners or operators of comfort cooling and commercial refrigeration 

equipment this additional flexibility. 

Seasonal Variances 

The Proposed Rule specifies that owners or operators of commercial appliances may take seasonal 

variances into account in determining the full charge of an appliance. FMI supports EPA for 

making this change to the existing regulation. 

Leak Repair Clock 

FMI supports EPA’s change to the definition of leak rate whereby the leak repair clock for a leak 

event is stopped after successful initial verification and follow-up verification and documentation of

repairs for all leaks. 

Effective Date 

Implementing the Proposed Rule will be a very complex undertaking. FMI requests an effective 

date of 18 months after the date of publication of a final rule in the Federal Register. 
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FMI appreciates the opportunity to comment on this important matter and looks forward to working 

with EPA to continue further reducing emissions of ODS. 

Sincerely, 

Erik R. Lieberman 

Regulatory Counsel