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FOOD MARKETING INSTITUTE 

Environmental Protection Agency 

40 I M Street, SW 

Washington, DC 20460 

ATTN: Air Docket No. A-92-01 VIH.H 

Dear Sir or Madam: 

August 3 1, 1998 

/1-- y L -u; rrrr- iJ - ':J ~ 800 CONNECTICUT AVE .. N.W. 

WASHINGTON. D.C. 20006-2701 

TELEPHONE: 202/452-8444 

FAX: 202/429-4519 

E-MAIL: FMI@FMI.ORG 

WEBSITE: HTIP:I/WWW.FMI.ORG 

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RE: 40 CFR Part 822 

Protection of Stratospheric Ozone; 

Refrigerant Recycling; Substitute 

Refrigerants; Proposed Rule 

The Food Marketing Institute (FMI) is pleased to submit these comments in 

response to the notice of proposed mlemaking on Protection of Stratospheric Ozone; 

Refrigerant Recycling; Substitute Refrigerants. 

FMl is a nonprofit association conducting programs in research, education, 

industry relations and public affairs on behalf of its I ,500 members including their 

subsidi aries - food retailers and wholesalers and their customers in the United States 

and around the world. FMI's domestic member companies operate approximately 21,000 

retail food stores with a combined annual sales volume of $220 bi llion - more than half 

of all grocery store sales in the United States. FMl's retai l membership is composed of 

large multi-store chains, small regional firms and independent supem1arkets. Its 

international membership includes 200 members from 60 countries. 

In preparing this response to the EPA's notice, FMI solicited and received 

comments from its membership, including members of the FMI Energy and Technical 

Services Committee which is tasked with providing the association with technical 

expertise in monitoring legislative and regulatory policies impacting the food distribution 

industry. Our members noted specific problems with the proposed rule that would have 

negati ve impacts on their businesses. In this submission, FMI seeks to convey the 

specific concerns of our membership to allow the agency to understand the impact the 

standards inc luded in this proposed rule would have on the food retail and wholesale 

industries. 

The most common concern is that the targeted leak rates of 15 percent and 1 0 

percent for equipment built before and after 1992, respectively, was unattainable. Several 
Air Docket No. A-92-01 VIII.H 2 

reasons were cited for tills with the most commonly noted one being the lack of adequate 

methods and equipment for detection leaks that would allow for immediate repair. A leak 

that would amount to an annual1oss of 15 percent for some low-charge systems would be 

so slight as to only be detectable when the system is recharged. We believe that rates of 

25 percent for equipment manufactured before 1992 and 20 percent for equipment 

manufactured after 1992 are more realistic. 

Specific comments from FMI members are consolidated and listed below. They 

include both concerns as well as recommendations: 

• As noted above, current leak detection equipment is not reliable or sensitive enough 

to identify refrigerants escaping a system at a rate that, over the course of a year, 

would amount to 10 percent of its capacity. 

• By using a percentage of refrigerant lost versus measuring the total quantity iost, the 

proposed rule would have an unintended impact of punishing equipment owners who 

purposefully take advantage of systems that use lower than average amounts of 

refrigerant and/or design their stores to require less refrigerant. When leaks occur 

with such systems, the loss may represent a large percentage of the total charge yet 

be a relatively small amount of refrigerant. The agency should take this into 

consideration so as to not discourage the installation of low-charge systems. 

• The proposed rule seems to indicate that the agency is incorrect in its understanding. 

of how refrigerant is lost in a supermark~t. FMI interprets the proposal to envision 

supermarket refhgeration systems suffering a number of small leaks at an annual rate 

of 35 percent and that a supermarket can reduce its leak rate to 10 percent by simply 

repairing those leaks. ln fact, a system can be virtually leak-free until the time of a 

leak incident at wruch point a charge loss of as much as 50 percent may occur before 

the leak is detected. It should be remembered that in such a situation, not only does 

the supermarket operator face the costs of replacing the lost refrigerant but also is 

faced with the loss ofthe food products held in the failed equipment. 

• The definition of "appliance" seems to assume that only one compressor is being 

used. This may cause a problem when detem1ining the year of manufacture if the 

appliance has more than one compressor. This problem also holds true for single 

compressor units where the original compressor has been replaced. Would the date of 

manufacture then be the date that the latest compressor was insta!led? If so, that 

could change the acceptable leak rate from 15 percent to 10 percent for certain 

appliances. System upgrades or repairs should not have the effect of reducing the 

allowable rate of leakage. 

• FMJ believes the effective date of30 days after the publication date of the final rule is 

impractical as it does not take into consideration the work load and scheduling of 

refrigeration contractors nor does it take into consideration the cost and impact on the 

budgetary process of the equipment owner. This rapid implementation would be most 

harmful to small businesses that would be less of a priority to contractors than their 

larger competitors and likely not as financially prepared to bear such an immediate 

cost burden. 

• Any rules governing the usage of refrigerants should be based on sound, verifiable 

science and not speculation. 
Air Docket No. A-92-01 VIII.H 3 

• We recommend that the rate of allowable loss be reflective of the environmental 

impact of a given refrigerant. Penalties for leaks of refrigerants that have little or no 

impact on the environment should be distinguishable from penalties for CFC or CFCtype refrigerants. 

• Performance standards for equipment manufacturers should be established. Store 

owners should not be responsible for leaks from manufactured equipment due to 

manufacturing defects or damage from shipping. 

• The agency should consider advocating tax incentives for companies that have proactive leak mitigation programs. 

A key point for the agency to consider as it moves toward issuance of the final 

rule on refrigerant leak control is that supermarkets are not sitting idly by while leaks 

occur under the existing regulations. It is in our members best financia l interest to 

control and reduce leaks as best as is possible. 

The agency should also take heed of the disproportionately negative impact this 

rule will have on smaller food retailers. These independent operators are more likely to 

have older equipment that would be in need of retrofitting or replacing. They are also 

more apt to be reliant on outside contractors to manage and service their refrigeration 

equipment. This leaves smaller retailers facing higher than average compliance costs as 

well as being at the mercy of their contractor and at a disadvantage to their chain store 

competition. 

Finally, the industry has a long-standing commitment to food safety and food 

retailers have little choice but to utilize refrigeration equipment for the storage and 

display of products. In addition, states and localities have strict laws and regulations 

governing the handling, storage and display of food items. Consequently, any increase in 

the cost of operating refrigeration equipment wi ll have the effect of increasing a stores 

operating costs and, therefore, be reflected in the price of the products consumers 

purchase. Whatever steps the agency can take to minimize the financial costs of these 

regulations will not only be beneficial to food distributors but also to consumers. 

Again, thank you for the opportunity to comment on this issue of great importance 

to the food retail and wholesale industries. Fi\til and its member companies iook forward 

to a continuing dialogue with the agency on this and other issues. 

;:cerely, 

I~ /1---..........,~~~ Tim Hanunonds 

President and CEO