Analysis Prepared by the Dept. of Agriculture, Trade & Consumer Protection
Statutory authority: ss. 93.07 (1) and 100.37 (2)
Statute interpreted: s. 100.37
On October 4, 1996, the Department adopted a temporary emergency rule to ban flammable refrigerants in mobile air conditioning systems. The Department is now proposing an identical “permanent” rule. The proposed rule prohibits the sale of butane, propane, mixtures of propane and butane, or other gaseous hydrocarbons for use as refrigerants in mobile air conditioners. The rule exempts refrigerants that are sold and properly labeled for uses approved by the U.S. Environmental Protection Agency, and which meet recognized industry standards related to flammability for those specific uses.
Background
The Department administers s. 100.45, Stats., which regulates the repair and servicing of mobile air conditioners and trailer refrigerant equipment. This program helps ensure the safe use and recovery of ozone-depleting refrigerants and their substitutes. The program complements a similar U.S. Environmental Protection Agency (“EPA”) program under the 1990 Clean Air Act Amendments.
Under federal law, domestic production of CFC-12 and other Class I ozone-depleting substances were phased out on January 1, 1996. This has resulted in an increase in the wholesale price of CFC-12 which, in turn, has pushed the automotive servicing industry to look at possible non-ozone depleting refrigerant substitutes.
Under federal law, the EPA has authority to review and approve substitutes to ozone-depleting refrigerants. Thus far, EPA has reviewed and approved nine separate refrigerant substitutes for use in motor vehicle air conditioning. Seven of these are currently being marketed in the U.S.
Since March, 1994, the EPA has prohibited the use of flammable, hydrocarbon-based substances as a substitute for R-12, an ozone-depleting refrigerant commonly used in motor vehicle air conditioning systems. EPA prohibited the use of these products in mobile air conditioners because of safety risks associated with these flammable refrigerants.
An Idaho-based company has continued to manufacture and distribute a hydrocarbon-based refrigerant, called HC-12a, for use in mobile air conditioners. The company has argued that the EPA lacks jurisdiction to regulate substitutes to non-ozone depleting substances. In addition, federal law governing the review and approval of substitute refrigerants only prohibits the use of unapproved substances, not the sale and marketing of these products.
In recent months, the Department has investigated several instances of the sale and distribution of HC-12a in Wisconsin. Labeled as containing liquefied petroleum gas, HC-12a is being marketed as an “ozone safe”, “natural organic refrigerant” for use in motor vehicle air conditioning and refrigeration systems.
The Department has used existing regulatory authority under s. 100.45 (3) (a), Stats., which prohibits the sale of any refrigerant in containers holding less than 15 pounds, to direct the removal of small cans of HC-12a. However, 22-lb. pressurized cylinders of HC-12a have also been found on the premises of one of the businesses under investigation.
DATCP Authority under Wisconsin's Hazardous Substances Law
As part of its consumer product safety program, the Department administers Wisconsin's Hazardous Substances Law under s. 100.37, Stats. The law defines a “hazardous substance” to include any substance or mixture of substances which is flammable or combustible “if such substance or mixture of substances may cause substantial personal injury or substantial illness during or as a proximate result of any customary or reasonably foreseeable handling or use.” The statute exempts certain products such as foods, drugs, pesticides, cosmetics and ammunition. But none of these exemptions applies to HC-12a or other hydrocarbon-based refrigerants.
The Department may identify “hazardous substances” by rule, and may regulate “hazardous substances” in various ways. The Department may, by rule:
○ Require precautionary labeling of hazardous substances.
○ Restrict the use of hazardous ingredients.
○ Prescribe package safety standards.
○ Ban the sale of hazardous substances if less restrictive alternatives are inadequate to protect public health and safety.
Under s. 100.37, Stats., the Department proposes to prohibit the sale of flammable hydrocarbon-based refrigerants for use in mobile air conditioning because of their serious risk to public health and safety. At this time, public health and safety can only be protected by keeping these products out of the channels of commerce in Wisconsin.
Public Health and Safety Risks Cited
HC-12a is a highly flammable, and potentially explosive substance. Independent testing by the Wisconsin Occupational Health Laboratory has identified a product composition of 62% propane, 23% butane and 12% isobutane.
Motor vehicles and mobile air conditioners are not currently designed to use flammable substances, or to prevent the safety hazards associated with those substances. The Society of Automotive Engineers has issued a standard which states that refrigerants used in mobile air conditioning systems must be of low toxicity, and must be nonflammable and nonexplosive.
Refrigerants commonly leak into engine compartments and passenger compartments of motor vehicles. Flammable refrigerants pose a danger in a mobile air conditioning system where they may come in contact with numerous ignition sources. Potential leak sources include evaporators, flexible hoses, and compressor shaft seals. Hydrocarbon-based refrigerants also pose a greater likelihood of leakage because of higher pressures which these substances exhibit within a motor vehicle air conditioning system. Fires or explosions resulting from the ignition of leaked flammable refrigerant may cause serious bodily injury or death to motor vehicle passengers.
Numerous national organizations and trade industry groups, including the Association of International Automobile Manufacturers, the American Automobile Manufacturers Association, the National Automobile Dealers Association, the Mobile Air Conditioning Society and the International Mobile Air Conditioning Association, have expressed concern and issued warnings regarding the use of flammable refrigerants in motor vehicle air conditioning systems.
Automotive technicians who repair or service mobile air conditioners are also at risk. Leak detection equipment used by service technicians utilize technologies that provide a source of ignition for leaking flammable refrigerants. Underwriters Laboratories, recognized under state and federal law for testing and approving refrigerant recovery and recycling equipment, has also issued a warning to equipment operators on the use of flammable refrigerants.
At least thirteen states have enacted specific legislation prohibiting sale and use of refrigerants in air conditioning or refrigeration systems unless those refrigerants meet flammability standards or are specifically approved for their intended use.
The Department does not believe that further precautionary labeling would adequately address the hazard inherent in the use of these products. Rather, the safety concern can only be effectively addressed by a sales prohibition. Safer, federally approved refrigerant substitutes are available. One such refrigerant, R-134a, has been used by auto manufacturers in new motor vehicles since 1992. Although the Department is unable to identify any deaths or serious injuries to date from the use of hydrocarbon-based refrigerants, the Department believes that the risk is sufficiently serious to warrant permanent rulemaking.
Text of Proposed Rulemaking Order
SECTION 1. ATCP 139.04 (11) is created to read:
ATCP 139.04 (11) Substances containing butane, propane, mixtures of butane and propane, or other gaseous hydrocarbons when sold or intended for use as refrigerants in mobile air conditioners, as defined under s. 100.45 (1) (b), Stats. This subsection does not apply to substances used as refrigerants which are properly labeled and intended for specific end uses approved by the United States environmental protection agency, and which meet recognized industry standards related to flammability for that specific end use.
SECTION 2. The rule contained in this order shall take effect on the first day of the month following publication in the Wisconsin Administrative Register, as provided under s. 227.22 (2) (intro), Stats.
Fiscal Estimate
This Department does not expect this proposed rule to have any fiscal effect. Any workload increase resulting from the rule will be absorbed by existing staff responsible for administering the Department's mobile air conditioning refrigerant use and recovery program.
Copies of Proposed Rule and Fiscal Estimate
A copy of the proposed rule and fiscal estimate can be obtained at no charge by making a written request to:
Tom Stoebig
Telephone (608) 224-4944
Bureau of Consumer Protection, DATCP
2811 Agriculture Dr.
P.O. Box 8911
Madison, WI 53708-8911
Regulatory Flexibility Analysis
This proposed rule identifies butane, propane, mixtures of butane and propane, or other gaseous hydrocarbons as “hazardous substances”, and prohibits the sale of these substances for use as refrigerants in mobile air conditioning systems. The rule exempts refrigerants that are sold and properly labeled for uses approved by the U.S. Environmental Protection Agency, and which meet recognized industry standards related to flammability for those specific uses.
Refrigerants Used in Mobile Air Conditioning Systems
U.S. production of CFC-12 and other Class I ozone-depleting substances ceased on January 1, 1996 under terms of the Federal 1990 Clean Air Act Amendments. Currently, CFC-12 service needs for automotive air conditioning in the U.S. has been estimated at 43.8 million pounds. Current stockpiles of CFC-12, combined with supplies from recycling and reclaiming activities, have been meeting these automotive servicing needs.
As a result of diminishing supplies, the price of CFC-12 has risen dramatically on a statewide and national basis, increasing from about $8 per pound to more than $20 per pound. This has influenced business decisions to market and distribute substitute refrigerants.
Under federal law, the EPA has authority to review and approve substitutes to CFC-12 and other ozone-depleting substances. To date, the EPA has reviewed and approved nine separate refrigerant substitutes for use in motor vehicle air conditioning. The EPA has also acted to prohibit the general use of two flammable refrigerants -- OZ 12 and HC-12a -- because of public safety concerns.
Overall Effect on Small Businesses
The proposed rule prohibits the sale and use of flammable, hydrocarbon-based refrigerants in mobile air conditioning systems. These refrigerant products present an unreasonable public safety risk to motor vehicle owners and auto service technicians.
The Department has identified less than a handful of businesses in Wisconsin with product inventories which were engaged in distributing or marketing HC-12a. This rule will prohibit these and any future businesses from selling this or any similar product. Any potential costs borne by businesses with banned inventory can be mitigated to the extent that these businesses seek refunds from distributors or the manufacturer under the refund remedies provided under s. 100.37 (7), Stats.
Other refrigerant substitutes approved for use in mobile air conditioning systems are also available in the marketplace, thus eliminating the need for flammable refrigerants as a product in the after-market automotive parts and servicing industry.
Products affected by the proposed rule are uncommon in the state, and do not constitute the principal product of any Wisconsin business. Refrigerants are also regulated under other state laws. The Department's mobile air conditioning rule under ch. ATCP 136, Wis. Adm. Code, currently prohibits the sale of refrigerant in containers holding less than 15 pounds. In addition, refrigerant suppliers are generally restricted to selling refrigerant to registered businesses in the state.
The interest of public safety far outweighs any potential cost to small businesses as a result of the proposed rule. The proposed rule also helps to protect investments made by small businesses in approved recovery and recycling equipment and refrigerant supplies by eliminating a potential source of refrigerant contamination. This contamination from intentional or inadvertent use of flammable refrigerants can lead to costly refrigerant disposal costs, the loss of warranty coverage on recovery/recycling equipment and motor vehicle parts, and defective motor vehicle repairs and follow-up servicing costs.
Based on the information above, the proposed rule is not expected to have a significant adverse impact on small businesses.
Notice of Hearings
Corrections
Notice is hereby given that pursuant to ss. 301.03 (2) and 227.11 (2) (a), Stats., that the Department of Corrections proposes s. DOC 309.05 (2) (d), relating to the stamping of outgoing inmate mail.
Hearing Information
January 10, 1997 Secretary's Conference Room
Friday Department of Corrections
10:00 a.m. 149 East Wilson St., 3rd Floor
MADISON, WI
January 13, 1997 Room 223
Monday State Office Building
10:00 a.m. 141 Northwest Barstow St.
WAUKESHA, WI
January 14, 1997 Chippewa Valley Room
Tuesday State Office Bldg., 2nd Floor
1:00 p.m. 718 West Clairemont
EAU CLAIRE, WI
The public hearing sites are accessible to people with disabilities.
Analysis Prepared by the Department of Corrections
Wisconsin state prison inmates' outgoing mail is generally not reviewed or censored. Inmates have used mail to:
1. Contact the victims of their crimes, which has caused severe emotional distress;
2. Threaten and harass elected officials, law enforcement officers, and other persons; and
3. Defraud mail order and other business.
Since November 1, 1993, pursuant to Internal Management Procedure #35, the Department has stamped outgoing inmate mail to indicate that the mail was sent from the Wisconsin state prison system. IMP #35 was adopted to protect victims of crime, the public, and businesses from inmate harassment and fraud.
The Wisconsin Court of Appeals rules in an unpublished decision that IMP #35 had to be promulgated as an administrative rule. In order to protect the public welfare of the state, it is necessary for the Department to adopt a rule to ensure that victims of crime are not further victimized by inmate mail, that members of the public are not threatened or harassed, and that businesses are not defrauded.
Text of Rule
SECTION 1. DOC 309.05 (2) (d) is created to read:
DOC 309.05 (2) (d) All outgoing inmate mail will be stamped. The stamp will identify the mail as coming from the Wisconsin state prison system.
Initial Regulatory Flexibility Analysis
