Sec. 235-5.1. Innovative products

(a) Any manufacturer of consumer products which have been granted an innovative product exemption by the CARB under the innovative products provisions in section 94511 or 94503.5 of title 17 of the California Code of Regulations (see Table 1, section 200.9 of this Title) shall be exempt from the Table of Standards in section 235-3.1(a) of this Part for the period of time that the CARB innovative products exemption remains in effect provided that all consumer products within the CARB innovative products exemption are contained in the Table of Standards in section 235-3.1(a) of this Part. Any manufacturer claiming such an exemption on this basis must submit to the director, Division of Air Resources, Department of Environmental Conservation a copy of the CARB innovative product exemption decision (i.e., the Executive Order), including all conditions established by CARB applicable to the exemption. When approved by the director, Division of Air Resources, Department of Environmental Conservation, the innovative product exemption will be submitted to the United States Environmental Protection Agency as a State Implementation Plan revision for approval.

(b) Manufacturers of consumer products that have been granted an innovative products exemption under the innovative products provisions in sections 94511, or 94503.5 of title 17 of the California Code of Regulations (see Table 1, section 200.9 of this Title) based on California specific data, or that have not been granted an exemption by the CARB may seek an innovative products exemption in accordance with the following criteria:

(1) The director, Division of Air Resources, Department of Environmental Conservation shall exempt a consumer product from the VOC content limits specified in section 235-3.1(a) of this Part if a manufacturer demonstrates by clear and convincing evidence that, due to some characteristic of the product formulation, design, delivery systems or other factors, the use of the product will result in less VOC emissions as compared to:

(i) the VOC emissions from a representative consumer product which complies with the VOC content limits specified in section 235-3.1(a) of this Part; or

(ii) the calculated VOC emissions from a noncomplying representative product, if the product had been reformulated to comply with the VOC content limits specified in section 235-3.1(a) of this Part. VOC emissions shall be calculated using the following equation:

E_R = E_NC × VOC_STD ÷ VOC_NC

where,

E_R = the VOC emissions from the noncomplying representative product, had it been reformulated.

E_NC = the VOC emissions from the noncomplying representative product in its current formulation.

VOC_STD = the VOC content limit specified in the Table of Standards in section 235-3.1(a) of this Part.

VOC_NC = the VOC content of the noncomplying product in its current formulation.

If a manufacturer demonstrates that this equation yields inaccurate results due to some characteristic of the product formulation or other factors, an alternative method which accurately calculates emissions may be used upon approval of the director, Division of Air Resources, Department of Environmental Conservation.

(2) For the purposes of this Subpart, representative consumer product means a consumer product which meets all of the following criteria:

(i) the representative product shall be subject to the same VOC content limit in section 235-3.1(a) of this Part as the innovative product;

(ii) the representative product shall be of the same product form as the innovative product, unless the innovative product uses a new form which does not exist in the product category at the time the application is made; and

(iii) the representative product shall have at least similar efficacy as other consumer products in the same product category based on tests generally accepted for that product category by the consumer products industry.

(3) A manufacturer shall apply in writing to the director, Division of Air Resources, Department of Environmental Conservation for any exemption claimed under paragraph (1) of this subdivision. The application shall include the supporting documentation that demonstrates the emissions from the innovative product, including the actual physical test methods used to generate the data and, if necessary, the consumer testing undertaken to document product usage. In addition, the applicant must provide any information necessary to enable the director, Division of Air Resources, Department of Environmental Conservation to establish enforceable conditions for granting the exemption including the VOC content for the innovative product and test methods for determining the VOC content. All information submitted by a manufacturer pursuant to this Subpart shall be handled in accordance with the procedures specified in applicable New York State confidentiality requirements.

(4) Within 30 days of receipt of the exemption application the director, Division of Air Resources, Department of Environmental Conservation shall determine whether an application is complete as provided in applicable New York State laws or regulations.

(5) Within 90 days after an application has been deemed complete, the director, Division of Air Resources, Department of Environmental Conservation shall determine whether, under what conditions, and to what extent, an exemption from the requirements of section 235-3.1(a) of this Part will be permitted. The applicant and the director, Division of Air Resources, Department of Environmental Conservation may mutually agree to a longer time period for reaching a decision, and additional supporting documentation may be submitted by the applicant before a decision has been reached. The director, Division of Air Resources, Department of Environmental Conservation shall notify the applicant of the decision in writing and specify such terms and conditions that are necessary to insure that emissions from the product will meet the emissions reductions specified in paragraph (1) of this subdivision, and that such emissions reductions can be enforced. When approved by the director, Division of Air Resources, Department of Environmental Conservation, the innovative product exemption will be submitted to the United States Environmental Protection Agency as a State Implementation Plan revision for approval.

(6) In granting an exemption for a product the director, Division of Air Resources, Department of Environmental Conservation shall establish conditions that are enforceable. These conditions shall include the VOC content of the innovative product, dispensing rates, application rates and any other parameters determined by the director, Division of Air Resources, Department of Environmental Conservation to be necessary. The director, Division of Air Resources, Department of Environmental Conservation shall also specify the test methods for determining conformance to the conditions established. The test methods shall include criteria for reproducibility, accuracy, sampling and laboratory procedures.

(7) For any product for which an exemption has been granted pursuant to this Subpart, the manufacturer shall notify the director, Division of Air Resources, Department of Environmental Conservation in writing within 30 days of any change in the product formulation or recommended product usage directions, and shall also notify the director, Division of Air Resources, Department of Environmental Conservation within 30 days if the manufacturer learns of any information which would alter the emissions estimates submitted to the director, Division of Air Resources, Department of Environmental Conservation in support of the exemption application.

(8) If the VOC content limits specified in section 235-3.1(a) of this Part are lowered for a product category through any subsequent rule making, all innovative product exemptions granted for products in the product category, except as provided in this paragraph, shall have no force and effect as of the effective date of the modified VOC content limit. This paragraph shall not apply to those innovative products which have VOC emissions less than the applicable lowered VOC content limit and for which a written notification of the product's emissions status versus the lowered VOC content limit has been submitted to and approved by the director, Division of Air Resources, Department of Environmental Conservation at least 60 days before the effective date of such limits.

(9) If the director, Division of Air Resources, Department of Environmental Conservation believes that a consumer product for which an exemption has been granted no longer meets the criteria for an innovative product specified in paragraph (1) of this subdivision, the director, Division of Air Resources, Department of Environmental Conservation may review, and for good cause, modify or revoke the exemption in accordance with Part 621 of this Title and the procedures therein as necessary to assure that the product will meet these criteria.