Home » 2009 Issues » September 30, 2009 » ENV-24-09-00005-A Volatile Organic Compound (VOC) Limits for 11 New Consumer Products Categories and Revisions to one Existing Category
ENV-24-09-00005-A Volatile Organic Compound (VOC) Limits for 11 New Consumer Products Categories and Revisions to one Existing Category
9/30/09 N.Y. St. Reg. ENV-24-09-00005-A
NEW YORK STATE REGISTER
VOLUME XXXI, ISSUE 39
September 30, 2009
RULE MAKING ACTIVITIES
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
NOTICE OF ADOPTION
I.D No. ENV-24-09-00005-A
Filing No. 1090
Filing Date. Sept. 15, 2009
Effective Date. s , 30 d
Volatile Organic Compound (VOC) Limits for 11 New Consumer Products Categories and Revisions to one Existing Category
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Volatile organic compound (VOC) limits for 11 new consumer products categories and revisions to one existing category.
Purpose:
To assist in attaining and maintaining the Federal eight-hour ozone standard for New York's designated nonattainment areas.
Substance of final rule:
SUBPART 235-1
APPLICABILITY
Sec. 235-1.1 Applicability
The proposed revisions to Part 235 remove the reference to "January 1, 2005" in section 235-1.1. The applicable effective dates are addressed in the Table of Standards in section 235-3.1.
SUBPART 235-2
DEFINITIONS
Sec. 235-2.1 Definitions
The proposed revisions to Part 235-2.1 include definitions for eleven new categories of consumer products that are being regulated in the revised Part 235. The new categories are: adhesive remover (including subcategories), anti-static (non-aerosol), electrical cleaner, electronic cleaner, fabric refresher, footwear or leather care, graffiti remover, hair styling products, shaving gel, toilet/urinal care, and wood cleaner. The Department is also proposing to add definitions for the contact adhesive product category and is revising the definitions for two previously regulated product categories: air fresheners and general purpose degreasers.
The Department proposes to modify several of the existing definitions and add other new definitions. For example, the Department is modifying the existing definition of "deodorant" and is adding a new definition for "deodorant body spray." Some of the new definitions come from the revised Ozone Transport Commission (OTC) model rule for Consumer Products. These definitions include: "APC VOC Standard," "Energized electrical cleaner," and "Existing product."
SUBPART 235-3
STANDARDS
Sec. 235-3.1 Standards
The proposed revisions to section 235-3.1 amend the Table of Standards to include the VOC limits for the new categories (including subcategories) and the revised VOC limits for the Contact Adhesive product category. The prohibitions concerning sale of these consumer products will apply to any such products manufactured on or after January 1, 2010 which contains volatile organic compounds (VOCs) in excess of the VOC content limits specified in the Table of Standards (Subpart 235-3.1[a]). The additions to the Table are listed below:
Additions to Table of Standards
Product Category
VOC Content Limit
(percent by weight)
Adhesives Remover:
Floor or Wall Covering
5
Gasket or Thread Locking
50
General Purpose
20
Specialty
70
Adhesives:
Contact General Purpose
55
Contact Special Purpose
80
Anti-Static Product:
Non-aerosol
11
Electrical Cleaner
45
Electronic Cleaner
75
Fabric Refresher:
Aerosols
15
Non-Aerosols
6
Footwear or Leather Care Product:
Aerosol
75
Solid
55
Other Forms
15
Graffiti Remover:
Aerosol
50
Non-Aerosols
30
Hair Styling Products:
Aerosols and Pump Sprays
6
All Other Forms
2
Shaving Gel
7
Toilet/Urinal Care:
Aerosol
10
Non-Aerosol
3
Wood Cleaner:
Aerosol
17
Non-Aerosol
4
The proposed revisions to Part 235-3.1 include an unlimited sell through for products that are manufactured before January 1, 2010, except for the products that contain the following compounds: para-dichlorobenzene (solid air fresheners and toilet/urinal care products), methylene chloride, perchloroethylene, or trichloroethylene (adhesive removers (including subcategories), contact adhesives, electrical cleaners, electronic cleaners, footwear or leather care products, general purpose degreasers and graffiti removers). Products containing these compounds will have an one year limited sell through until January 1, 2011. The VOC standards for the FIFRA (Federal Insecticide, Fungicide, and Rodenticide Act) products listed under subdivision 235-3.1(a) will have an effective date of January 1, 2011.
The Department is also proposing modifications for Subpart 235-3.1(g), Requirements for aerosol adhesives. The Department is adding language to Subdivision 235-3.1(g)(2)(i) to help in determining the proper classifications of the spray adhesives products that fall under Part 235.
SUBPART 235-4
EXEMPTIONS
Sec. 235-4.1 Exemptions
Under the proposed revisions, solid air fresheners containing at least 98 percent para-dichlorobenzene are exempted from the VOC limits in Subpart 235-3.1(a) until January 1, 2010. On or after January 1, 2010, solid air fresheners containing para-dichlorobenzene would fall under new Subpart 235-3.1(n), "Requirements for solid air fresheners and toilet/urinal care products."
SUBPART 235-5
INNOVATIVE PRODUCTS
Sec. 235-5.1 Innovative Products
Added language stating that 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.
SUBPART 235-6
ADMINISTRATIVE REQUIREMENTS
Sec. 235-6.1 Administrative Requirements
Proposed section 235-6.1(a), "product dating," has added language that if a manufacturer uses the proposed product date code (YY DDD = year year day day day) to indicate the date of manufacture then the manufacturer shall not be subject to section 235-6.1(b)(1), "additional product dating requirements." The code must be listed separately from the other codes on the product container so that it is easily recognizable. Proposed section 235-6.1(b) has been updated to include language that if a manufacturer changes any code indicating the date of manufacture for any consumer product subject to section 235-3.6(b)(1) of this Part, an explanation of the modified code must be submitted to the Department before the close of business on December 31, 2010. No person shall erase, alter, deface, or otherwise remove or make illegible any date or code indicating the date of manufacture from any regulated product container without the express authorization of the manufacturer. Date code explanations for codes indicating the date of manufacture are public information and may not be claimed as confidential.
Proposed section 235-6.1(c), "most restrictive limit," has been amended so that if anywhere on the container or packaging, or on any sticker or label affixed thereto, any representation is made that the product may be used as, or is suitable for use as a consumer product for which a lower VOC limit is specified in Subpart 235-3.1(a), then the lowest VOC limit shall apply. This revision applies to consumer products manufactured on or after January 1, 2010 and FIFRA registered products manufactured on or after January 1, 2011. For consumer products manufactured before January 1, 2010 and FIFRA registered products manufactured before January 1, 2011, the current Part 235 only requires the most restrictive limit to appear only on the product's principal display panel. The revisions to Part 235 also include additional labeling requirements for the following categories: adhesives removers, electronic cleaner, energized electrical cleaner and contact adhesives.
SUBPART 235-7
REPORTING REQUIREMENTS
Sec. 235-7.1 Reporting Requirements
Proposed revisions to section 235-3.7(a) would clarify that if the responsible party does not have or does not provide the information requested by the director, Division of Air Resources, Department of Environmental Conservation, the director may require the reporting of this information by the person who has the information, including, but not limited to, any formulator, manufacturer, supplier, parent company, private labeler, distributor, or repackager. Other minor changes have made in this section to clarify the text for the purposes of reporting.
Subpart 235-7.1(d) had added language to include "energized electrical cleaners" as defined in Subpart 235-2.1(bf) for the purposes of reporting if the "energized electrical cleaners" contain 1.0 percent or more by weight (exclusive of the container or packaging) of either perchloroethylene or methylene chloride.
SUBPART 235-8
VARIANCES
Sec. 235-8.1 Variances
Added language stating that when approved by the director, Division of Air Resources, Department of Environmental Conservation, the variance will be submitted to the United States Environmental Protection Agency as a State Implementation Plan revision for approval.
SUBPART 235-9
TEST METHODS
Sec. 235-9.1 Test methods
Added language stating that when approved by the director, Division of Air Resources, Department of Environmental Conservation, the alternative test method will be submitted to the United States Environmental Protection Agency as a State Implementation Plan revision for approval.
SUBPART 235-10
SEVERABILITY
Sec. 235-10.1 Severability
No Revisions.
SUBPART 235-11
ALTERNATIVE CONTROL PLAN (ACP) FOR CONSUMER PRODUCTS
Sec. 235-11.1 Alternative control plan for consumer products
Added language stating that when approved by the director, Division of Air Resources, Department of Environmental Conservation, the Alternative Control Plan (ACP) will be submitted to the United States Environmental Protection Agency as a State Implementation Plan revision for approval.
PART 200
General Provisions
Section 200.9 of 6 NYCRR Part 200 contains a list of documents that have been referenced by the Department in regulations contained in 6 NYCRR Chapter III, Air Resources. The Department is proposing to amend this list to reflect references necessary to amending Part 235.
Final rule as compared with last published rule:
Nonsubstantive changes were made in sections 235-2.1(cl), 235-3.1(l)(2), 235-5.1(a), (b)(5), 235-6.1(b)(1), 235-8.1(a), 235-9.1(a), 235-11.1 and 235-11.1(a).
Text of rule and any required statements and analyses may be obtained from:
Arthur Robinson, NYSDEC, Division of Air Resources, 625 Broadway, Albany, NY 12233-3251, (518) 402-8396, email: airregs@gw.dec.state.ny.us
Additional matter required by statute:
Pursuant to Article 8 of the State Environmental Quality Review Act, a Short Environmental Assessment Form, a Negative Declaration and a Coastal Assessment Form have been prepared and are on file. This rule was approved by the Environmental Board.
Summary of Revised Regulatory Impact Statement
STATUTORY AUTHORITY
The statutory authority for these amendments to the revised Part 235 is the Environmental Conservation Law (ECL) Sections 1-0101, 3-0301, 3-0303, 19-0103, 19-0105, 19-0107, 19-0301, 19-0303, 19-0305, 71-2103 and 71-2105.
LEGISLATIVE OBJECTIVES
It is the declared policy of the state of New York, as pronounced by the Legislature in the Environmental Conservation Law, to maintain a reasonable degree of purity of the air resources of the State consistent with the public health and welfare and the public enjoyment and the protection of physical property and other resources. In furtherance of this policy and the Legislature's objectives, the proposed rule will be protective of public health by providing limits to control ozone precursors.
NEEDS AND BENEFITS
New York faces a significant public health challenge from ground-level ozone: which causes health effects in humans ranging from respiratory disease to death. In response to this public health problem, New York has enacted a series of regulations designed to control ozone and its chemical precursors which include volatile organic compounds (VOCs). Among other regulatory actions, New York has promulgated regulations designed to limit the VOCs emitted by various product categories know as consumer products. 'See 6 NYCRR Part 235 (Consumer Products regulation)'.
The New York City, Poughkeepsie, Buffalo-Niagara Falls and Jamestown metropolitan areas and Essex County (Whiteface Mountain above 1,900 feet) are currently designated as nonattainment for the 1997 ozone National Ambient Air Quality Standards (NAAQS) of 0.08 parts per million. As part of its ozone attainment demonstration, the Department has requested that the New York City Metropolitan Area be reclassified in accordance with the provisions of section 181(b)(3) of the Clean Air Act as a serious ozone nonattainment area and have an attainment date of 2013. The Poughkeepsie Metropolitan Area was classified as a moderate nonattainment area with an attainment date 2010. The Albany-Schenectady-Troy Metropolitan Area, Jefferson County and the Rochester Metropolitan Area are currently designated as nonattainment under the 1997 ozone NAAQS, but have a clean data determination for having at least 3 years of data meeting the standard. The Department is applying for clean data determinations for Essex County and the Poughkeepsie, Buffalo-Niagara Falls and Jamestown metropolitan areas based on monitored data from 2006 to 2008. This leaves the New York City area as the lone area in the State currently monitoring nonattainment with the 1997 ozone NAAQS.
On March 27, 2008, EPA promulgated a stricter ozone NAAQS. On March 12, 2009, the Department after analyzing measured ozone data for the years 2006 - 2008 recommended that the New York City, Poughkeepsie-Newburgh-Kingston, Albany-Schenectady-Troy-Glens Falls, Rochester, Buffalo-Niagara Falls and Jamestown metropolitan areas be designated nonattainment for the 2008 ozone NAAQS. This represents 32 counties with a population of nearly 17 million people or over 86 percent of the State's population. EPA is expected to designate and classify ozone nonattainment areas by March 12, 2010 which will likely establish 2016 and 2013 as the attainment dates for the New York City Metropolitan Area and the rest of the State, respectively.
As can be seen by the above listing, ozone nonattainment is a pervasive problem that exists in areas throughout the State. The emission reductions from this proposed action will assist the New York City Area in coming into compliance with both the 1997 and 2008 ozone NAAQS, and other areas of the State in coming into compliance with the 2008 ozone NAAQS.
As part of the Ozone Transport Region (OTR), which is comprised of the 12 Mid-Atlantic and Northeast States and the District of Columbia, New York State has participated in the State-led Ozone Transport Commission (OTC) Workgroups. The OTC has developed model rules to address the EPA identified emission reduction shortfalls. One of the model rules developed by the OTC to assist the OTR States in making progress towards reducing the eight-hour ozone levels by regulating VOCs was the 2001 model rule for consumer products. On October 22, 2004, the New York State Department of Environmental Conservation (Department) promulgated the existing consumer products regulation which sought to limit or reduce the amount of VOCs released into the atmosphere from Consumer Products. 'See 6 NYCRR Part 235 (Consumer Products regulation)'. Consistent with New York's obligations under the Clean Air Act, New York submitted its Consumer Products regulation to EPA as part of New York's SIP. On January 23, 2004, EPA approved the incorporation of Part 235 into New York's SIP.
In order to continue making progress towards reducing the eight-hour ozone levels in the EPA designated nonattainment areas within New York State, the Department once again has worked with the OTC in the process of updating existing and developing new model rules. The 2006 Consumer Products model rule is one of the OTC model rules that have been revised and the reductions in ozone precursors (VOCs) will assist the Department in attaining and maintaining the eight-hour ozone standard for New York's designated nonattainment areas.
The Department now proposes to amend 6 NYCRR Part 235 "Consumer Products" based on the revised OTC consumer products model rule. The amendments to Part 235 will be based on the work performed by the OTC workgroup which used the California Air Resources Board (CARB) consumer products program amendments that took effect on December 31, 2006. The Department's proposal incorporates 11 new categories of consumer products, along with their respective VOC limits, for the following: adhesive remover (including subcategories), anti-static (non-aerosol), electrical cleaner, electronic cleaner, fabric refresher, footwear or leather care, graffiti remover, hair styling products, shaving gel (the first tier VOC limit of seven percent), toilet/urinal care, and wood cleaner. The Department also proposes to incorporate the CARB amendments that will revise the existing VOC limit for the contact adhesive product category and to include additional requirements for two previously regulated product categories: air fresheners and general purpose degreasers. The VOC content limit did not change in these two categories. The resulting revisions will result in an estimated VOC reduction benefit of 3.4 tons per day (tpd) for New York State.
The Department is proposing a prohibition on the use of three Toxic Air Contaminants (TACs), methylene chloride (MeCL), perchloroethylene (Perc), and trichloroethylene (TCE) in seven categories in the revised consumer products rule because they have the potential to cause cancer and could also cause non-cancer health issues. The seven categories are as follows: 1) adhesive removers (including subcategories: floor or wall covering, gasket or thread locking, general purpose, and specialty), 2) contact adhesive, 3) electrical cleaners, 4) electronic cleaners, 5) footwear or leather products, 6) general purpose degreasers, and 7) graffiti removers.
The Department is proposing a prohibition on the use of para-dichlorobenzene (PDCB), which is a chlorinated benzene compound, in the solid air fresheners and toilet/urinal care products categories. PDCB has been designated by the International Agency for Research on Cancer as a possible carcinogen to humans and has the potential to cause non-cancer health effects.
The Department is proposing modifications to several of the existing definitions. For example, the Department is proposing to modify the existing definition of "deodorant" to include certain body spray products. The amended definition will apply to products manufactured on or after January 1, 2010. Body spray products that contain language on the container or packaging, or on any sticker or label affixed thereto, stating that the product can be used on or applied to the human axilla are considered deodorants. Body spray products that are not so labeled are considered deodorant body sprays. The definition for "deodorant body spray" has been included in the proposed amendments to Part 235 to address body spray products which do not fall under the definition of "deodorant." There is no VOC content limit proposed for "deodorant body spray."
The Department is proposing to amend 6 NYCRR Part 200 (Table 1; section 200.9) to reflect changes made to Part 235. The Department has added and updated reference documents under Referenced Material in Table 1, section 200.9.
COSTS
Costs to Regulated Parties and Consumers:
The cost of the proposed regulation will affect any person who sells, manufactures or buys an applicable consumer product in New York State. A Statewide regulation consistent with the other OTC states will reduce production and marketing costs associated with the distribution of complying products to meet uniform standards.
A CARB analysis of consumer product reformulation costs was estimated to be $2.00 per pound ($4,000.00 per ton) of VOCs reduced. This estimate may be high depending on whether a manufacturer needs to reformulate or can substitute products with compliant products that are already on the market. The Department estimates that the costs incurred to comply with the VOC limits in the OTC model rule are the same as those determined by CARB.
As explained in CARB's Technical Support Document, the average increase in cost per unit to the manufacturer is estimated to be about $0.16. Also, CARB expects most manufacturers to be able to absorb the added costs of the regulation without an adverse impact on their profitability.
Costs to State and Local Governments:
There are no direct costs to State and local governments associated with this proposed regulation. No record keeping, reporting, or other requirements will be imposed on local governments. Requirements for record keeping, reporting, etc. are applicable only to the person(s) who manufactures, sells, supplies, or offers for sale consumer products.
Costs to the Regulating Agency:
The Department will experience a small increase in workload as a result of this rule making. As noted above, the application of a Statewide regulation will help conserve resources as valuable staff time will not be required to track the trafficking of non-complying products across state and county lines.
LOCAL GOVERNMENT MANDATES
No additional record keeping, reporting, or other requirements will be imposed on local governments under the proposed rulemaking. The authority and responsibility for implementing and administering proposed Part 235 resides solely with the Department. Requirements for record keeping, reporting, etc. are applicable only to the person(s) who manufactures, sells, supplies, or offers for sale consumer products.
PAPERWORK
In the revised Part 235, the Department is proposing that manufacturers can use either the date of manufacture, the proposed specified code (YY DDD = year year day day day) or an explanation of the date portion of the code that must be on file with the Department by the close of business on December 31, 2010 if the proposed code is not used by the manufacturer.
Currently the most restrictive limit in existing Part 235 only applies to representations made on the principal display panel (front label) of the consumer product. If a representation is made that the same consumer product is suitable for use as a consumer product for which a lower VOC content limit is specified in existing Subpart 235-3.1(a) (Table of Standards), then the lowest VOC limit shall apply. In the proposed revisions to Part 235, any consumer product manufactured on or after January 1, 2010, or any FIFRA registered insecticide manufactured on or after January 1, 2011, is subject to the most restrictive VOC limit that applies. If a product represents anywhere on the label, packaging and all affixed labels or stickers, that the product may be used as, or is suitable for use as a consumer product for which a lower VOC limit is specified in revised Subpart 235-3.1(a) (Table of Standards), then the lowest VOC limit shall apply. This requirement to use the "most restrictive limit" does not apply to general purpose cleaners, antiperspirant/deodorant products and insecticide foggers.
Existing Part 235 carried only additional labeling requirements for aerosol adhesives but the revised Part 235, adds the following categories for additional labeling requirements: 1) adhesive remover, 2) electronic cleaner, 3) electrical cleaner, 4) energized electrical cleaner, and 5) contact adhesive.
Concerning Subpart 235-7.1(a) (Reporting requirements), revised Part 235 would clarify that if the responsible party does not have or does not provide the information requested by the director, Division of Air Resources, Department of Environmental Conservation, the director, Division of Air Resources, Department of Environmental Conservation may require the reporting of this information by the person that has the information, including, but not limited to, any formulator, manufacturer, supplier, parent company, private labeler, distributor, or re-packager.
DUPLICATION
The Department is the only government agency in New York State that regulates the VOC content in consumer products.
ALTERNATIVES
The following alternatives have been evaluated to address the goals set forth above. These are:
1. Take No Action:
The first alternative evaluated was to take no action in the hope compliant products would eventually find their way into the Northeastern marketplace and meet with consumer acceptance. This alternative would have no impact on manufacturers. Furthermore, if DEC's regulations are not amended as proposed, the substance of the proposed changes would not be enforceable and the VOC emissions reductions would not be creditable for purposes of assisting NYS in attaining and maintaining the eight-hour ozone standard for the State's designated nonattainment areas. However, the product categories that will be incorporated into the proposed revisions for Part 235 are currently available to consumers in California and are meeting the requirements of the OTC model rule VOC content limits. For these reasons, the Department rejected this alternative.
2. Regulating fewer product categories than the current CARB program:
The OTC 2006 model rule modifies the OTC 2001 model rule based on CARB's July 20, 2005 amendments. The OTC did not include the Anti-Static Aerosol products and the second tier Shaving Gel limit in its revisions to the OTC 2001 model rule because of industry concerns that meeting these VOC content limits may not be feasible. Reformulation is expected to be especially challenging for these two categories and in the case of shaving gel, CARB proposed a two-tiered limit to reflect technology and production challenges. We are proposing to adopt the first-tier VOC limit (seven percent) for shaving gel and the anti-static non-aerosol products from CARB's July 20, 2005 amendments.
3. "Sell-through" Provision:
A.) No sell through
B.) Three year sell through
C.) Unlimited sell through
The third alternative involves adopting the rule without a no "sell-through" and/or the three-year "sell-through" period. The no "sell-through" provision requires immediate compliance with the standards regardless of the date of manufacture. A three-year "sell-through" provision would allow non-compliant products manufactured prior to the January 1, 2010 compliance date to be sold, supplied, or offered for sale for up to three years. Allowing an unlimited sell-through period for the sale of non-compliant products manufactured before the January 1, 2010 compliance date was determined to be less burdensome to small businesses, less labor intensive, and is appropriate, given that consumer products move through the marketplace rather quickly. This approach also reflects the Department's experience that there has been excellent compliance with the existing Consumer Products rule.
The only exception to the Department's unlimited sell through proposal is an one year limited sell through (until January 1, 2011) for the following: 1) for the categories of solid air fresheners and toilet/urinal care products that contain para-dichlorobenzene; 2) for the categories adhesive remover (including subcategories), contact adhesive, electrical cleaner, electronic cleaners, footwear or leather care products, general purpose degreasers and graffiti remover that contain methylene chloride, perchloroethylene, or trichloroethylene. The Department is proposing this limited sell through on para-dichlorobenzene, methylene chloride, perchloroethylene, or trichloroethylene because they are all suspected carcinogens and to be consistent with CARB.
COMPLIANCE SCHEDULE
The proposed amendments to Part 235 and Part 200 would take effect on January 1, 2010. Manufacturers, distributors and sellers of consumer products must comply with the VOC content limits in the revised regulation as of that date. Compliance alternatives (Subparts 235-5, 235-8, 235-9 and 235-11) when approved by the director, Division of Air Resources, Department of Environmental Conservation will be submitted to the USEPA as SIP revisions for approval.
Revised Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement
No changes were made to the previously published Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement.
Assessment of Public Comment
The Department received 14 comments to the proposed changes to Parts 235 and 200. The comments were grouped as follows:
Applicability
1. Comment: Supports the Promulgation of Uniform Consumer Products Regulations throughout the Ozone Transport Region, therefore offers General Support for the Department's Proposed Amendment. Commentors: 1, 2, 3
Response: The Department thanks the commentors for their general support of the proposal.
2. Comment: Supports the Proposed New VOC Limits with the January 1, 2010, Effective Date. Commentors: 1, 2
Response: The Department thanks the commentors for their support.
3. Comment: Recommends that the Department modify the Alternate Control Plan (ACP) set forth in Subpart 235-11 to allow a California Air Resources Board's (CARB) approved ACP even if the CARB approved ACP is different than what the Department's rule covers. Commentors: 1, 2
Response: This comment is beyond the scope of this proposal. However, the Department has considered the recommendation and has decided not to modify these provisions. The approval of an ACP is specific to a set of circumstances that if altered, may impact by the conclusion drawn by the Department. Therefore, it is necessary to review the particular set of circumstances specific to an ACP application in order to determine its approvability.
4. Comment: Requests that the Department extend the one year sell-through for the seven consumer products categories containing methylene chloride, perchloroethylene or trichloroethylene in Subparts 235-3.1(l) and 235-3.1(m) to three years. Commentors: 1, 2
Response: The Department will not extend the sell through date for the seven consumer products categories containing methylene chloride, perchloroethylene or trichloroethylene since, 'inter alia', the timing of the end of the sell through contained in Part 235 will be consistent with the California Air Resources Board Consumer Products Regulation (See, CARB's Advisory Number 341, November 2005).
In addition, as set forth in the Regulatory Impact Statement (RIS) for this rulemaking: "The TACs (Toxic Air Contaminants) methylene chloride, perchloroethylene and trichloroethylene are chlorinated solvents. They have the potential to cause cancer and exposure to these TACs, whether it is short term or long term, may result in non-cancer adverse health effects. 'See Initial Statement of Reasons for Proposed Amendments to the California Consumer Product Regulation, IX, Environmental Impacts, IX-225 - IX-234, (May 7, 2004)'. The ban on the use of these chlorinated compounds in previous CARB rulemakings has shown that the use of these compounds posed an unnecessary health hazard. In 2000, based on modeling results showing the potential for increased cases of cancer and because many alternative products were available, CARB banned the use of them in the following categories: 1) general purpose degreasers designed for automotive use, 2) engine degreasers, 3) brake cleaners, 4) carburetor and fuel injection cleaners, 5) aerosol adhesives, and 6) aerosol coatings. 'See Initial Statement of Reasons for Proposed Amendments to the California Consumer Product Regulation, IX, Environmental Impacts, IX-234, (May 7, 2004)'."
Based upon the health concerns stated in the RIS, and the consistency of the timing of the end of the sell-through period with the California regulation, the one year sell-through is appropriate.
5. Comment: Does not object to the one year sell through limit for Para-dichlorobenzene. Commentors: 1, 2
Response: The Department thanks the commentors for their support.
6. Comment: The Department should provide a reasonable amount of time to file an explanation of their Unique Date Codes with regard to Subpart 235-6.1(b)(1). Commentors: 1, 2, 3
Response: Thank you for the comment. The Department will be modifying the proposal. The Department does not expect many new companies to be required to file a date code under this revised rule. Companies that have already filed this information with the Department need not file the information again unless it has changed.
7. Comment: Supports the Promulgation of the Consumer Products Regulation to control Volatile Organic Compounds (VOCs). Commentors: 5, 6, 7, 8
Response: The Department thanks the commentors for their support.
Health
8. Comment: The Department should do more in regulating VOCs from products that are used indoors. Commentor: 5
Response: This comment is beyond the scope of this rulemaking. While many of the consumer products that are regulated under Part 235 are used indoors, the primary purpose of this regulation is to control VOC emissions because they are a precursor to the formation of ground level ozone (for a detailed discussion of the role of VOCs in ozone, please see the Regulatory Impact Statement pages 4 through 13). In addition to the ozone benefits resulting from this proposal, the Department has included restrictions on the Toxic Air Contaminants; methylene chloride, perchloroethylene and trichloroethylene.
9. Comment: Wants the Department to discontinue the Alternative Control Plan (ACP). The concern is that the ACP may allow hotspots from high VOCs to be sold and used in Environmental Justice communities in New York State. Commentor: 5
Response: The Department disagrees with this comment because of the mix and the wide distribution of consumer products makes the potential for hot spots highly unlikely. Historically, an ACP provides for an additional environmental benefit that otherwise would not happen by strictly adhering with VOC limits in the regulation. Therefore, the use of ACPs is likely benign or even beneficial.
10. Comment: The Department should do more to regulate floor finishers (moisture cure) and certain other products (Hagerty's Silver Polish, Well Done St. Moritz (oven cleaners), Tarrago (shoe polish)) since they are causing health problems when used indoors. Commentor: 6
Response: The Department points out that moisture cure floor coatings are currently regulated under Part 205 and metal polishes and oven cleaners are currently regulated under Part 235. In addition, this proposal includes new VOC limits and bans the TACs (Toxic Air Contaminants) methylene chloride, perchloroethylene or trichloroethylene for the category of "Footwear or Leather Care Product."
11. Comment: Supports the Promulgation of the Consumer Products Regulation to control VOCs and the banning certain toxic air emissions in Commercial Products. Commentors: 7, 8
Response: The Department thanks the commentors for their support.
12. Comment: VOCs are a dangerous contributor to greenhouse gases and can lead to cancer, liver disease and other health problems. Commentor: 7
Response: Thank you for your comment. As set forth in the RIS, New York faces a significant public health challenge from ground-level ozone: which causes health effects in humans ranging from respiratory disease to death. In response, the Department has enacted a series of regulations designed to control ozone and its chemical precursors which include volatile organic compounds (VOCs). This proposal is designed to limit the VOCs emitted by various product categories know as consumer products.
13. Comment: People are dying from lead poisoning and children are being exposed to lead from lead paint that is chipping in old buildings. Commentor: 9
Response: This comment is beyond the scope of this proposal.
Authority
14. Comment: Any compliance alternatives (Section 235-5.1 (Innovative Products), Section 235-8.1 (Variances), Section 235-9.1 (Test Methods), and Section 235-11.1 (Alternative Control Plan (ACP)) that are granted by or accepted by the Department, must be submitted to the USEPA as State Implementation Plan (SIP) revisions for approval in order for the compliance alternatives to be enforceable. Commentor: 4
Response: The Department has included language in Subparts 235-5.1, 235-8.1, 235-9.1 and 235-11.1 stating that the compliance alternatives when approved by the director, Division of Air Resources, Department of Environmental Conservation will be submitted to the USEPA as SIP revisions for approval.
List of Commentors
1. D. Douglas Fratz, Consumer Specialty Products Associations; Joseph T. Yost, Consumer Specialty Products Associations
2. Joseph T. Yost, Consumer Specialty Products Associations
3. Frances K. Wu, Personal Care Products Council
4. Richard Ruvo, United States Environmental Protection Agency
5. Meg Brown, WE ACT for Environmental Justice
6. Rabbi Lipa Sofa, Healthy Environment and Safety Solutions
