EPA
United States Office of Air Quality EPA-453/R-98-008b
Environmental Protection Planning and Standards August 1 998
Agency _ Research Triangle Park NC 2771 1 _
Air _
National Volatile Organic Compound
Emission Standards for Consumer
Products Background for
Promulgated Standards
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RESPONSE TO COMMENTS ON SECTION 183(e)
STUDY AND REPORT TO CONGRESS
Emission Standards Division
U.S. Environmental Protection Agency
Office of Air and Radiation
Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 27711
August 1998
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DISCLAIMER
This report has been reviewed by the Emission Standards Division
of the Office of Air Quality Planning and Standards, EPA, and
approved for publication. Mention of trade names or commercial
products is not intended to constitute endorsement or
recommendation for use. Copies of this report are available from
National Technical Information Services, 5285 Port Royal Road,
Springfield, VA 22161.
11
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TABLE OF CONTENTS
1.0 LIST OF COMMENTERS 1-1
2.0 SUMMARY OF PUBLIC COMMENTS 2-1
2.1.1 Ranking Process 2-5
2.1.1.1 Adequacy of the Section 183(e) Study and
Report to Congress 2-6
2.1.1.3 Subgroups Addressed by the Study and
Ranking Process 2-22
2.1.1.4 Consideration of the Impacts of
Regulatory Alternatives 2-25
2.1.1.5 Consideration of Cost-Effectiveness
2-29
2.1.1.6. Category Scoring Process and Public
Meeting , . 2-33
2.1.1.7 Ranking of Architectural Coatings . 2-42
2.1.2 Volatile Organic Compound Inventory . . . 2-52
2.1.2.1 Reportable Volatile Organic Compound
Concerns 2-52
2.1.2.2 Consideration of Biogenic Sources of
Volatile Organic Compounds 2-58
2.1.2.3 Accuracy of Inventory .... 2-63
2.2 REACTIVITY 2-69
2.2.1 Ranking Of Categories On Reactivity Basis For
Study 2-69
2.2.1.1 Reactivity Study Requirements . . . 2-69
2.2.1.2 Determination of Reactivity .... 2-80
2.2.1.3 Use of Relative Reactivity in Regulations
2-87
2.2.2 Potential Of Consumer And Commercial Product VOC
To Contribute To Ozone Nonattainment . 2-90
2.3 EPA'S REGULATORY STRATEGY 2-103
2.3.1 National Rule Versus Other Strategies . . 2-103
2.3.1.1 Necessity of Additional National
VOC Rules 2-104
2.3.1.2 Appropriateness of Additional
National Volatile Organic Compound Rules
2-106
2.3.1.3 Use of Control Techniques Guidelines
2-108
2.3.1.4 Most of the Nation is Already in
Attainment 2-116
2.3.1.5 Authority to Regulate Attainment
Areas 2-122
2.3.1.6 Role of National Rules in Achieving
Uniform Regulation 2-129
2.3.2 Nitrogen Oxides Versus Volatile Organic
Compounds Emissions Control Strategies . . . 2-132
111
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TABLE OF CONTENTS (CONTINUED)
Page
2.3.2.1 Control Strategy is Flawed: Nitrogen
Oxide Control is Needed to Reduce Ozone
2-133
2.3.2.2 Contribution of Biogenic VOC Sources
versus Anthropogenic Sources to Ozone
Nonattainment 2-144
2.3.2.3 Role of Combustion Sources in Ozone
Nonattainment 2-150
2.3.2.4 The Role of Long-Range Transport of
Nitrogen Oxides in Ozone Nonattainment
2-155
2.3.2.5 A VOC Regulatory Approach Has Been
Based on Flawed Data . 2-158
2.3.2.6 The EPA's Air Quality Models . 2-163
2.3.2.7 The EPA Study Incorrectly Evaluated the
Cost Effectiveness Ranking Criterion . 2-167
2.3.2.8 Effect of VOC Controls on Peak Ozone
Concentrations 2-171
2.3.3 Miscellaneous Regulatory Issues 2-172
2.3.4 Economic And Social Impacts Of National VOC
Rules 2-175
2.4 CONSTITUTIONAL AND OTHER MISCELLANEOUS LEGAL ISSUES
2-177
2.4.1 Clean Air Act Issues 2-177
2.4.1.1 Ultra Vires Consideration of
Regulatory Criteria 2-177
2.4.1.2 No Legal Justification for
Regulation of Area Sources 2-178
2.4.2 Procedural Issues 2-179
2.4.2.1 Regulations Void Ab Initio . . 2-179
2.4.2.2 Conflict of Interest
2-181
2.4.2.3 Information Disclosure . 2-182
2.4.3 Constitutional Issues 2-185
2.4.3.1 Regulation of Consumer and
Commercial Products is an Unconstitutional
Restraint on Trade 2-185
2.4.3.2 Violations of Due Process . . 2-187
IV
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LIST OF TABLES
Table. Page
TABLE 1-1. LIST OF COMMENTERS ON THE SECTION 183(e) REPORT TO
CONGRESS AND LIST AND SCHEDULE OF CONSUMER PRODUCT
CATEGORIES TO BE REGULATED 1-3
TABLE 1-2. LIST OF UNSUMMARIZED ITEMS RECEIVED BEFORE
PUBLICATION OF THE PROPOSED ARCHITECTURAL COATINGS RULE
1-13
TABLE 1-2. LIST 'OF UNSUMMARIZED ITEMS RECEIVED BEFORE
PUBLICATION OF THE PROPOSED ARCHITECTURAL COATINGS RULE
1-13
TABLE 2-1. VOC EMISSIONS IN 1990 (NATIONWIDE) 2-60
v
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ACRONYM LIST
Act Clean Air Act
BAG best available control
CARB California Air Resources Board
CASAC Clean Air Scientific Advisory Committee of the Science
Advisory Board
CCP Composite Correction Plan
CSMA Chemical Specialities Manufacturers Association
CTG Control Technique Guidelines
EIA Economic Impacts Analysis
EO executive order
EPA Environmental Protection Agency
HAP Hazardous Air Pollutant
IR Incremental Reactivity
MIR Maximum Incremental Reactivity
MOIR Maximum Ozone Incremental Reactivity
NAAQS National Ambient Air Quality Standards
NAPCTAC National Air Pollution Control Techniques Advisory
Committee
NARSTO North American Research Strategy for Tropospheric Ozone
NEPA National Environmental Policy Act of 1969
NO nitric oxide
N02 nitrogen dioxide
NOX nitrogen oxides
OAQPS Office of Air Quality Planning and Standards
OH hydroxyl radicals
02 oxygen
03 ozone
ORD Office of Research and Development
OTA Office to Technology Assessment
OTAG Ozone Transport Assessment Group
PAMS photochemical assessment monitoring stations
ppbv parts per billion, by volume
ppmC parts per million as Carbon
ppm~lmin~lper part per million per minute
RACT reasonably available control technology
Reg-Neg Architectural Coatings Regulatory Negotiations (1992 to
1994)
Report Section 183(e) report to Congress
RFA Regulatory Flexibility Act
RIR relative incremental reactivity
ROMNET Regional Ozone Modeling for Northeast Transport
RVOC Reportable VOC
SCAQMD South Coast Air Quality Management District
SIP State Implementation Plan
tpy tons per year
TSCA Toxic Substances Control Act
UAM Urban Airshed Model
UMRA Unfunded Mandates Reform Act
VOC volatile organic compounds
VI
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1.0 LIST OF COMMENTERS
A list of the commenters, their affiliations, and EPA docket
number assigned to their correspondence is given in table 1-1.
Comments on the section 183(e) report to Congress (Report) and
the list and schedule of consumer product categories to be
regulated were received in four different dockets: (1) the
consumer and commercial product Report docket (A-94-65); (2) the
architectural coatings rulemaking docket (A-92-18); (3) the
consumer products rulemaking docket (A-95-40); and (4) the
automobile refinish coatings rulemaking docket (A-95-18). Each
docket number listed in the table and referenced in this document
is preceded by a two or three letter code indicating the docket
in which the item may be found: AIM signifies the architectural
coatings docket, CCP signifies the docket for the consumer and
commercial product Report, CP signifies the consumer products
docket, and AR signifies the automobile refinish coatings docket.
Some letters were submitted to more than one docket or were
submitted multiple times to the same docket. Any duplicated
letter is listed once with alternate docket numbers listed in
parentheses underneath. Attachments are indented and designated
by a lower case letter following the docket number. When more
than 26 documents were attached, the additional documents are
designated by duplicate lower case letters following the docket
number i.e., aa, bb, etc. Some attachments included their own
attachments, which are numbered following the letter.
Table 1-2 lists an additional 17 docket items containing
comments on the Report that were received in the architectural
coatings docket before publication of the proposed architectural
1-1
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coatings rule. These items were reviewed but were not summarized
in this document because they contained no issues that were not
raised in subsequent letters listed in table 1-1.
1-2
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TABLE 1-1. LIST OF COMMENTERS ON THE SECTION 183 (e) REPORT TO
CONGRESS AND LIST AND SCHEDULE OF CONSUMER PRODUCT
CATEGORIES TO BE REGULATED
Docket number8
Attachments
Commenter and affiliation
AIM-IV-D-02
AIM-IV-D-05
AIM-IV-D-08
AIM-IV-D-16
AIM-IV-D-26
AIM-IV-D-28
AIM-IV-D-30
AIM-IV-D-32
AIM-IV-D-33
N.B. Kisner
President
Triangle Coatings, Inc.
San Leandro, California
W.A. Rostine
President
Cast-0-Magic
Springfield, Missouri
Richard Hardy
President
XIM Products, Incorporated
Westlake, Ohio
James S. Jennison
President
Jennison Industries
Burlington, Iowa
Alaistair MacDonald
Chief Executive Officer
Specialty Coatings & Chemicals, Inc,
North Hollywood, California
K.R. Schultz
Environmental Consultant
DuPont Automotive Products
Wilmington, Delaware
James G. Stilling
Vice-President and General Manager
W.R. Meadows, Incorporated
Elgin, Illinois
G.A. Green
Administrator
Air Quality Division
Oregon Department of Environmental
Quality
Portland, Oregon
B.A. Kwetz
Director
Division of Air Quality Control
Commonwealth of Massachusetts
Executive Office of Environmental
Affairs
Department of Environmental
Protection
Boston, Massachusetts
1-3
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TABLE 1-1. LIST OF COMMENTERS ON THE SECTION 183 (e) REPORT TO
CONGRESS AND LIST AND SCHEDULE OF CONSUMER PRODUCT
CATEGORIES TO BE REGULATED (CONTINUED)
Docket number3
Attachments Commenter and affiliation
AIM-IV-D-49 E.D. Edwards
Owner
Dunn-Edwards Corporation
Los Angeles, California
AIM-IV-D-49b Howard Herman, Esq.
Director of Regulatory Affairs
Representing the Dunn-Edwards
Corporation
Los Angeles, California
AIM-IV-D-50 R.E. Mitchell
Chairman of the Board ,
Dunn-Edwards Corporation
Los Angeles, California
AIM-IV-D-55 R.E. Mitchell
Chairman of the Board
Dunn-Edwards Corporation
Los Angeles, California
AIM-IV-D-82 L.A. Spurlock, Ph.D, CAE
Chemical Manufacturers Association
Arlington, Virginia
AIM-IV-D-93 David Altena
President
Repcolite Paints, Inc.
Holland, Michigan
AIM-IV-D-96 Arthur J. Fossa, P.E.
Director Division of Air Resources
New York State Department of
Environmental Conservation
Albany, New York
AIM-IV-D-115 L.R. Rogers
Director
Regulatory Compliance
Anchor Paint Manufacturing Company
Tulsa, Oklahoma
AIM-IV-D-117 Susan S.G. Wierman
Executive Director
Mid-Atlantic Regional Air Management
Association
Baltimore, Maryland
AIM-IV-D-155 R.E. Mitchell
Chairman of the Board
Dunn-Edwards Corporation
Los Angeles, California
1-4
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TABLE 1-1. LIST OF COMMENTERS ON THE SECTION 183 (e) REPORT TO
CONGRESS AND LIST AND SCHEDULE OF CONSUMER PRODUCT
CATEGORIES TO BE REGULATED (CONTINUED)
Docket number3
Attachments
Commenter and affiliation
AIM-IV-D-161
AIM-IV-D-162
AIM-IV-D-165
AIM-IV-D-166
AIM-IV-D-170
AIM-IV-D-175
AIM-IV-D-177
AIM-IV-D-177a
AIM-IV-D-178
AIM-IV-D-185
Madelyn K. Harding
Administrator, Product Compliance &
Registrations
Sherwin-Williams Company
Cleveland, Ohio
B.R. Appleman
Executive Director
M.J. Masciale
President
Steel Structures Painting Council
(SSPC)
Pittsburgh, Pennsylvania
R. Hardy
President
XIM Products, Incorporated
Westlake, Ohio
J.J. Jennison
President
Jennison Industries
Burlington, Iowa
M.P. Stock
Vice President
TK Products
Minnetonka, Minnesota
M. Uglem
Executive Vice President
Hirchfields Paint Manufacturing,
Incorporated
Minneapolis, Minnesota
E.D. Edwards
Futurist
Greenwood, Minnesota
Attached document entitled "Cause of
Ozone and Peak Ozone Exceedance"
N.B. Kisner
President
Triangle Coatings, Incorporated
San Leandro, California
N.S. Bryson
Crowell & Moring, LLP
for the Thompson-Minwax Company
Washington, District of Columbia
1-5
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TABLE 1-1. LIST OF COMMENTERS ON THE SECTION 183 (e) REPORT TO
CONGRESS AND LIST AND SCHEDULE OF CONSUMER PRODUCT
CATEGORIES TO BE REGULATED (CONTINUED)
Docket number8
Attachments
Commenter and affiliation
AIM-IV-D-189
AIM-IV-D-212
AIM-IV-D-212d
AIM-IV-D-212k
(AIM-IV-D-212p6h)
(AIM-IV-D-212mm)
(CCP-IV-D-06)
(CP-IV-D-35h)
(CP-IV-D-35k3)
AIM-IV-D-212p
(CCP-IV-D-04)
(CP-IV-D-35n)
AIM-IV-D-212p2
(CCP-I-D-13)
(CP IV-D-35e)
AIM-IV-D-212p3
(CCP-I-D-14)
(CP-IV-D-35f)
AIM-IV-D-212p4
(CCP-I-D-18)
(CP-IV-D-35g)
AIM-IV-D-212p5
(CCP-IV-D-05)
(CP-IV-D-35v)
AIM-IV-D-212p6
(CCP-I-D-18)
(CCP-IV-D-02)
(CP-IV-D-35t)
R.J. Nelson
Director
Environmental Affairs
J. Sell
Senior Counsel
National Paint and Coatings
Association
Washington, District of Columbia
Dunn-Edwards Corp.
Los Angeles, California
Attached article from Environmental Week
entitled "Ozone Control Strategies
Flawed, Says EPA Scientist"
R.E. Mitchell
Chairman of the Board
Dunn-Edwards Corporation
Los Angeles, California
R.E. Mitchell
Chairman of the Board
Dunn-Edwards Corporation
Los Angeles, California
R.E. Mitchell
Chairman of. the Board
Dunn-Edwards Corporation
Los Angeles, California
R.E. Mitchell
Chairman of the Board
Dunn-Edwards Corporation
Los Angeles, California
R.E. Mitchell
Chairman of the Board
Dunn-Edwards Corporation
Los Angeles, California
R.E. Mitchell
Chairman of the Board
Dunn-Edwards Corporation
Los Angeles, California
R.E. Mitchell
Chairman of the Board
Dunn-Edwards Corporation
Los Angeles, California
1-6
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TABLE 1-1. LIST OF COMMENTERS ON THE SECTION 183 (e) REPORT TO
CONGRESS AND LIST AND SCHEDULE OF CONSUMER PRODUCT
CATEGORIES TO BE REGULATED (CONTINUED)
Docket number8
Attachments
Commenter and affiliation
AIM-IV-D-212p6i
(CP-IV-D-35J)
AIM-IV-D-212p6q
(CP-IV-D-35s4)
AIM-IV-D-212p6r
(CP-IV-D-35s5)
AIM-IV-D-214
AIM-IV-D-214b
(CP-IV-D-07b)
AIM-IV-D-214C
AIM-IV-F-lc
AIM-IV-F-ld
AIM-IV-F-lk
AIM-IV-F-11
AIM-IV-F-lo
CCP-I-D-17
(CCP-IV-D-03)
R.E. Mitchell
Chairman of the Board
Dunn-Edwards Corporation
Los Angeles, California
Attached letter from C.C. Cowan
Director
The National Values Center,
Incorporated
Denton, Texas
Attached document entitled,
"Stepping Stones" - a section of the
Values Center, Inc.
Smiland and Khachigian
Los Angeles, California
W.M. Smiland
Smiland and Khachigian
Los Angeles, California
C.G. Foster
Smiland and Khachigian
Los Angeles, California
R.E. Mitchell
Chairman of the Board
Dunn-Edwards Corporation
Los Angeles, California
H. Berman
Wellborn Paints
D. Collier
Courtauld Coatings
R. Wendoll
for Ned Kisner
Triangle Coatings
J. Sell
National Paint and Coatings
Association
S.J.H. Manekshaw
Director
Environmental, Safety and Health
Affairs
Pennzoil Company
Houston, Texas
1-7
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TABLE 1-1. LIST OF COMMENTERS ON THE SECTION 183 (e) REPORT TO
CONGRESS AND LIST AND SCHEDULE OF CONSUMER PRODUCT
CATEGORIES TO BE REGULATED (CONTINUED)
Docket number6
Attachments Commenter and affiliation
CCP-IV-D-01 R.E. Mitchell
(CP-IV-D-35k) Chairman of the Board
Dunn-Edwards Corporation
Los Angeles, California
CP-IV-D-01 J. Janeczek Jr., P.E.
Capital Cities/ABC, Inc.
New York, New York
CP-IV-D-02 R.D. Elliott
Executive Director
Southwest Air Pollution
Control Authority
Vancouver, Washington
CP-IV-D-04 G.F. Tappan
Section Chief
Regulatory Affairs
Block Drug Company, Inc.
Jersey City, New Jersey
CP-IV-D-06 A.W. Effinger, Esq.
General Counsel
American Pet Products
Manufacturers Association, Inc.
Greenwich, Connecticut
CP-IV-D-07 W.M. Smiland
Smiland and Khachigian
Los Angeles, California
CP-IV-D-07a W.M. Smiland
Smiland and Khachigian
Los Angeles, California
CP-IV-D-10 W.K. Lim
President
Aerosol Services Company, Inc.
City of Industry, California
CP-IV-D-11 B. Mathur
Chief
Bureau of Air
State of Illinois
Environmental Protection Agency
Springfield, Illinois
1-8
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TABLE 1-1. LIST OF COMMENTERS ON THE SECTION 183 (e) REPORT TO
CONGRESS AND LIST AND SCHEDULE OF CONSUMER PRODUCT
CATEGORIES TO BE REGULATED (CONTINUED)
Docket number3
Attachments Commenter and affiliation
CP-IV-D-13 B.A. Kwetz
Director
Division of Air Quality Control
Commonwealth of Massachusetts
Department of Environmental
Protection
Boston, Massachusetts
CP-IV-D-33 R. Engel, President
Chemical Specialties
Manufacturers Association
Washington, DC
CP-IV-D-34 L.A. Spurlock, Ph.D, CAE
Chemical Manufacturers Association
Arlington, Virginia
CP-IV-D-35 Dunn-Edwards Corporation
Los Angeles, California
CP-IV-D-35k R.E. Mitchell
(CCP-IV-D-01) Chairman of the Board
Dunn-Edwards Corporation
Los Angeles, California
CP-IV-D-35m Attached document entitled, "Economic
Analysis" by Dunn-Edwards
Corp.
CP-IV-D-40 F.N. Romano
Chairman of the Board
Chief Executive Officer
Key West Fragrance &
Cosmetic Factory, Inc.
Key West, Florida
CP-IV-D-42 I.S. Combe
Chairman
Combe Incorporated
White Plains, New York
CP-IV-D-44 M.A. Dirzis
Director
Government Affairs
Avon Products, Inc.
New York, New York
CP-IV-D-45 E.G. Sullivan
State of Maine
Department of Environmental
Protection
Augusta, Maine
1-9
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TABLE 1-1. LIST OF COMMENTERS ON THE SECTION 183 (e) REPORT TO
CONGRESS AND LIST AND SCHEDULE OF CONSUMER PRODUCT
CATEGORIES TO BE REGULATED (CONTINUED)
Docket number3
Attachments Commenter and affiliation
CP-IV-D-46 T.J. Donegan, Jr.
Vice President-Legal and General
Counsel
The Cosmetic, Toiletry, and
Fragrance Association
Washington, DC
CP-IV-D-48 R.N. Hiatt
Chairman
Maybe1line, Inc.
Memphis, Tennessee
CP-IV-D-49 G.T. Blair ,
Haarmann & Reimer Corporation
Springfield, New Jersey
CP-IV-D-50 S.I. Sadove
President
Clairol
Stamford, Connecticut
CP-IV-D-51 E. Zeffren, Ph.D.
President
Helene Curtis, Inc.
Chicago, Illinois
CP-IV-D-52 D.L. Stein
Senior Specialist
3M Corporate Product Responsibility
St. Paul, Minnesota
CP-IV-D-53 R.N. Sturm
Director
Professional & Regulatory Services
The Procter & Gamble Company
Cincinnati, Ohio
CP-IV-D-54 J.B. Hallagan
Law Offices
Daniel R. Thompson, P.C.
Washington, DC
CP-IV-D-56 S.P. Risotto
Director of Regulatory Affairs
Halogenated Solvents Industry
Alliance, Inc.
Washington, DC
CP-IV-F-la R.E. Mitchell
Chairman of the Board
Dunn-Edwards Corporation
Los Angeles, California
1-10
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TABLE 1-1. LIST OF COMMENTERS ON THE SECTION 183(e) REPORT TO
CONGRESS AND LIST AND SCHEDULE OF CONSUMER PRODUCT
CATEGORIES TO BE REGULATED (CONTINUED)
Docket number8
Attachments Commenter and affiliation
CP-IV-F-lb M. Thompson
Chemical Specialties Manufacturers
Association
CP-IV-F-ld T. Wernick
Gillette
CP-IV-F-lg B. Mercer
Prestone
CP-IV-F-lj B. Sabo
Apollo Industries
CP-IV-F-lk G. Brown
National Aerosol Association
AR-IV-F-1 H. Berman
Vice President
Jefferson Environment, Health, and
Safety Group
Denver, Colorado
a AIM = Docket A-92-18
CCP = Docket A-94-65
CP = Docket A-95-40
AR = Docket A-95-18
1-11
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TABLE 1-2 . LIST OF UNSUMMARIZED ITEMS RECEIVED BEFORE
PUBLICATION OF THE PROPOSED ARCHITECTURAL COATINGS RULEa
Docket number^
Commenter and affiliation
AIM-II-D-146
AIM-II-D-149
AIM-II-D-152
AIM-II-D-155
AIM-II-D-160 and
AIM-II-D-169
AIM-II-D-161
AIM-II-D-169 and
AIM-II-D-160
AIM-II-D-177
AIM-II-D-184
AIM-II-D-186 and
AIM-II-D-203
R.E. Mitchell
Chairman of the Board
Dunn-Edwards Corporation
Los Angeles, California
R.E. Mitchell
Chairman of the Board
Dunn-Edwards Corporation
Los Angeles, California
R.E. Mitchell
Chairman of the Board
Dunn-Edwards Corporation
Los Angeles, California
R.E. Mitchell
Chairman of the Board
Dunn-Edwards Corporation
Los Angeles, California
R.E. Mitchell
Chairman of the Board
Dunn-Edwards Corporation
Los Angeles, California
E.D. Edwards
Owner
Dunn-Edwards Corporation
Los Angeles, California
R.E. Mitchell
Chairman of the Board
Dunn-Edwards Corporation
Los Angeles, California
R.E. Mitchell
Chairman of the Board
Dunn-Edwards Corporation
Los Angeles, California
R.E. Mitchell
Chairman of the Board
Dunn-Edwards Corporation
Los Angeles, California
Dunn-Edwards Corporation
Los Angeles, California
1-12
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TABLE 1-2. LIST OF UNSUMMARIZED ITEMS RECEIVED BEFORE
PUBLICATION OF THE PROPOSED ARCHITECTURAL COATINGS
RULEa(CONTINUED)
Docket number"
Commenter and affiliation
AIM-II-D-231
AIM-II-D-235
AIM-II-D-255
AIM-II-D-256
AIM-II-D-258
AIM-II-D-291
AIM-II-D-20
R.E. Mitchell
Chairman of the Board
Dunn-Edwards Corporation
Los Angeles, California
R.E. Mitchell
Chairman of the Board
Dunn-Edwards Corporation
Los Angeles, California
R.E. Mitchell
Chairman of the Board
Dunn-Edwards Corporation
Los Angeles, California
R.E. Mitchell
Chairman of the Board
Dunn-Edwards Corporation
Los Angeles, California
R.E. Mitchell
Chairman of the Board
Dunn-Edwards Corporation
Los Angeles, California
R.E. Mitchell
Chairman of the Board
Dunn-Edwards Corporation
Los Angeles, California
W.M. Smiland
Smiland Paint Company
AIM-II-D-203 and
AIM-II-D-186
AIM-II-D-332
W.M. Smiland
Smiland and Khachigian
Los Angeles, California
C.G. Foster
Smiland and Khachigian
Los Angeles, California
aThese items were reviewed for section 183(e) issues. These
letters contained no new issues so they were not summarized and
will not be referenced in the comment response document.
bAIM = Docket A-92-18
1-13
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2.0 SUMMARY OF PUBLIC COMMENTS
A total of 85 letters and 12 public hearing comments were
received on the section 183(e) study and report to Congress.
For purpose of orderly presentation, the comments have been
categorized under the following topics:
Consumer and Commercial Products Study
Reactivity
EPA's Regulatory Strategy
Legal Issues
2.1 CONSUMER AND COMMERCIAL PRODUCTS STUDY
Section 183(e) of the Act mandates a new regulatory program
for controlling VOC emissions. Through this provision, Congress
required EPA to conduct a study of emissions of VOC into the
ambient air from consumer and commercial products and to list for
regulation, based on the study, certain categories of products
that have the potential to contribute to ozone nonattainment.
The term "consumer and commercial products" is defined in
section 183(e) of the Act to mean:
...any substance, product (including paints, coatings, and
solvents), or article (including any containers or
packaging) held by any person, the use, consumption,
storage, disposal, destruction, or decomposition of which
may result in the release of volatile organic compounds.
The statutory definition of consumer and commercial products thus
includes a much broader array of products than those usually
considered to be consumer products (e.g., personal care products,
household cleaning products, or household pesticides) because it
encompasses all VOC-emitting products used in the home, by
businesses, by institutions, and in a wide range of industrial
manufacturing operations.
2-1
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The stated objectives of the consumer and commercial
products study mandated in section 183(e) of the Act were: (1) to
determine the potential of VOC emissions from consumer and
commercial products to contribute to ozone levels which violate
the ozone NAAQS; and (2) to establish criteria for regulating
consumer and commercial products. In establishing criteria for
regulating products, the Administrator was directed to consider
the following five factors: (1) the uses, benefits, and
commercial demand of products; (2) the health or safety functions
served by such products; (3) whether products emit highly
reactive VOC into the ambient air; (4) the relative
cost-effectiveness of controls for products; and (5) the
availability of alternative products which are of comparable
costs, considering health, safety, and environmental impacts.
Upon completion of the study, section 183(e) required EPA to
submit a report to Congress documenting the results of the study.
The statutory provision further required EPA to list those
categories of products that it determined, based on the study,
account for at least 80 percent of the total VOC emissions, on a
reactivity-adjusted basis, from consumer and commercial products
in areas that violate the ozone NAAQS. In addition,
section 183(e) required EPA to divide the list of products into
four groups establishing priority for regulation. Every 2 years
following publication of the list, EPA is required to regulate
one group of categories until all four groups are regulated.
Regulatory criteria and ranking of product categories.
As directed in section 183(e)(2)(B) of the Act, EPA
developed the following eight criteria for use in establishing
the list of consumer and commercial product categories to be
regulated:
(1) Utility,
(2) commercial demand,
(3) health and safety functions,
(4) emissions of highly reactive VOC,
(5) availability of alternatives,
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(6) cost-effectiveness of controls,
(7) magnitude of annual VOC emissions, and
(8) regulatory efficiency and program considerations.
The first factor stipulated by section 183(e) is reflected
in two criteria developed by EPA. Criterion 1 (utility)
considers uses and benefits and Criterion 2 addresses commercial
demand. The remaining four factors stipulated in section 183(e)
are addressed individually by Criteria 3 through 6.
Criteria 7 and 8 (magnitude of emissions and regulatory
efficiency) reflect additional considerations not specifically
prescribed in the Act. The EPA has exercised its discretion to
include these criteria, because EPA concluded that they are
I
important in prioritizing product categories for regulation in a
manner that best effectuates Congress's intent under Section
183(e). The EPA's interpretation of each of the five factors and
the rationale and intent of each of the eight criteria are
discussed in detail in the Report.
The EPA developed Criteria 1 through 7 to allow each product
category to be ranked numerically. The numerical ranking process
involved objective and subjective considerations. Criteria 2, 4,
6, and 7 are objective in nature and could be scored
quantitatively based on annual sales, VOC emissions, and cost of
control. Application of Criteria 1, 3, and 5 included some
subjective considerations. Scoring of these criteria could be
affected by the scorer's background, knowledge of the category,
or other considerations. In order to ensure consistency and
fairness, EPA convened the National Air Pollution Control
Techniques Advisory Committee (NAPCTAC) to assist the Agency in
application of these criteria. Because of the balance afforded
by the diversity of the NAPCTAC membership, EPA concluded that it
was an appropriate and convenient choice for the panel. The
panel met in July 1994 in Durham, North Carolina, to assign
preliminary scores for Criteria 1 through 7 to each of the
product categories. Results of the preliminary scoring exercise
are available in the docket (A-94-65; item I-B-2). The EPA used
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NAPCTAC to provide expert advice on the question of product
ranking, but excercised its own independent judgment to assign
the final ranking of products for regulation.
Once the initial ranking of products based on exercise of
Criteria 1 through 7 was completed, EPA applied Criterion 8,
regulatory efficiency and program considerations, to prioritize
the products in the schedule for regulation, and thereby identify
which product categories comprised at least 80 percent of VOC
emissions in nonattainment areas. As required by section 183(e)
of the Act, EPA grouped the listed categories of consumer and
commercial products into four groups for regulation in 2-year
intervals. Although the statute does not require that the
80 percent be divided into four equal groups, EPA placed product
categories into the four groups as equally as possible with the
goal of achieving VOC emission reductions as early as possible,
given available EPA resources. Thus, nearly two-thirds of the
cumulative emissions from consumer and commercial products result
from products in the first two groups of categories.
The EPA submitted the Report, including the required
criteria for regulation, on March 23, 1995. A summary of the
6-volume report (EPA-453/R-94-066-a through f) was published at
60 FR 15264. In the same notice, the list of products and the
schedule for regulation was published. The Act requires that the
Group I rules be promulgated within 2 years of the publication
date of the Report.
Regulations under section 183(e) of the Act. Regulations
under section 183(e) of the Act must reflect EPA's consideration
of best available controls (BAC) for the category of product. As
defined in section 183(e)(l) of the Act, BAC is
...the degree of emission reduction that the Administrator
determines, on the basis of technological and economic
feasibility, health, environmental, and energy impacts, is
achievable through the application of the most effective
equipment, measures, processes, methods, systems, or
techniques, including chemical reformulation, product or
feedstock substitution, repackaging, and directions for use,
consumption, storage, or disposal.
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For any regulations under section 183(e) of the Act, the
regulated entities are defined as follows:
(i) manufacturers, processors, wholesale distributors, or
importers of consumer or commercial products for sale or
distribution in interstate commerce in the United States; or
(ii) manufacturers, processors, wholesale distributors, or
importers that supply the entities listed under clause
(i)with such products for sale or distribution in interstate
commerce in the United States.
Section 183(e) grants the Agency discretion to issue control
technique guidelines (CTGs) in lieu of regulations if the Agency
determines that a CTG will be substantially as effective as a
regulation in reducing emissions of VOC in ozone nonattainment
areas. A CTG is a guidance document issued by the EPA. Whenever
a CTG is published, section 182(b)(2) of the Act requires that
States adopt (as part of their State implementation plans)
reasonably available control technology (RACT) rules for
stationary sources of VOC that are covered by a CTG. A CTG
includes a presumptive norm for RACT that EPA believes satisfies
the definition of RACT. By submitting a RACT rule that is
consistent with a CTG, a State does not need to provide
additional support to demonstrate that the rule meets the Act's
RACT requirement.
Since publication of the list and schedule for regulation,
the EPA has proposed regulations for three product categories
pursuant to section 183(e): architectural coatings
(61 FR 32729), automobile refinish coatings (61 FR 19005), and
consumer products (61 FR 4531). In addition, EPA has proposed
determinations that CTGs are substantially as effective as
regulations for three product categories: wood furniture
manufacturing coatings, aerospace coatings, and shipbuilding and
ship repair coatings (62 FR 44672).
2.1.1 Ranking Process
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2.1.1.1 Adequacy of the Section 183(e) Study and Report to
Congress.
Qpmment: Six commenters in nine documents (AIM-IV-D-212,
CP-IV-D-07a, CP-IV-D-35, CP-IV-F-la, AIM-IV-D-214b/CP-IV-D-07b,
AIM-IV-D-178, AIM-IV-F-1[1], AIM-IV-D-170, AIM-IV-F-ld) claimed
that EPA failed to perform the study necessary to establish
criteria for regulating categories of consumer and commercial
products as mandated by section 183 (e) (2) (A) (ii) of the Act. One
commenter (CP-IV-F-la) claimed that instead of developing the
in-depth study requested by Congress, EPA conducted an inventory
of mass emissions from particular products. The commenter
contended that a "study" involves investigation, analysis, and
I
comparison, whereas an inventory involves counting and
identifying items.
One of the commenters (CP-IV-D-07a) stated that a complying
study is an essential precondition to preparing the Consumer and
Commercial Products list and schedule. Two commenters
(CP-IV-D-07a, CP-IV-D-35) concluded that until EPA completes the
required study, EPA is without authority to propose any
regulations under section 183(e) of the Act.
One commenter (AIM-IV-D-214b/CP-IV-D-07b) contended that,
under section 304, a district court could enter a mandatory
injunction ordering EPA to perform its study and listing duties,
and also a prohibitory injunction ordering EPA not to propose any
rule until it performed those duties. The commenter cited
various court decisions regarding the performance of mandatory
and nondiscretionary duties in various contexts. The commenter
also listed remedies available under section 304 of the Act for
failure to perform a mandatory duty. In addition, the commenter
cited decisions in which courts prohibited actions until the
mandatory duties were performed.
One commenter in two letters (AIM-IV-D-212,
AIM-IV-D-212p4/CP-IV-D-35g) contended that EPA failed to
implement the clear mandate of section 183 (e) of the Act. The
commenter examined various parts of the business, the science,
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and the psychology that affected human health and contended that
the Report had not analyzed the health effects of regulation.
The commenter insisted that EPA adopt a broader sense of the
"health...function served by such...products" to include an
understanding that certain regulations would result in the loss
of jobs and that poverty, hunger, and stress would occur.
The commenter cited the articles "Risky Business" (Marshall
[AIM-IV-D-212p4b/CPIV-D-35g4]), "Effects of Diminished Economic
Opportunities on Social Stress: Heart Attacks, Strokes and Crime"
(Merva and Fowles [AIM-IV-D-212p4a/CP-IV-D-35g3]), and "Human
Mortality, Air Pollution and Unemployment in Southern California"
(Haring and Vatarues [AIM-IV-D-212p4c]). The commenter used
these articles to argue that unnecessary regulations create costs
to business, thereby creating unemployment which has adverse
health effects. The commenter also noted that one study also
showed a strong correlation between adverse health effects and
unemployment and also showed a strong correlation between adverse
health effects and ozone concentrations. In addition to these
articles, the commenter also attached other documents which they
claimed support their contention that the Report ignores the
effects of VOC regulations on the sociological/psychological
health of the general population (loss of jobs due to VOC
regulations). The commenter recommended that section 4.3.1 of
the Report include a definition of "health" that considered both
the physical and mental well-being of a person. According to the
commenter, section 4.3.2 of the Report focuses on regulation, not
health or safety analyses. The commenter requested that the
Report be redone.
One commenter (AIM-IV-D-214c) maintained that EPA's failure
to list statutory priorities for regulation based on the criteria
established under sections 183(e)(2)(A)(ii) and (B) of the Act
had stark consequences for disfavored industries or industry
segments, such as the one to which local and regional
manufacturers belong, which have been targeted for immediate
regulation. The commenter contended that Congress intended that
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EPA would list certain categories for regulation in "the most
effective, least disruptive way."
One commenter (CCP-IV-D-03) supported EPA's findings stated
in the Report which promote several options for reducing VOC
emissions from consumer and commercial products. The commenter
asserted that allowing flexibility in the methods used to reduce
emissions will promote technological innovation and minimize
control and implementation costs. The commenter agreed that
emission reductions must be balanced with product efficacy,
consumer acceptance, and economic impacts, and that reducing
emissions from different categories of products may require
different regulatory strategies. The commenter also urged EPA to
consider safety and health effects issues when formulating
regulations for consumer and commercial products. The commenter
supported limiting the use of certain substitutes in products
sold to the general public because of their toxicity and
encouraged EPA to consider the toxicological data in determining
safe substitutes in consumer and commercial products.
Three additional commenters (CP-IV-D-46, CP-IV-F-lb,
CP-IV-F-ld) stated that EPA had fulfilled all necessary
requirements of section 183(e) of the Act. One commenter
(CP-IV-D-46) stated that based on the record established by EPA
in the preamble to the consumer products rule and the extensive
survey of consumer products in the Report, EPA acted entirely in
accordance with the requirements of section 183(e) of the Act and
within its authority as delegated by Congress through the
1990 Amendments to the Act. The commenter stated that EPA met
the requirements to perform a study and write a report of the
emissions of volatile organic compounds into the ambient air from
consumer and commercial products. This report was to determine
the potential of VOC emitted from consumer and commercial
products to contribute to ozone levels which violate the ozone
NAAQS and establish criteria for regulation under
section 183(e)(2)(A) of the Act. The commenter asserted that EPA
did this by undertaking the largest survey at the time of all
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consumer product manufacturers that sell products in the
United States, compiling the data, and reporting the results in
the Report submitted in March 1995. The commenter stated that
EPA met the requirement under section 183(e) (2) (ii) of the Act to
establish criteria for regulating consumer and commercial
products based on factors outlined in section 183(e)(2)(B) of the
Act by convening the NAPCTAC to apply the suggested criteria for
regulation. The commenter argued that 24 products chosen for
inclusion in the proposed consumer products regulation are
supported by the results of the NAPCTAC evaluation. The
commenter stated that EPA's Report was good because it included:
(1) a detailed section on why reactivity can be a relevant
t
consideration (2) how products were scored for reactivity and
(3) the NAPCTAC ranking sheets for each personal care product
which included a reactivity ranking as required under the
statute.
Response: The EPA believes that it has satisfied the
requirements of section 183(e) of the Act as they relate to the
Consumer and Commercial Products Study, the report to Congress,
and the listing of consumer and commercial products for
regulation. Therefore, EPA has authority to propose and
promulgate regulations under section 183(e) of the Act.
Contrary to the commenters' assertions, EPA conducted a
comprehensive 4-year study of consumer and commercial products.
The study involved identification of all consumer and commercial
products; development of VOC emission inventory; consideration of
photochemical reactivity of these VOC emissions; study of the
fate of products in wastewater and landfills; analysis of systems
of regulation; development of criteria for ranking products for
regulation; and listing of product categories responsible for 80%
of the VOC emissions and development of schedule for regulation.
The objectives of the study were to: (1) determine the potential
of emissions from consumer and commercial products to contribute
to the ozone nonattainment problem; and (2) establish criteria
for regulating consumer and commercial products as stipulated by
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the statute. One of the things EPA considered is that consumer
and commercial products account for 28 percent of the
anthropogenic VOC emissions and these emissions are largely
uncontrolled nationwide. In light of this, EPA examined in the
study the potential for emissions from these products to
contribute to ozone nonattainment.
A major element of the study was a comprehensive accounting
of VOC emissions from the full range of consumer and commercial
products subject to section 183 (e) of the Act. To develop this
comprehensive emissions inventory, EPA used information from
existing regulatory efforts, conducted literature searches to
obtain emission information for certain products and conducted a
*
survey of consumer product manufacturers. The survey of consumer
product manufacturers obtained information on the total VOC
content (and the individual VOC ingredients) of products.
Another key element of the study was an analysis of
photochemical reactivity as it relates to VOC emissions from
consumer and commercial products. This effort investigated the
validity, uncertainties, and overall utility of available
reactivity data and evaluated methodologies by which relative
reactivity could be employed in implementation of section 183(e)
of the Act.
In another part of the study, EPA investigated the fate of
consumer and commercial product-related VOC in wastewater and in
landfills. The purpose of this effort was to determine whether
adjustments to VOC inventory data should be made to account: for
the portion of the VOC content of consumer products that enter
landfills or wastewater and, due to physical or chemical
mechanisms, do not enter the ambient air.
Also as part of the comprehensive study, EPA analyzed
various systems of regulation, including product registration and
labeling, self-monitoring and reporting, prohibitions,
limitations, and economic incentives, that could be used to
achieve reductions in VOC emissions and resultant ozone
formation. Various measures such as reformulation, product
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substitution, repackaging, and consumer education were
investigated as possible methods of achieving VOC reductions. In
addition, the study included an in-depth analysis of aerosol
products and packaging systems.
One of the major objectives of the study was to establish
criteria for regulating consumer and commercial products under
section 183(e) of the Act. Pursuant to the statute, EPA
developed eight criteria based closely upon five factors that
Congress instructed EPA to take into consideration in
section 183(e)(2)(B) of the Act. These criteria and the process
of applying them are discussed in more detail in section 2.1.1.6.
The five statutory factors for consideration by EPA in
i
establishing criteria are:
1. Uses, benefits, and commercial demand;
2. health and safety functions;
3. products which emit highly reactive VOC;
4. cost-effectiveness of control; and
5. availability of alternatives.
Utilizing the discretion allocated to the Agency in
section 183(e) of the Act, EPA established eight criteria based
upon its consideration of the statutory factors:
1. Product utility;
2. commercial demand;
3. health and safety functions;
4. emissions of highly reactive VOC;
5. availability of alternatives;
6. cost-effectiveness of controls;
7. magnitude of annual VOC emissions; and
8. regulatory efficiency and program considerations.
In March 1995, following completion of the 4-year
comprehensive study, EPA published and submitted to Congress a
report entitled "Study of Volatile Organic Compound Emissions
from Consumer and Commercial Products - Report to Congress"
(EPA-453/R-94-066-A) and published five supporting documents as
follows:
1. "Comprehensive Emissions Inventory"
(EPA-453/R-94-066-B);
2. "Fate of Consumer Product VOC in Landfills"
(EPA-453/R-94-066-C);
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3. "Fate of Consumer Product VOC in Wastewater"
(EPA-453/R-94-066-D);
4. "Economic Incentives to Reduce VOC Emissions from
Consumer and Commercial Products" (EPA-453/R-94-066-E) ;
and
5. "Aerosol Products and Packaging Systems"
(EPA-453/R-94-066-F).
On March 23, 1995, EPA published a notice in the Federal
Register [60 FR 15264] entitled "Consumer and Commercial
Products: Schedule for Regulation." This notice contained a list
of consumer and commercial products identified for possible
regulation and a schedule for promulgation of such regulations.
In accordance with section 183(e)(3)(A) of the Act, EPA listed
those categories of consumer and commercial products, based on
the study, which account for at least 80 percent of the VOC
emissions, on a reactivity-adjusted basis, from consumer and
commercial products in ozone nonattainment areas. The EPA
divided the list into four groups, by priority, based on
application of the eight criteria established in the study. In
accordance with the statute, EPA scheduled a group to be
regulated every 2 years beginning in March 1997.
Having conducted the comprehensive 4-year study, established
criteria for regulating products, submitted the required report
to Congress, and published the consumer and commercial product
category list and schedule for regulation, EPA believes it has
satisfied the preconditions to regulation under section 183(e) of
the Act. With regard to the commenter's claims that EPA has
failed to complete the study and listing, EPA notes that a
U.S. District Court has recently rejected the commenter's claim
that the Agency failed to comply with a mandatory duty for lack
of jurisdiction under section 304 of the Act and the U.S. Court
of Appeals for the Ninth Circuit has recently upheld that
decision. See Dunn-Edwards v. EPA. 1997 U.S. App.LEXIS 22891
(8/5/97) . In addition, EPA notes that a number of courts have
held that the contents of reports to Congress, and the adequacy
of those contents, are not subject to judicial review. See,
e.g., NRDC v. Hodel. 865 F.2d288 (B.C. Cir. 1988).
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Concerning the allegation that EPA failed to analyze the
health effects of regulations as required by section 183(e), EPA
believes that the commenter misconstrued the
section 183(e)(2)(B)(ii) directive to consider health and safety
functions. The EPA considers the reference to health and safety
function in section 183 (e)(2)(B)(ii) to provide direction to the
Agency to take into consideration the health benefits of
products, such as asthmatic inhalers, when listing consumer and
commercial products for regulation. This provision does not
instruct the EPA to look at secondary health effects such as
those suggested by the commenter. Nevertheless, EPA does in fact
take into account factors such as economic impacts and potential
for closures and unemployment in consideration of the economic
impact associated with a rulemaking.
In establishing the ranking criteria, EPA did consider the
health and safety function in the application of Criterion 3.
Criterion 3 was designed to lower the priority for regulation of
products that contribute to the protection of health or safety.
A product with no health or safety function was assigned a
maximum score, under this criterion (higher priority for
regulation). A product marketed primarily for its health or
safety functions received a minimum score (lower priority for
regulation). A product whose health or safety functions are
secondary was assigned a mid-range score. By this process, EPA
recognized the health and safety benefits derived from the use of
consumer and commercial products and sought to ensure that these
benefits were not unduly or unnecessarily compromised.
With respect to the articles and other documents submitted
by the commenter, EPA disagrees that these items raise issues for
consideration at the time of the Study. The EPA examines the
economic impacts of regulations at the time of rulemaking because
it is only at that point that it is possible to evaluate such
impacts. In this case, the commenter presupposed that there are
significant adverse employment impacts of any rule and indicated
that there are secondary impacts associated with unemployment
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that are not accounted for by EPA's analysis. The EPA does not
agree that it is possible to anticipate the economic impacts and
benefits of any rules issued under section 183 (e) of the Act in
advance of development of the rules. The EPA has considered the
economic impact of the proposed standards for the automobile
refinish coatings rule, the consumer products rule, and the
architectural coatings rule in the rulemakings on these standards
rather than in the study.
Finally, EPA agrees that allowing flexibility in the methods
used to reduce emissions will promote technological innovation
and minimize control and implementation costs. The EPA also
agrees that its approach balances emission reductions with
product efficacy, consumer acceptance, and economic impacts and
recognizes that reducing emissions from different categories of
products may require different regulatory strategies. The EPA
also agrees that health and safety effects should be considered
when issuing regulations for consumer and commercial products.
In consideration of substitutes for products, EPA would of course
consider whether or not the reformulated product presented other
concerns, such as emissions of hazardous air pollutants (HAPs) or
other health hazards. The EPA's consideration of health effects
would be in the decision on whether or not there are acceptable
substitutes.
Comment: One commenter claimed that EPA did not conduct the
proper required peer review of the section 183(e) study and the
report to Congress because the Agency wrongly concluded that peer
review was unnecessary.
Response: The EPA believes that the degree of peer review
conducted for the section 183(e) study and report to Congress was
within the discretion of EPA. The EPA's January 1993 Peer Review
Policy states that: "(A)gency managers within Headquarters,
Regions, laboratories and field components determine and are
accountable for the decision whether to employ peer review in
particular instances and, if so, its character, scope, and
timing. These decisions are made in conformance with program
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goals and priorities, resource constraints, and statutory or
court-ordered deadlines."
Although EPA conducted no formal peer review process for the
report to Congress, there was extensive peer involvement at
various stages of the section 183(e) study. For example, the
basis for chapter 3, Photochemical Reactivity, was a scientific
paper entitled, "Scientific Basis of the VOC Reactivity Issues
Raised by Section 183 (e) of The Clean Air Act Amendments of
1990."1 (A-94-65, item IV-J-8) This paper was reviewed by
members of the National Academy of Sciences prior to publication
of the report to Congress. In addition, in October of 1996, this
approach was published as a technical paper in the Journal of Air
and Waste Management Association. As a published paper, it was
subjected to the same peer review policy as all other papers
submitted to this journal. The fact that, after meeting the peer
review requirements of the journal, it was published without
changes confirms its technical merit. In addition, in
September 1992 as part of the architectural coatings regulatory
negotiation process, EPA convened a meeting of photochemical
reactivity and modeling experts to obtain their input on the
state of the science of reactivity and the suitability of
reactivity to regulatory programs.
Other elements of the study and Report were developed with a
high degree of peer involvement by representatives of various
sectors of the consumer and commercial products industry.
Elements of the study that involved input from industry or were
reviewed by industry prior to publication of the report to
Congress included: draft and revised documents entitled,
"Criteria for Regulation of Consumer and Commercial Products
under Section 183(e) of the Clean Air Act"; the consumer products
survey questionnaire and results; and the report on aerosol
products and packaging systems (A-94-65, item I-A-6).2/3
Industry groups and regulatory agencies who provided input on
various topics included the Chemical Specialties Manufacturers
Association; the Cosmetic, Toiletry, and Fragrance Association;
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the Soap and Detergent Association; the National Paint and
Coatings Association; the Automotive Chemical Manufacturers
Council; the Adhesive and Sealant Council; California Air
Resources Board; New Jersey Department of Environmental
Protection; New York Department of Environmental Conservation;
and Wisconsin Department of Natural Resources.
With regard to the listing and scheduling of categories for
regulation, NAPCTAC, as well as members of the public, were
consulted and were provided an opportunity to participate in the
criteria ranking process in an open public meeting.
The EPA believes that peer involvement in the most
controversial and technical element of the study (reactivity),
the high degree of industry and State regulatory agency
involvement, and participation of the public and the NAPCTAC in
the ranking process all work together to satisfy the goal of
involving experts in the field, obtaining input from outside of
the Agency and ensuring policy decisions rest on sound, credible
science and data.
2.1.1.2 Addition of Two Criteria (Emission Magnitude, and
Regulatory Efficiency and Program Considerations).
Comment: Two commenters in seven documents (AIM-IV-D-55,
AIM-IV-D-214b/CP-IV-D-07b, AIM-IV-D-214c, CP-IV-D-35, CP-IV-F-la,
AIM-IV-D-212p6/CP-IV-D-35t, AR-IV-F-1) stated that the
U.S. Environmental Protection Agency (EPA or Agency) did not have
the authority to add the "emission magnitude" and the "regulatory
efficiency and program considerations" criteria to the five
factors listed in section 183 (e) (2) (B) of the Clean Air Act
(Act) . The commenters claim that any Agency action relying on
these factors is illegal and invalid.
One commenter in two letters (AIM-IV-D-214c,
AIM-IV-D-214b/CP-IV-D-07b) cited the following three court cases
to support its position: (1) Motor Vehicle Manufacturers Assn.
v. State Farm Mutual. 463 U.S. 29, 43 (1983); (2) Hazardous Waste
Treatment Council v. U.S.E.P.A.. 861 F.2d 270, 274-277
(D.C. Cir. 1988) ; and (3) Leatherman v. Tarrant County Narcotics
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Unit. 113 S. Ct. 1160, 1163 (1993). The commenter stated that
these cases demonstrate that: (1) Agency action was invalid where
the Agency relied on factors which Congress did not intend it to
consider; (2) decisions based on a criterion not authorized by
the Act are not in accordance with law; and (3) where Congress
enumerates specific factors for consideration, it is beyond an
agency's authorized discretion to consider additional factors not
specifically enumerated.
Another commenter in two letters (AIM-IV-D-212, CP-IV-D-35)
supported this position by stating that the Act's use of the term
"shall" meant that EPA had no discretion to alter, ignore, or add
to these factors.
According to one commenter (AIM-IV-D-212,
AIM-IV-D-212p6/CP-IV-D-35t), EPA unfairly altered the ranking
process by using the magnitude of volatile organic compound (VOC)
emissions as an additional factor. The commenter alleged that
use of emissions magnitude effectively substituted a volume
factor for the relative reactivity determination of each VOC as
required by Congress.
One commenter (AIM-IV-D-214c) stated that the regulatory
efficiency and program considerations criterion severely
prejudices the ranking process against those products that have
current State and/or Federal regulations, such as architectural
coatings.
One of the commenters (CP-IV-F-la) asserted that the
efficiency factor was subjective and could be abused by EPA
because there is no standard definition of "efficiency."
Response: The EPA agrees that the Act requires EPA to
establish criteria for regulating consumer and commercial
products, taking into consideration certain listed factors. The
statute does not require, however, that EPA establish criteria
that precisely mirror the factors listed in section 183(e)(2)(B)
of the Act, nor does it require that EPA consider the list of
factors to be exclusive. Section 183(e)(2)(B) of the Act only
requires that the criteria reflect consideration of the listed
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factors. Accordingly, the statute provides EPA discretion to
identify the relevant and necessary criteria for regulation. The
EPA fulfilled its duty to establish criteria and to consider each
of the five listed factors in developing its criteria. The
statutory factors and the criteria established by EPA are
discussed in more detail in sections 2.1.1.1 and 2.1.1.6.
The EPA exercised its discretion by establishing two
criteria that did not specifically mirror the five listed
factors, but which EPA believed were important for the purposes
of establishing priorities for regulation, as instructed by
Congress, and in keeping with the objectives reflected by
Congress in the factors listed for EPA consideration in devising
criteria. Because Congress gave EPA discretion to devise
appropriate criteria, taking into consideration certain factors
enumerated in section 183 (e) (2) (B) of the Act, EPA believes that
the commenter's reference to the decisions in Motor Vehicle
Manufacturers Assn., Hazardous Waste Treatment Council, and
Leatherman are inapposite. Those decisions are distinguishable
because the courts addressed instances in which entities relied
on factors not permitted by the applicable statutes. In this
instance, EPA's establishment of criteria was explicitly directed
by statute and the scope of EPA's authority to do so was not
limited to the factors or in other ways analogous to the cases
cited by the commenter.
Criterion 7, Magnitude of Annual VOC Emissions, provided for
ranking of products based on their annual mass emissions of VOC
expressed in tons. As required by section 183 (e) of the Act,
these mass emission estimates were adjusted on the basis of
relative reactivity. The procedure for this adjustment is
explained in detail in chapter 3 of the report to Congress.
Following the adjustment for relative reactivity, products with
higher annual reactivity-adjusted emissions received higher
scores, indicating a higher priority for regulation. The
criteria and scoring process are discussed in detail in
section 2.1.1.6 of this document and in chapter 4 of the report
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to Congress. Thus, EPA considered both volume and reactivity; it
did not substitute a volume basis for reactivity adjustment. The
EPA believes that it is preferable to regulate products taking
into consideration how much VOC they emit relative to other
products. The Agency's position of focusing on larger emission
sources is reasonable because the larger sources generally
provide a greater opportunity for emission reductions.
Criterion 8, Regulatory Efficiency and Program
Considerations, was established solely to assure that EPA
continues to use resources in the most effective manner to meet
the mandate of section 183(e) of the Act. It is reasonable for
EPA to consider whether a given consumer and commercial product
category has already been the subject of State or Federal
regulatory programs. Such categories typically would have been
fairly well-characterized, alternatives of control would have
been explored, and cost and economic impacts of regulation would
have been investigated. The EPA believes it is also reasonable
to consider the existence of this information in prioritizing
product categories for regulation because EPA must regulate the
first group of products in a relatively short period of time
(i.e., 2 years after the listing of products for regulation).
Giving these well-characterized categories higher priority allows
EPA more time to evaluate potential rules for categories that may
be less well understood at this time.
The architectural coatings industry was not adversely
affected by EPA's application of Criterion 8, Regulatory '
Efficiency and Program Considerations. Comparison of the tabular
results of the product category ranking exercise (before
application of Criterion 8) and the resulting March 1995 schedule
for regulations (following application of Criterion 8) shows that
in only two cases were categories listed for regulation that fell
outside the categories accounting for at least 80 percent of the
emissions based on numerical score alone. These categories were:
(1) shipbuilding and repair coatings,- and (2) a collection of
24 household consumer products which were currently regulated by
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California and several other States. Therefore, contrary to the
commenter's suggestion, the ranking of architectural coatings in
the top 80 percent was not a result of EPA's use of Criterion 8.
The EPA intends to exercise discretion in adjusting the
product category rankings, as necessary, to achieve an effective
and practical regulatory program. As a result, EPA may amend the
list and schedule for regulations as regulatory development
proceeds or as new information becomes available. For example,
while developing regulations for aerosol spray paints (listed for
regulation in 1997) , EPA added acetone to the list of compounds
considered negligibly reactive and exempt from EPA's definition
of VOC. Acetone is a solvent used in the formulation of many
aerosol paint products. Consequently, EPA's analysis of best
available controls (BAG) conducted during the regulatory
development process for aerosol spray paints was no longer
accurate, and would have to be revisited. The EPA has determined
that additional time is required to consider the aerosol spray
paint category, and intends to exercise its discretion to amend
the schedule for regulations to move aerosol spray paints from
Group 1.
With regard to the commenter's assertion that Criterion 8 is
subjective and that there is no standard definition of
"efficiency," EPA believes that the existence of data, rules, and
studies on consumer and commercial products was a valid basis for
evaluating Criterion 8 and listing categories for regulation. As
explained in section 2.1.1.6, most of the criteria have elements
of subjectivity, and EPA believes this criterion is no less valid
than the other criteria. Therefore, EPA believes there is no
need for a definition for "efficiency."
Comment: Two commenters (AIM-IV-D-214c,
AIM-IV-D-212p6/CP-IV-D-35t) referred to EPA's acknowledgment in
the Report that products used in larger quantities may be given
"undue emphasis" to support the commenters' contention that EPA's
allegedly wrongful consideration of emission magnitude grossly
skewed subsequent regulatory decisions.
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Response: The phrase "undue emphasis" is not used with
regard to emissions magnitude. It is used at the top of page 4-4
of the Report in the discussion of Criterion 2 - Commercial
Demand. In explaining why total volume or weight sold was not
selected as an indicator of commercial demand, the Report states:
"Other indicators of commercial demand that were considered
include the total volume or weight sold, the number of units
sold, and price per unit. A measure of total volume or weight
sold may indicate the relative importance of the product to
consumers, as does the total annual sales. However, products
that are used in larger quantities may be given undue emphasis."
The phrase "undue emphasis" in this case refers to the fact that
although evaluating commercial demand based solely on total
volume or weight sold may have been used to indicate the relative
importance of the product to consumers, that approach could also
have biased the ranking toward products that take up large
volumes or are very heavy. For example, commercial demand for
underarm deodorant and hair spray may be equal but because
underarm deodorant has a different density than hair spray, using
the total volume or weight sold may not provide an equivalent
indication of commercial demand.
This issue of biasing the ranking toward products that take
up large volumes or are very heavy was discussed at the July 1994
National Air Pollution Control Techniques Advisory Committee
(NAPCTAC) meeting (see section 2.1.1.6). Based on input from
members of the public and the Committee, EPA revised Criterion 2
to mitigate any bias this might have introduced. Criterion 2 was
redefined to be annual dollar sales divided by tons VOC emitted.
This approach tends to minimize any bias for or against high
sales volume products such as coatings. The EPA believes that
this modification in response to the NAPCTAC committee comments
addressed the commenter's concerns.
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2.1.1.3 Subgroups Addressed bv the Study and Ranking
Process.
Comment: One cornmenter in two letters (AIM-IV-D-212,
CP-IV-D-35) contended that EPA misinterpreted the regulatory
approach of section 183(e)by regulating on an
industry-by-industry basis rather than on a product-by-product
basis. The commenter stated that section 183(e) of the Act
clearly made reference to regulation of products rather than of
industries and asserted that EPA was trying to rewrite the law.
Two commenters (AIM-IV-D-212, AIM-IV-D-214b/CP-IV-D-07b) stated
that EPA improperly listed all categories of architectural
coatings in the first phase of regulations in Group I as though
they were one omnibus category. The commenters argued that EPA
should have listed products on a category-by-category basis and
that the list should have separated out each type of
architectural coating for separate listing.
The commenters cited EPA's section 183(e) study and report
to Congress which identified 46 categories of architectural
coatings and asserted that the Report failed to provide any
information about the VOC emissions from any one of the
46 architectural coating categories identified in the report to
Congress.
Response: In studying and listing product categories, EPA
selected categories based upon reasonable distinctions.
Architectural coatings have been defined by States and EPA
regulators as coatings applied to stationary structures in the
"field." Since architectural coatings are used for similar
purposes, i.e., to coat stationary substrates outside of a
manufacturing or shop application, EPA placed them in one group
for purposes of determining regulatory priority. The EPA
recognizes there is a continuum of possibilities for grouping
architectural coating products into product categories. However,
creation of architectural coating categories is intertwined with
the specifics of the regulatory option chosen. For example, one
approach pursued by EPA during regulatory development would have
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eliminated the need for category distinctions since the
requirements would have focused on a company average VOC content
for all "field applied" coatings manufactured by each company.
Conversely, more categories may be created as lower VOC content
levels are contemplated for a given category. During regulatory
development, decisions to subdivide a given category into more
specific subcategories is often a direct consequence of the VOC
content levels under consideration. Separating out a specific
"niche" product from a broader classification creates more
opportunities for emission reductions and avoids application of
emission limits that could not be achieved or would create an
unreasonable cost impact on the niche market. For example, in
the process of developing the proposed architectural coating
rule, EPA established over 50 categories with varying VOC content
requirements. This is significantly more categories than have
appeared in previous State rules affecting architectural coatings
and could not have been predicted prior to completion of EPA's
regulatory development efforts. Therefore, performance
requirements and other specific characteristics of individual
coating categories were taken into account during regulatory
development, even though EPA chose to consider all of these types
of products together for purposes of listing and prioritizing the
products for regulation.
The EPA disagrees with the commenter's differentiation
between "product" and "industry" with regard to listing consumer
and commercial products for regulation. When a product (or
product category) is regulated under section 183(e) of the Act,
the regulated entity is the manufacturer, importer, processor, or
wholesale distributor of the product. Consequently, the listing
of a product or product category for regulation ultimately
affects the industry associated with that product or product
category.
With'regard to the commenter's assertion that EPA improperly
listed all categories of architectural coatings in Group I as one
"omnibus" category, EPA was within the discretion accorded to it
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by section 183 (e) (3) (A) of the Act to list for regulation "those
categories of consumer or commercial products that the
Administrator determines, based on the study, account for at
least 80 percent of the VOC emissions" in areas that violate the
ozone national ambient air quality standards (NAAQS). The EPA
believes that section 183(e) explicitly accords the Agency broad
discretion to determine the best form of controls to achieve the
necessary VOC reductions and that it is reasonable to regulate
all similar products together as a single category of product for
purposes of regulation.
The commenter remarked that EPA presented 46 categories of
architectural products in the report to Congress, but failed to
present emission estimates for each of the 46 categories.
Section 5.4 of the Report contains brief descriptions of each
category of products in order to help the reader understand the
range of VOC-emitting products used in the various categories.
Accordingly, there is a one-page description of architectural
coatings presented on page 5-31 of the Report, that includes a
list of 46 types of architectural coatings. The page on
architectural coatings was merely descriptive, and was not meant
to imply that each product should be inventoried and ranked
separately.
For household consumer products, EPA selected 61 relatively
broad categories to include in the listing and prioritization
exercise. Similar to the architectural coatings rule, further
refinement of these categories was also possible, but EPA'grouped
household consumer product categories according to similar uses.
For example, EPA grouped all general purpose cleaners in one
category and all hair sprays in another.
Since EPA imposed consistent considerations in selecting the
category of products as well as categories of household consumer
products for listing and ranking purposes, no bias against
particular architectural coating products was introduced into the
process that would have caused specific architectural coating
products to be regulated without cause.
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Comment: One commenter (AIM-IV-D-212) stated that
California considered architectural and industrial maintenance
coatings separately from consumer and commercial products. The
commenter pointed out that California published its data and
table of product categories approximately 4 months before EPA
completed its Report in March of 1995. Based on this and other
information, the commenter concluded that the report is based
substantially on biased and predetermined conclusions on the part
of EPA.
Response: The Act's definition of consumer and commercial
products is much broader than California's definition.
Section 183(e)(l)(B) of the Act specifically defines a "consumer
or commercial product" as "any substance, product (including
paints, coatings, and solvents), or article (including any
container or packaging) held by any person, the use, consumption,
storage, disposal, destruction, or decomposition of which may
result in the release of volatile organic compounds." Since the
statutory definition of consumer and commercial products
specifically includes paints and coatings, EPA considers
architectural and industrial maintenance coatings to be within
the scope of authority of section 183(e) of the Act.
2.1.1.4 Consideration of the Impacts of Regulatory
Alternatives
Comment: Two commenters in three documents
(AIM-IV-D-214b/CP-IV-D-07b, CP-IV-F-la, CP-IV-D-07) asserted that
an analysis of the economic and environmental effects of each
alternative method of regulation (exemption, substitution, etc.)
for each category was needed in order to rank and list categories
for regulation.
One of the commenters (CP-IV-D-07) asserted that the
decision to regulate a category should include consideration of
any environmental impacts associated with exempting categories as
well as the economic costs of regulating the category with
different methods and regulating the category in each of the four
possible phases for regulation.
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One coinmenter (AIM-IV-D-214c) claimed that EPA's study of
VOC from consumer and commercial products did not identify the
availability of alternatives to such products which were of
"comparable costs" as required by section 183 (e) (2) (B) (v) of the
Act. The commenter referred to EPA's statements in the Report
that it did not have information on the cost of alternative
products and promised that it would do so in developing
regulations. The coinmenter stated that if EPA had considered
economic costs in developing regulatory criteria, as mandated, it
would have been in a position to decide which forms of regulation
were appropriate, how much time to give manufacturers to meet any
reformulation limits, and whether substitution limits were
warranted at all. The commenter referred to less stringent
measures authorized by Congress such as: labeling regulations
containing directions for use or other disclosures; economic
incentives, such as marketable permits; and control technique
guidelines for State regulation in nonattainment areas.
One commenter (AIM-IV-D-55) stated that establishment of the
four-part list of categories for regulation must be based on a
comparative analysis of both the environmental and economic
impacts of each VOC. The commenter asserted that EPA could not
regulate any category until it completed this comparative
analysis and determined the merits of other possible regulatory
options.
Response: Factors relating to economic and environmental
impacts are included under section 183 (e) (2) (B) of the Act for
the establishment of criteria to be used in prioritizing
categories of consumer and commercial products for regulation.
Here, EPA is required to consider two factors: (1) those
consumer and commercial products which are subject to the most
cost-effective controls (section 183(e)(2)(B)(iv)); and (2) the
availability of alternatives (if any) to such consumer and
commercial products which are of comparable costs, considering
health, safety, and environmental impacts
(section 183(e) (2) (B) (v) ).
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The EPA disagrees with the commenters' interpretation that
this language mandates an in-depth analysis of impacts of all
regulatory alternatives for every product category at the time of
listing. The section 183(e) list and schedule for regulations is
a prioritization exercise to be completed upon submission of the
Report. It would have been impossible for EPA to conduct the
in-depth analysis suggested by the commenters for every category
of consumer and commercial products in the 3 years Congress
provided for the study in addition to completing the other
studies and determinations necessary to complete the Report (see
section 2.1.1.1 for a more detailed discussion of the study).
The EPA therefore believes that Congress could not have intended
the Agency to perform the actions advocated by the commenters
prior to the listing and scheduling of products for regulation.
To fulfill the requirements of section 183(e)(2)(B) of the
Act, EPA developed a practical approach based on using available
information. The EPA established Criterion 5, Availability of
Alternatives and Criterion 6, Cost-Effectiveness of Controls, to
provide consideration of these two factors. Criterion 5 provides
a higher score, meaning a higher priority for regulation, to
product categories for which alternatives were available at a
comparable cost, with acceptance by consumers (as indicated by
market share), and with comparable efficacy, health effects, and
environmental impacts. Criterion 5 provided a lower score,
meaning a lower priority for regulation, to product categories
for which no alternatives were available, or for which
alternatives were available but not at a comparable cost.
Criterion 6 is discussed in section 2.1.1.5. The EPA believes
this was a reasonable approach for purposes of scoring the
categories for regulatory priority.
As mentioned above, the EPA believes that a more
comprehensive analysis of alternatives and impacts is more
consistent with and appropriate for data collection and analysis
for the BAC determination required at the time of regulation
development, not at the time of listing. For the BAC
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determination, EPA would prefer to use the most current
information possible, rather than relying on information
developed at the time of the study. The EPA does not believe it
is reasonable to do such a resource-intensive analysis twice
(i.e., for listing and for regulation), especially in light of
the fact, as discussed below, that the list and schedule are not
final rulemaking actions. Accordingly, EPA has and will continue
to evaluate the effects of alternative methods of regulation when
each category is regulated. In addition, it should be noted that
EPA will also consider "economic feasibility" and "environmental
impacts" at the time of regulation as required under
section 183(e)(l)(A) of the Act.
Furthermore, in the Federal Register notice of the schedule
for regulation [60 FR 15264, March 23, 1995], EPA noted that the
list and schedule may be amended if further information becomes
available [60 FR 15264, 15265, 15268]. Thus, as individual
products and categories are further assessed and if relevant
information becomes available, EPA will consider changing the
prioritization for regulation under section 183(e) of the Act or
even removing a category from the listing if appropriate. For
example, as explained in section 2.1.1.1, EPA initially listed
aerosol spray paint in the first group for regulation. Following
an initial regulatory assessment, EPA intends to move the aerosol
spray paints category from Group I.
Comment: One commenter (AIM-IV-D-212) asserted that EPA
failed to demonstrate economic and technological feasibility of
BAG for each of the consumer and commercial product categories.
As a result, the commenter concluded that it was difficult to
compare the technological feasibility among consumer and
commercial products.
Response: As mentioned previously, the consumer and
commercial product list and schedule required by
section 183(e)(3)(A) of the Act is a prioritization exercise, not
an analysis of the technology that should be selected as the
basis for the standards themselves. Determination of BAG is not
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required at the time of listing. The only reference to BAG in
section 183(e) of the Act relates exclusively to the regulations
established under the section. Section 183(e)(3)(A) of the Act
states: "The regulations shall require best available controls
as defined in this section." Therefore, EPA concludes that a BAG
analysis is not required at the time of listing categories for
regulation. The EPA has and will continue to determine BAG when
each category is regulated.
2.1.1.5 Consideration of Cost-Effectiveness
Comment: One commenter in two letters
(AIM-IV-D-214b/CP-IV-D-07b, CP-IV-D-07a) stated that EPA's
consideration of cost-effectiveness was inadequate for
establishing regulatory priorities. The commenter
(AIM-IV-D-214b/CP-IV-D-07b) asserted that EPA failed to perform
the clear non-discretionary duty to list categories based upon
cost-effectiveness.
The commenter (AIM-IV-D-214c) claimed that EPA failed to
consider those products which were subject to the most
cost-effective controls in establishing criteria for regulating
consumer and commercial products as mandated under
section 183(e)(2)(B)(iv) of the Act. The commenter considered
this factor particularly crucial as a preparatory step to
subsequent rulemaking under section 183(e)(1)(A) and (3)(A) of
the Act. The commenter referred to a previous court ruling in
Corrosion Proof Fittings v. EPA. 947 F.2d 1201 (5th Cir. 1991),
for the proposition that EPA is required by statute to regulate
to the extent necessary to protect the public using the least
burdensome measures. The commenter also referred to the National
Environmental Policy Act (NEPA) which the commenter contends
requires EPA to study, develop, and describe appropriate
alternatives to recommended courses of action in any proposal to
the fullest extent possible. Moreover, the commenter questioned
EPA's statement in the Report that it would evaluate information
on cost-effectiveness in developing specific regulations because
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"cost-effectiveness data are unavailable" for certain categories
at the time of listing.
Two commenters (AIM-IV-D-55, AIM-IV-D-214c) questioned EPA's
assertion that "insufficient data exists" to conduct a
comparative study of the costs and cost-effectiveness of
regulating products under section 183(e) of the Act. One
commenter (AIM-IV-D-55) stated that cost-effectiveness data were
available for architectural coatings based on a formal study done
in Southern California by an economic consultant who found and
disclosed the economic impacts of VOC regulation for
architectural coatings.
Response: In-depth discussion of the consideration of the
impacts of regulatory alternatives is presented in
section 2.1.1.4. In establishing the criteria to prioritize
consumer and commercial products for regulation,
section 183(e)(B)(iv) of the Act requires EPA to consider
"[t]hose consumer and commercial products which are subject to
the most cost-effective controls." The EPA established
Criterion 6, Cost-Effectiveness of Controls, to implement
consideration of this factor. For this criterion, EPA used two
methods to evaluate cost-effectiveness of control measures which
varied depending on the availability of cost-effectiveness data.
First, for products with a known cost-effectiveness value, EPA
assigned a higher relative priority for regulation to products
for which controls are very cost-effective. Second, for products
for which cost-effectiveness data were unavailable, EPA developed
a matrix based on scores determined by application of
Criterion 5, Availability of Alternatives, and Criterion 7,
Magnitude of Annual VOC Emissions, in order to evaluate
cost-effectiveness. The highest score, which corresponded to the
highest priority for regulation, was assigned to a product with
high emissions and for which reformulation was available at a
comparable cost to the current formulation. The lowest score,
which corresponded to the lowest priority for regulation, was
assigned to a product with low emissions and for which no
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alternative was available at any cost. This matrix is presented
and discussed more fully in section 4.6 of the Report. For
architectural coatings the cost-effectiveness estimate of
$260 per ton of VOC emissions reduction developed for the
architectural coatings rule was used to apply Criterion 6 to
architectural coatings. The EPA believes that it has considered
cost effectiveness as contemplated by section 183(e) of the Act.
As stated by the commenter, some study of the cost-effectiveness
of VOC regulation for architectural coatings has been done in
California. However, some of the data is not applicable for
extrapolation to a national level because of the assumptions used
in generating the data. Some of the proposed and promulgated VOC
content limits in California are significantly lower than limits
considered by EPA. These lower limits have significantly greater
costs and impacts than any limits considered by EPA. Thus, EPA
does not believe this data is applicable.
The March 23, 1995, notice did not represent a final agency
action on the listing determination. The notice announced that
the EPA would take comment on the listing in connection with its
rulemakings on emission standards for the categories on the
initial list, and that final agency action on the listing for
each product category would occur upon publication of a final
regulation for that category. At the time of each rulemaking,
EPA will conduct an in-depth analysis of costs and emissions
reduction. Contrary to the commenter's assertion, EPA did
conduct an economic impacts analysis (EIA) to determine the cost
effectiveness of the controls required by the proposed
architectural coatings rule. The proposed architectural coating
VOC rule has an estimated cost of $260 per ton of VOC emissions
reduction. Based on information contained in the associated
EIAs, the proposed automobile refinish VOC rule has an estimated
cost of $136 per ton of VOC emissions reduction, and the proposed
consumer products VOC rule has an estimated cost of $289 per ton
of VOC emissions reduction. These EIAs were placed in the
dockets for the respective proposed rules, and the
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cost-effectiveness of each proposed rule is discussed in the
rule's preamble which was published in the Federal Register. See
the dockets for the architectural coatings rule, the automobile
refinish rule, and the consumer products rule (A-92-18, A-95-18,
and A-95-40, respectively).
The EPA believes that the commenters are mistaken as to
several legal conclusions they seek to assert. First, EPA
disagrees that the report to Congress required separate cost
effectiveness analyses under section 183(e), section 309 of the
Act, and Executive Order (EO) 12866. As discussed more fully in
section 2.3.2.7 of this document, EPA need only comply with the
language of section 183(e) of the Act at the time of the report
to Congress, and the Agency believes that it has performed an
appropriate analysis under this section.
Second, the commenters cite Corrosion Proof Fittings v. EPA,
947 F.2d 1201 (5th Cir. 1991), for the proposition that the
Agency may only regulate to the extent necessary and using the
least burdensome means. The Agency notes that the case in
question dealt not with the Clean Air Act, but with the Toxic
Substances Control Act (TSCA) , and that the case turned upon an
express statutory provision of TSCA that does not appear in the
Clean Air Act. See ID.. 947 F.2d at 1215. Reference to this
precedent is thus inappropriate. Section 183(e) of the Act
explicitly requires EPA to issue regulations based upon "best
available controls" as that term is defined in the statute. The
definition of best available controls empowers EPA to exercise
discretion to determine what method and degree of emission
control is appropriate, without reference either explicit or
implicit to choosing the means that is "least burdensome." In
fact, EPA believes that it has properly considered and mitigated
the burdens imposed by the regulations, but disagrees with the
commenters1 allegation that it must choose the alternative that a
commenter considers least burdensome.
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Third, the Agency notes that, contrary to the assertion of
some of the commenters, NEPA does not apply to regulatory actions
of EPA under the Act. See 15 U.S.C. section 793(c)(1).
2.1.1.6. Category Scoring Process and Public Meeting
Comment: One commenter (AIM-IV-D-212) asserted that the
NAPCTAC meeting and its findings were groundless and without
merit and could not be the foundation for EPA's VOC study for the
following reasons: (1) EPA had no authority to add the two
factors to the ranking process; (2) the two additional factors
were not fair and equitable towards the paint and coatings
industry; (3) NAPCTAC had no expertise to assist EPA in the
ranking, as shown by EPA's own treatment of the group; and
(4) EPA acted in a biased fashion because it ignored reactivity.
One commenter (AIM-IV-D-212p6/CP-IV-D-35t) claimed that at a
public hearing before the NAPCTAC on July 18-19, 1994, one EPA
official responded to charges that EPA failed to consider
reactivity as required by section 183(e) of the Act, by claiming
that there was no appropriate scientific reactivity basis upon
which to determine reactivity at the present time. The commenter
stated that the EPA official did not intend to conduct reactivity
tests on solvent-borne products because he summarily concluded
that they were all reactive, and that highly reactive VOC
constituted a substantial portion of VOC contained in paint
products. The commenter stated further that in contrast to the
EPA official's statements, solvent-borne VOC are less reactive
than waterborne VOC, and on this basis, the EPA official '
prejudged the issue without providing due scientific deference
and supporting analysis.
Response: The EPA's response to the comment concerning the
addition of two factors not listed in the Act is presented in
section 2.1.1.2. The EPA's response to the comment concerning
how addition of the two factors affected the paint and coatings
industry is presented in section 2.1.1.7. The EPA's response to
the comments concerning reactivity is presented in section 2.2.1.
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Contrary to the commenter's assertion, EPA believes that
NAPCTAC had sufficient expertise to assist in the ranking, and
that the findings of the committee were valid and had merit. The
committee, as a standing advisory group, provides independent
views based upon the specialized knowledge and skills of its
members. The Committee advises the Director, Office of Air
Quality Planning and Standards (OAQPS) , on the latest available
technology and economic feasibility of alternative methods to
prevent and control air contamination to be published in air
quality control techniques guideline documents. It also advises
on air pollution control techniques and testing and monitoring
methodology for categories of sources subject to the provisions
of sections 111, 112, and 183 of the Act. In addition, the
Committee, through a subcommittee, periodically reviews Air
Quality Planning and Standards program accomplishment plans and
the associated contracts and grants awarded to carry out these
plans.
The committee consists of the Director of OAQPS, or his
designee, as Chairperson and 11 members appointed by the EPA
Deputy Administrator. Members serve overlapping terms of from
1 to 4 years. Members are selected from the chemical,
engineering, biomedical, and socioeconomic disciplines resident
in universities, State and local governments, research
institutions, and industry. Members are also selected for their
technical expertise and/or interest in the development of air
pollution control techniques. Because these members are
experienced environmental professionals, EPA believes NAPCTAC had
sufficient expertise to assist in ranking the categories of
consumer and commercial products.
To obtain balanced and unbiased input in the evaluation of
some relatively subjective criteria, EPA determined that an
independent panel should be involved in the ranking process. The
EPA considered NAPCTAC a logical choice for an independent and
technically qualified panel because of the balance afforded by
the diversity and expertise of such a group. Accordingly,' the
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Committee was convened on July 18-19, 1994, in Durham,
North Carolina, for the purpose of assigning scores for
Criteria 1 through 7 to each of the consumer and commercial
product categories. The scoring process was conducted in an open
public forum. A discussion of the criteria is presented later in
this section.
Finally, EPA notes that nothing in section 183(e) of the Act
obligated EPA to utilize NAPCTAC or any other group to assist the
Agency in its application of the criteria in the listing process.
The EPA instituted this procedure to insure a fuller evaluation
of the criteria by qualified experts aided by public input in the
ranking procedure. The EPA utilized this procedure in accordance
with the discretion granted to the Agency in ranking the products
for regulation and used the conclusions of NAPCTAC only as a
guideline for the ultimate decision to rank products in a
particular fashion.
Comment: One commenter (AIM-IV-D-212) asserted that a
conflict of interest existed because the same EPA official who
chaired the architectural coatings regulatory negotiation process
also chaired the July 1994 NAPCTAC meeting. The commenter
(AIM-IV-D-212p6/CP-IV-D-35t) demanded that the rankings be
reviewed, and that hearings be conducted by a non-biased official
so that additional public input could be used to develop more
accurate and complete information pertaining to regulated
products.
Response: As discussed above, the NAPCTAC charter
establishes that the Director of OAQPS, or his designee, serves
as Chairperson of the Committee. It is, therefore, always the
case that the Chairperson of the Committee is responsible for the
regulations discussed at each NAPCTAC meeting. In addition,
Mr. Bruce Jordan, the NAPCTAC Chairperson at the July 1994
hearing, served solely as a facilitator for the meeting and did
not participate in the scoring of any product category, including
architectural and industrial maintenance coatings. For this
2-35
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reason, EPA believes that Mr. Jordan's chairing of the meeting
did not constitute a conflict of interest.
Comment: A commenter (AIM-IV-D-212) asserted that members
of the architectural coatings industry were not properly notified
of EPA's regulatory intent, and were not provided with an
opportunity to participate in the July 1994 public NAPCTAC
meeting.
Response: The EPA disagrees that members of the industry
had inadequate notice of the NAPCTAC meeting, or an inadequate
opportunity to submit information to NAPCTAC. As explained
above, EPA convened NAPCTAC for the purpose of having an
independent panel assign scores to Criteria 1 through 7 for each
consumer and commercial product category. The meeting provided
the public, including industry representatives, an opportunity to
make statements regarding the products being scored and to
provide clarifying information to the panel. The EPA published
an announcement of the NAPCTAC meeting in the Federal Register on
July 5, 1994 [59 FR 34436] (docket A-94-65, item IV-F-2). In
addition to the time and place for the meeting, the notice
included a summary of the purpose of the meeting, a tentative
agenda, a statement that the meeting would be open to the public,
an explanation of the purpose and composition of the Committee,
and how members of the public could arrange to make presentations
at the meeting.
Throughout the meeting, and before scoring of each category
by the panel, the audience, including members of the
architectural coatings industry, was given an opportunity to ask
questions of EPA and the NAPCTAC panel and to provide information
on the categories being scored. Furthermore, several industry
representatives, including the commenter, were on the agenda and
made formal presentations. These presentations were placed in
Docket A-94-65 as part of the meeting minutes (item I-B-1).
Comment: One commenter (AIM-IV-D-212) asserted that NAPCTAC
was not independent because EPA prejudged the application of
2-36
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certain criteria and refused to allow the panel to make changes
to these scores, thereby lessening the role of the panel.
Response: As explained above, EPA convened NAPCTAC to
assist EPA in assigning criteria scores to each product category
because the Committee is an independent panel of environmental
experts. The overall scoring process involved assigning a value
from 1 to 5 for Criteria 1 through 7 for each of 105 consumer and
commercial product categories. These criteria are: Criterion 1,
Product Utility; Criterion 2, Commercial Demand (as indicated by
annual dollar sales in 1990); Criterion 3, Health or Safety
Functions; Criterion 4, Emissions of Highly-Reactive Compounds;
Criterion 5, Availability of Alternatives; Criterion 6,
Cost-Effectiveness of Controls; and Criterion 7, Magnitude of
Annual VOC Emissions. Criterion 8, Regulatory Efficiency and
Program Considerations, was applied by EPA subsequent to the
NAPCTAC meeting, and is discussed further in section 2.1.1.2.
The primary objective of the NAPCTAC meeting was for the
panel to assign a score to each criterion for each of the
105 product categories. Three of the seven scored criteria
(Criteria 2, 4, and 7) were objective criteria that could be
evaluated quantitatively, and four of the criteria were
subjective criteria requiring judgement. Preliminary scores for
the three objective criteria had been entered by EPA prior to the
NAPCTAC meeting. The EPA conducted research to develop the
quantitative information, and used that information to assign
tentative scores for the three objective criteria. These'
tentative scores could have been revised by the NAPCTAC panelists
if they so desired.
The four subjective criteria (Criteria 1, 3, 5, and 6) were
scored by the NAPCTAC panel. The EPA prepared a score sheet for
each category which provided information to help the panel
understand the products in the category and the subjective
criteria being scored. Nevertheless, EPA made no recommendations
to the panel on what scores to assign to any particular category
2-37
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and made no changes to the individual scores assigned by the panel
The score sheets also displayed the scores previously
entered by EPA for the objective criteria and presented the data
that were the basis for the assigned scores. This provided an
opportunity for the NAPCTAC panel and meinbers of the public
attending the open meeting to review and comment on the
preassigned scores for Criteria 2, 4, and 7.
The scoring process was conducted as follows for each of the
105 categories of products. First, EPA presented the information
entered on the score sheet to the NAPCTAC panel and to the
audience. The audience was allowed time to offer comments or
provide clarification. The panel was then given an opportunity
to discuss the category being scored. Each NAPCTAC panelist then
assigned a score for each of the four subjective criteria, and
was free to make corrections to preassigned scores. The EPA
collected the score sheets and averaged the panelists' scores for
each criterion. A composite score was compiled for the category
by adding the average scores for all seven criteria. This
process was repeated for each category.
In response to this comment, EPA has again reviewed all of
the original score sheets used by the panelists. There was no
indication on any score sheet that EPA had ignored a
recommendation from any panelist regarding scores of either
objective (EPA-scored) or subjective (panel-scored) criteria. In
fact, in two product categories - Other Metal Product Coatings
(later referred to as "Miscellaneous Metal Products Coatings")
and Auto and Light Truck Assembly Coatings - EPA used scores that
several panelists had entered in place of the preassigned scores
for Criterion 4, Emissions of Highly Reactive Compounds. This
.demonstrates that EPA did not refuse to change the preassigned
scores as the commenter asserts.
Comment: One commenter (AIM-IV-D-212) asserted that NAPCTAC
was not provided with all of the information that it needed to
make valid rankings.
2-38
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Response: As discussed above, score sheets were prepared
for each product category being scored. To the extent possible,
EPA provided information on the score sheets to facilitate the
committee in making informed decisions. In cases where EPA had
little or no data on specific criteria, EPA relied on the
expertise of the panel as well as input from members of the
public attending the meeting.
Prior to the July 1994 meeting, EPA mailed NAPCTAC members
packages of information containing background on section 183(e)
of the Act, documents discussing the criteria, and advance copies
of product category score sheets. Two teleconferences were
conducted in order to brief NAPCTAC on section 183(e) of the Act
I
and to prepare them for the July meeting. The EPA thus believes
that NAPCTAC had the necessary information to perform the scoring
exercise.
Comment: The commenter (AIM IV-D-212) further stated that
the committee was hindered in making valid decisions because it
was unclear to NAPCTAC whether the inventories excluded or
included compounds not classified as "reportable VOC" (RVOC).
The commenter further stated that the committee ranked the
products without considering the RVOC factor because they had no
knowledge that such a factor existed.
One commenter (CP-IV-D-35) stated that EPA considered
volatility of VOC instead of reactivity, which was not consistent
with the requirements of the Act.
Response: The EPA employed a volatility cutoff for purposes
of collecting information in the consumer product survey as
discussed in section 5.3 of the report to Congress. The term
"RVOC" was used exclusively in the household consumer products
survey. Respondents to the survey were instructed to report
those VOC's which had a vapor pressure of greater than
0.1 millimeter of mercury at 20 degrees Celsius (° C). This
cutoff was selected because existing State consumer product
regulations, as well as State surveys, employed this threshold.
As a result, EPA had emissions information in two forms. "For all
2-39
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categories except household consumer products, the VOC emissions
inventory included all VOC; the VOC inventory data for the
61 household consumer product categories included only the RVOC.
The EPA agrees that no distinction was made on the score sheets
provided to the panel regarding this fact. To make a more direct
comparison with other categories, all VOC emissions should have
been included in the household consumer product VOC inventory,
not just the RVOC. This oversight, therefore, potentially
affects the scores for the 61 household consumer product
categories with respect to Criterion 7, Magnitude of Annual VOC
Emissions.
However, EPA believes that this did not affect the outcome
i
of the scoring exercise. After the commenter raised this issue,
EPA investigated to determine whether the scores for the
61 household consumer product categories would have been
significantly affected if all VOC emissions, not just RVOC, had
been counted in the inventory. To do this, EPA adjusted the
total VOC emission estimates to account for the missing VOC
content. Although detailed information concerning the magnitude
of RVOC found in consumer products as compared to total VOC
content is not available, EPA believes the portion of missing VOC
content to be no more than 10 percent. The EPA chose to evaluate
the impact of this oversight by using the very conservative
estimate that adding missing VOC back into the inventory could
potentially double the magnitude of annual emissions for each of
the 61 household consumer product categories scored. Based upon
this analysis, EPA determined that the outcome of the ranking
exercise would not have been significantly different. The result
of this exercise is discussed more fully in section 2.1.2.1.
The EPA disagrees that volatility was substituted for
consideration of photochemical reactivity in the ranking process.
The EPA's consideration of highly reactive compounds is discussed
previously in this section.
Comment: One commenter in two letters (AIM-IV-D-212,
CP-IV-D-35v/AIM-IV-D-212p5) stated that the Committee did" not
2-40
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have adequate knowledge of the complete VOC inventory because the
presence of VOC in the ambient air due to emissions from these
products and thus availability for ozone formation of VOC from
consumer and commercial products was not substantiated by ambient
monitoring.
Response: The EPA believes that the VOC inventory
information provided to the NAPCTAC panel was adequate for
purposes of ranking categories for regulation. As explained in
section 2.1.2, because of the difficulty in tracking the fate of
individual compounds and their atmospheric transformations, and
in obtaining precise measurements of trace compounds involved in
ozone chemistry, EPA relies on the conservative assumption that
all VOC emitted by consumer and commercial products are available
in the atmosphere to react to form ozone.
Comment: Two commenters in three letters
(AIM-IV-D-212p6/CP-IV-D-35t, CP-IV-D-07, CP-IV-D-35) stated that
EPA exhibited prejudice in the listing of categories for
regulation. One commenter (AIM-IV-D-212p6/CP-IV-D-35t) stated
that the rankings set forth by EPA were inaccurate, not based on
factual data, and possibly biased against certain industries and
products because of preconceptions and prejudgments by EPA
officials. The commenter (CP-IV-D-35) stated that a number of
consumer products were given high scores and yet did not appear
on EPA's list of products for regulation. The commenter cited
fragrances as an example. Another commenter (CP-IV-D-07)
asserted that numerous product categories with very high VOC
emissions escaped listing altogether which the commenter asserted
was highly prejudicial to all those categories which have been
listed.
Response: The ranking to which the commenter is referring
is the preliminary ranking that was based on Criterion 1
through 7 only. The scoring process and the input provided by
NAPCTAC is discussed in detail earlier in this section. The
result of the preliminary ranking is available in Docket A-94-65,
item I-B-2.
2-41
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Subsequent to the preliminary ranking by NAPCTAC, EPA
applied Criterion 8, Regulatory Efficiency and Program
Considerations, to identify which product categories should be
listed in the schedule for regulation (see section 2.1.1.2).
Application of Criterion 8 did cause some categories in the
preliminary ranking to be displaced by other categories. For
example, the 24 categories of household consumer products, many
of which were not among the preliminary set of categories
accounting for at least 80 percent of emissions in the
preliminary ranking were listed as a group. As a result,
personal fragrances, which was among those categories which
accounted for at least 80 percent of emissions in the preliminary
ranking table, were displaced in the final prioritized list. The
listing of the 24 categories of consumer products in Group I is
discussed in a Federal Register notice [60 FR 15264] which was
published on March 23, 1995 and is also discussed in the preamble
to the proposed household consumer products VOC rule
[61 FR 14531] published on April 2, 1996. The EPA notes that it
was within the Agency's discretion under section 183(e) of the
Act to determine which products to regulate in which phase of
regulations, taking into consideration the criteria developed for
making such determinations.
2.1.1.7 Ranking of Architectural Coatings
Comment: One commenter in two letters (AIM-IV-D-212,
AIM-IV-D-212p6/CP-IV-D-35t) stated that Mr. Bruce Jordan's
demeanor, attitude, and public statements gave some members of
the paint industry the impression that the industry must resign
itself to be regulated. The commenter implied that EPA was
determined to regulate the paint industry not on the basis of
science, but on EPA's prejudgment. The commenter contended that
"Administrator Jordan was in a position to adopt procedures and
factors so as to ensure that the architectural coatings industry
would be ranked within the first group for regulation." The
commenter concluded that the findings of the section 183(e) study
2-42
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were based substantially on biased and highly predetermined
conclusions on the part of EPA.
The commenter (AIM-IV-D-212) asserted that EPA utilized old
and unreliable information upon which to base its assumptions.
The commenter noted that in July 1992 when regulatory negotiation
started, the architectural coatings industry had not completed
its inventory, the section 183(e) study had not been completed, a
listing had not been made, and the statutory requirement of
commencing regulation 2 years after submission of the report to
Congress had not occurred. The commenter asserted that EPA
"jumped the gun" in its haste to regulate architectural coatings
based on biased assumptions from the 1989 Office of Technology
Assessment (OTA) report.^ The commenter claimed the OTA report
was inaccurate, incomplete, and lacking in merit and credibility.
One commenter (AIM-IV-D-212p6/CP-IV-D-35t) asserted that the
ranking of architectural coating products should not have
occurred until after all objective studies were conducted. The
fact that the architectural coatings regulatory negotiation
proceedings began before this point was allegedly demonstrable
evidence that EPA prejudged regulation of the architectural
coating industry before completion of all studies.
Response: The EPA did not prejudge the architectural
coatings category for regulation. The architectural coatings
category received a high priority for regulation through the
application of the criteria developed in accordance with
section 183(e). (See section 2.1.1.6). The architectural
coatings category received the highest score for Criterion 5,
Availability of Alternatives; Criterion 6, Cost-Effectiveness of
Controls; and Criterion 7, Magnitude of Annual VOC Emissions.
The EPA did not use Criterion 8, Regulatory Efficiency and
Program Considerations, to adjust the ranking of architectural
coatings.
Prior to the ranking of architectural coating products, EPA
had initiated the regulatory negotiation process based on the
expectation that this relatively large source of VOC emissions
2-43
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EPA-453/R-98-008b
NATIONAL VOLATILE ORGANIC COMPOUND EMISSION STANDARDS
FOR CONSUMER PRODUCTS BACKGROUND FOR PROMULGATED STANDARDS
Emission Standards Division
U.S. Environmental Protection Agency
Office of Air and Radiation
Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 27711
August 1998
-------
DISCLAIMER
This report has been reviewed by the Emission Standards Division
of the Office of Air Quality Planning and Standards, EPA, and
approved for publication. Mention of trade names or commercial
products is not intended to constitute endorsement or
recommendation for use. Copies of this report are available from
National Technical Information Services, 5285 Port Royal Road,
Springfield, VA 22161.
ii
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TABLE OF CONTENTS
Page
1.0 LIST OF COMMENTERS 1-1
2.0 SUMMARY OF PUBLIC COMMENTS 2-1
2.1 LEGISLATIVE AUTHORITY 2-1
2.1.1 Application of the Section 183(e)(2)(B)
Factors 2-1
2.1.2 National Rule vs. Control Techniques
Guidelines 2-3
2.1.3 Regulation of a Subset of Consumer
Products 2-4
2.2 PROPOSED STANDARDS 2-6
2.2.1 Applicability . 2-6
2.2.2 Definitions 2-14
2.2.3 Standards for Consumer Products 2-29
2.2.4 Innovative Product Provisions 2-37
2.2.5 Code-dating 2-37
2.2.6 Variances 2-38
2.2.7 Test Methods 2-41
2.2.8 Charcoal Lighter Material Compliance
Testing Protocol 2-41
2.2.9 Recordkeeping and Reporting 2-43
2.3 IMPACTS 2-52
2.3.1 Cost Effectiveness 2-52
2.4 MISCELLANEOUS ISSUES AND CLARIFICATIONS 2-57
LIST OF TABLES
1-1 LIST OF COMMENTERS ON PROPOSED NATIONAL EMISSION
STANDARDS FOR CONSUMER PRODUCTS 1-2
ill
-------
1.0 LIST OF COMMENTERS
A list of the commenters, their affiliations, and
Environmental Protection Agency (EPA) docket number assigned
to their correspondence is given in table 1-1.
1-1
-------
TABLE 1-1. LIST OF COMMENTERS ON PROPOSED NATIONAL
EMISSION STANDARDS FOR CONSUMER PRODUCTS
Docket numbera Commenter and affiliation
IV-D-01 J. Janeczek Jr., P.E.
Capital Cities/ABC, Inc.
New York, New York
IV-D-02 R.D. Elliott
Executive Director
Southwest Air Pollution
Control Authority
Vancouver, Washington
IV-D-03 S.R. Cornes
Regulatory Compliance Specialist
The Solaris Group
San Ramon, California
IV-D-04 G.F. Tappan
Section Chief
Regulatory Affairs
Block Drug Company, Inc.
Jersey City, New Jersey
IV-D-05 H. Hironaka
Vice President
F-Matic of America
American Fork, Utah
IV-D-06 A.W. Effinger, Esq.
General Counsel
American Pet Products
Manufacturers Association, Inc.
Greenwich, Connecticut
IV-D-07 W.M. Smiland
Law Offices of Smiland & Khachigian
Los Angeles, California
IV-D-08 S.C. Steinback
Manager of State Legislative Affairs
International Sanitary Supply
Association, Inc.
Lincolnwood, Illinois
IV-D-09 B.F. Mannix
President
Buckland Mill Associates
Gainesville, Virginia
1-2
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TABLE 1-1. LIST OF COMMENTERS ON PROPOSED NATIONAL
EMISSION STANDARDS FOR CONSUMER PRODUCTS
(CONTINUED)
Docket number3- Conmaenter and affiliation
IV-D-10 W.K. Lim
President
Aerosol Services Company, Inc.
City of Industry, California
IV-D-11 B. Mathur
Chief
Bureau of Air
State of Illinois
Environmental Protection Agency
Springfield, Illinois
IV-D-12 S.E. Dudley
Vice President
Director of Environmental Analysis,
Economists, Incorporated
Washington, DC
IV-D-13 B.A. Kwetz
Director
Division of Air Quality Control
Commonwealth of Massachusetts
Department of Environmental Protection
Boston, Massachusetts
IV-D-14 R. Sedlak
Technical Director
The Soap and Detergent Association
New York, New York
IV-D-15 D.I. Greehaus
National Automobile Dealers Association
McLean, Virginia
IV-D-16 R.G. Sliwinski, Chief
Stationary Source Inventory
and Planning Section
Division of Air Resources
New York State Department of
Environmental Conservation
Albany, New York
IV-D-17 W.F. Holman, Association Director
Laundry & Cleaning Products
Procter & Gamble Company
Cincinnati, Ohio
1-3
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TABLE 1-1. LIST OF COMMENTERS ON PROPOSED NATIONAL
EMISSION STANDARDS FOR CONSUMER PRODUCTS
(CONTINUED)
Docket number5 Commenter and affiliation
IV-D-18 D. Stringham, Director
Regulatory and State Government Affairs
Safety-Kleen
Elgin, Illinois
IV-D-19 D. Raymond
Division Director of Regulatory Affairs
Sherwin-Williams Diversified
Brands, Inc.
Solon, Ohio
IV-D-20 Chlorobenzene Producers Association
Washington, DC
IV-D-21 E.J. Moyer
Director of Regulatory Affairs
Reckitt & Colman, Inc.
Montvale, New Jersey
IV-D-22 K.W. Chilton, Ph.D.
Director
Center for the Study of American
Business
Washington University in St. Louis
St. Louis, Missouri
IV-D-23 G.A. Green
Division Administrator
Air Quality
Department of Environmental Quality
State of Oregon
Portland, Oregon
IV-D-24 D.F. Theiler, Director
Bureau of Air Management
Department of Natural Resources
State of Wisconsin
Madison, Wisconsin
IV-D-25 P.M. Meehan
Director of Product Safety
Environment and Regulatory Compliance
The Clorox Company
Pleasanton, California
1-4
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TABLE 1-1. LIST OF COMMENTERS ON PROPOSED NATIONAL
EMISSION STANDARDS FOR CONSUMER PRODUCTS
(CONTINUED)
Docket number5 Commenter and affiliation
IV-D-26 L.L. Calhoun
Environmental and Health Regulatory
Affairs and T.A. Threet
Legal Department
The Dow Chemical Company
Midland, Michigan
IV-D-27 R.H. Roos
Vice President & General Counsel
Sally Beauty Company, Inc.
Denton, Texas
IV-D-28 J.M. Spagnoli
Agriculture Division
Bayer Corporation
Kansas City, Missouri
IV-D-29 D. Pearson
Executive Director
Texas Natural Resource
Conservation Commission
Austin, Texas
IV-D-30 L.A. Braem
Director Environmental Law
Schering-Plough Healthcare Products
Liberty Corner, New Jersey
IV-D-31 W.D. Anderson
Managing Director
Resilient Floor Covering Institute
Rockville, Maryland
IV-D-32 J. Gledhill
The EOP Group
Washington, DC
IV-D-33 R. Engel, President
Chemical Specialties
Manufacturers Association
Washington, DC
IV-D-34 L.A. Spurlock, Ph., CAE
Chemical Manufacturers Association
Arlington, Virginia
1-5
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TABLE 1-1. LIST OF COMMENTERS ON PROPOSED NATIONAL
EMISSION STANDARDS FOR CONSUMER PRODUCTS
(CONTINUED)
Docket number8- Commenter and affiliation
IV-D-35 R.E. Mitchell
Chairman of the Board
Dunn-Edwards Corporation
Los Angeles, California
IV-D-36 D.K. Johnson
Principal Facility Environmental
Control Engineer
Environmental Quality Office
Ford Motor Company
Dearborn, Michigan
IV-D-37 J. A. Word
Associate Counsel
Conair Corporation
Stamford, Connecticut
IV-D-38 D.M. Adams
Vice President-Quality Assurance
Regulatory Affairs and Consumer Affairs
American Home Food Products, Inc.
Madison, New Jersey
IV-D-39 R.M. Horton
Regulatory & Sales Support Manager
Dragon Corporation
Roanoke, Virginia
IV-D-40 F.N. Romano
Chairman of the Board
Chief Executive Officer
Key West Fragrance &
Cosmetic Factory, Inc.
Key West, Florida
IV-D-41 W.C. Balek
Director of Legislative Affairs
International Sanitary Supply
Association, Inc.
Lincolnwood, Illinois
IV-D-42 I.S. Combe
Chairman
Combe Incorporated
White Plains, New York
1-6
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TABLE 1-1. LIST OF COMMENTERS ON PROPOSED NATIONAL
EMISSION STANDARDS FOR CONSUMER PRODUCTS
(CONTINUED)
Docket number3- Commenter and affiliation
IV-D-43 B. Costino
Vice President
Marianna Manufacturing &
Distribution Center
Omaha, Nebraska
IV-D-44 M.A. Dirzis
Director
Government Affairs
Avon Products, Inc.
New York, New York
IV-D-45 E.O. Sullivan
State of Maine
Department of Environmental Protection
Augusta, Maine
IV-D-46 T.J. Donegan, Jr.
Vice President-Legal and General Counsel
The Cosmetic, Toiletry, and
Fragrance Association
Washington, DC
IV-D-47 P.T. Haluza
Director
Government Relations & Public Affairs
and
L. Hansen, Executive Secretary
Automotive Chemical
Manufacturers Council
Washington, DC
IV-D-48 R.N. Hiatt
Chairman
Maybelline, Inc.
Memphis, Tennessee
IV-D-49 G.T. Blair
Haarmann & Reimer Corporation
Springfield, New Jersey
IV-D-50 S.I. Sadove
President
Clairol
Stamford, Connecticut
1-7
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TABLE 1-1. LIST OF COMMENTERS ON PROPOSED NATIONAL
EMISSION STANDARDS FOR CONSUMER PRODUCTS
(CONTINUED)
Docket number3 Coitimenter and affiliation
IV-D-B1 E. Zeffren, Ph.D.
President
Helene Curtis, Inc.
Chicago, Illinois
IV-D-52 D.L. Stein
Senior Specialist
3M Corporate Product Responsibility
St. Paul, Minnesota
IV-D-53 R.N. Sturm
Director
Professional & Regulatory Services
The Procter & Gamble Company
Cincinnati, Ohio
IV-D-54 J.B. Hallagan
Law Offices
Daniel R. Thompson, P.C.
Washington, DC
IV-D-55 F.H. Brewer
Director of Government Relations
SC Johnson Wax
Racine, Wisconsin
IV-D-56 S.P. Risotto
Director of Regulatory Affairs
Halogenated Solvents Industry
Alliance, Inc.
Washington, DC
IV-D-57 T. Formby
Manager
Business and Regulatory Development
Clean Air Action Corporation
Tulsa, Oklahoma
IV-D-58 R. Miller
Vice President, Technology
CELLULOSE FOOD CASING, RAYON,
CELLOPHANE, AND CELLULOSE ETHER
Industries, Inc.
Warminster, Pennsylvania
1-1
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TABLE 1-1. LIST OF COMMENTERS ON PROPOSED NATIONAL
EMISSION STANDARDS FOR CONSUMER PRODUCTS
(CONTINUED)
Docket number9- Commenter and affiliation
IV-D-59 E.S. Piszynski
Vice President
Laboratory Services
Hydrosol Incorporated
Bridgeview, Illinois
IV-D-60 J.D. Dunlap, III
Chairman
Air Resources Board
California Environmental Protection
Agency
Sacramento, California
IV-D-61 M.H. Michael
Vice President
Associate General Counsel
and Assistant Secretary
Avon Products, Inc.
New York, NY
IV-D-62 R.A. Valentinetti
Division Director
Department of Environmental
Conservation
State of Vermont
Waterbury, VT
IV-D-63 E.J. Moyer
Director of Regulatory Affairs
Reckitt & Colman, Inc.
Montvale, NJ
IV-D-64 E.J. Moyer
Director of Regulatory Affairs
Reckitt & Colman, Inc.
Montvale, NJ
IV-D-65 J.D. Sullivan
General Counsel
Cosmair, Inc.
New York, NY
IV-D-66 A.O. Armstrong
Chief Executive Officer
Merle Norman Cosmetics
Los Angeles, CA
1-9
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TABLE 1-1. LIST OF COMMENTERS ON PROPOSED NATIONAL
EMISSION STANDARDS FOR CONSUMER PRODUCTS
(CONTINUED)
Docket number3 Commenter and affiliation
IV-D-67 M. Sweet
Deputy General Counsel
Unilever
New York, NY
IV-F-l(a) B. Mitchell
Dunn-Edwards Corporation
IV-F-l(b) M. Thompson
Chemical Specialties Manufacturers
Association
IV-F-1© L. Allred
S.C. Johnson Wax
IV-F-1(d) T. Wernick
Gillette
IV-F-1(e) J. Zajac
Sherwin-Williams
IV-F-1(f) D. Stein
3M
IV-F-1 (g) B. Mercer
Prestone
IV-F-1(h) A. Effinger
American Pet Products
Manufacturers Association
IV-F-1(I) S. Steinbeck
International Sanitary Supply
Association
IV-F-1(j) B. Sabo
Apollo Industries
IV-F-1 (k) G. Brown
National Aerosol Association
IV-F-1(1) C. Wills
Mary Kay Company
IV-F-1(m) C. Beckley
Cosmetic, Toiletry and Fragrance
Association
a The docket number for Consumer Products Rule is A-95-40.
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2.0 SUMMARY OF PUBLIC COMMENTS
The EPA received a total of 67 letters and 13 public
hearing comments on the proposed rule. This document contains
summaries and responses to comments mainly concerning the
provisions of the proposed consumer products rule. However,
at the time of proposal of the rule, EPA specifically
requested comment on certain topics concerning section 183(e)
in general. Therefore, those comments and responses are
discussed in this document as well. In order to avoid
duplication, most comments that pertain to EPA's study, Report
to Congress, and schedule for regulations under section 183(e)
are discussed in a separate comment response document,
Response to Comments on Section 183 (e) Study and Report to
Congress (EPA-453/R-98-007) also referred to as the 183-BID.
2.1 LEGISLATIVE AUTHORITY
2.1.1 Application of the Section 183(e) (2) (B) Factors
Comment: The EPA requested comments on whether the
Agency should use the five factors specified in
section 183 (e) (2) (B) during regulatory development for
specific categories of consumer and commercial products, or
only to set priorities for regulating these categories under
section 183 (e) . One commenter (IV-D-13) stated that the
Agency should consider the five factors throughout policy and
regulation development because such considerations will
provide more effective regulations. A second commenter
(IV-D-33) endorsed what EPA did. They stated that EPA
considered the five factors and the regulatory criteria
developed under section 183 (e) in regulating these consumer
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products. As a result, the commenter asserted that EPA chose
the best available controls for these 24 categories of
products.
Response: Pursuant to section 183(e)(2)(A), EPA
established eight criteria based on the five factors set forth
in section 183(e)(2)(B) and other considerations to develop
the list and schedule for regulation of consumer and
commercial products under section 183(e). The EPA's
interpretation of each of the five factors and the rationale
and intent of each of the eight criteria are discussed in
detail in the section 183(e) report to Congress. The eight
criteria and the process of applying them are discussed in
more detail in section 2.1.1.6 of the 183-BID. The EPA
interpreted the statute to require that the five factors be
used solely for establishing criteria for prioritizing product
categories for regulation and that best available controls
(BAG) for the category of product be used for development of
regulations under section 183(e) of the Act.
The EPA requested comments on alternative interpretations
of the statute and how the five factors could be used in the
regulatory process. Only two responses were received. One
responder supported EPA's interpretation of the statute. The
other responder made a general comment that the five factors
should be considered throughout the regulatory process but did
not provide feedback on how to take the five factors into
account in a practical way during development of the
regulations. As a result, EPA continues to believe that its
interpretation of the statute is the most reasonable way to
develop regulations for consumer and commercial products and
will continue to base these regulations solely on what it
determines to be BAG. When determining BAG, the Act requires
EPA to consider technological and economic feasibility, and
health, environmental, and energy impacts. This BAG authority
allows EPA the flexibility to consider any potentially adverse
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impact that is relevant including impacts related to any of
the five statutory factors.
2.1.2 National Rule vs. Control Techniques Guidelines
Comment: A number of commenters (IV-D-01, IV-D-02,
IV-D-04 to 06, IV-D-08, IV-D-10, IV-D-11, IV-D-13, IV-D-14 to
17, IV-D-19, IV-D-21, IV-D-23, IV-D-24, IV-D-28, IV-D-29,
IV-D-33, IV-D-40, IV-D-42, IV-D-44 to 46, IV-D-48 to 56,
IV-D-58 to 60, IV-D-65 to 67, IV-F-l(d), IV-F-l(j), IV-F-l(k),
IV-F-l(l)) stated that they supported EPA's proposed national
consumer products rule.
Several commenters (IV-D-05, IV-D-29, IV-D-42, IV-D-46,
IV-D-48 to 51, IV-D-53, IV-D-56, IV-F-l(b)) stated their
support for the national rule because it will ensure
substantial reduction in volatile organic compounds (VOC)
emissions from consumer products. One commenter (IV-F-l(b))
approved of the proposed rule because it allows significant
reduction in VOC content and emissions without banning any
product category or product form.
Response: The EPA believes that nationwide controls are
an effective and efficient approach for regulating this
industry. The EPA believes that a national rule for consumer
products is the best method to obtain effective and
enforceable reductions in VOC emissions from this category of
product because content control will ensure reductions of VOC
emissions. Efficiency is gained because States will not need
to devote resources to develop individual State regulations.
Similarly, companies that market consumer products across
State lines will not have to comply with potentially different
requirements from many States, thereby increasing efficiency
for the regulated industries.
Furthermore, in contrast to traditional point source
categories for which emissions principally occur at a few set
locations, consumer product emissions occur wherever the
products are used. Transportability of consumer and
commercial products tends to decrease rule effectiveness due
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to the likelihood of noncompliant products being bought in
attainment areas and used in nonattainment areas. In
addition, since the end-users include homeowners and other
widely varied consumers, effective enforcement would be
limited.
The EPA recognizes that in some cases control techniques
guidelines (CTG) may effectively reduce emissions of VOC in
nonattainment areas without imposing control costs on
attainment areas. However, for small volume consumer products
that are widely used, such as those covered by this rule, EPA
believes CTGs may not be as effective at reducing VOC
emissions because of difficulties in enforcement. In
addition, industry has advised EPA that the cost of having
different product lines for attainment versus nonattainment
areas, as would potentially occur if the Agency chose to
implement CTGs rather than rules, could be cost prohibitive
because of the duplicative effort of product labeling,
storage, and distribution management. Therefore, EPA expects
that using CTGs would be less cost-effective than a national
rule. Also, during the development of the proposed rule,
industry representatives expressed concern that differences in
State and local requirements for consumer products, as would
occur under a CTG, could disrupt the national distribution
network for consumer products. Based on these and other
considerations, EPA has decided to promulgate the consumer
products rule as a national rule rather than as a CTG.
2.1.3 Regulation of a Subset of Consumer Products
Comment: The EPA requested comment on setting emission
limits for a subset of the 24 consumer product categories that
were most cost-effective for regulation. One State commenter
(IV-D-13) supported selecting the categories which provided
the biggest emissions reductions for the least cost. The
commenter contended that this was the most cost-effective way
of implementing the consumer products rule. The commenter
pointed to the Massachusetts rule which reflects this choice
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through regulating only 10 categories. The commenter
encouraged EPA to consider similar cost/benefit analyses at
the national level. Another responder (IV-D-33) supported EPA
regulating all 24 categories. The commenter pointed out that
several states already regulate these products, requiring the
consumer products industry to expend considerable resources to
meet these state standards. The commenter expressed concern
that any product not regulated nationally could be subjected
to differing state regulations that could further reduce the
cost effectiveness of controls.
Response: The EPA has concluded that the most reasonable
approach is to promulgate rules for all 24 of the listed
consumer product categories. Based on public comments, there
are no adverse impacts of promulgating BAG for these products.
While controls for some products may be more cost-effective
than for others, EPA has concluded that a strategy of
regulating a subset of these categories based on cost
effectiveness would be counter-productive. The potential
efficiency from a cost-effectiveness approach would be more
than offset by the extra costs to the industry of inconsistent
regulations across the States.
Representatives of the consumer products industry have
expressed concern that differences in State and local
requirements for consumer products could disrupt the national
distribution network for consumer products. They have,
therefore, urged EPA to issue rules for consumer products to
encourage consistency across the country. Many States with
ozone pollution problems are also supportive of an EPA
rulemaking that will assist them in their efforts toward
achievement of ozone attainment. At least 13 States have
included anticipated reductions from the Federal consumer
products rule as part of their State implementation plans to
reduce VOC emissions. Without a comprehensive Federal rule,
these States may also promulgate local consumer product rules.
Thus, excluding any product from regulation would promote a
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patchwork of regulations for that product that will further
increase cost of compliance to manufacturers.
In addition, all 24 of these product categories are
regulated somewhere. Eight States (California, Connecticut,
Massachusetts, New Jersey, New York, Oregon, Rhode Island, and
Texas) are currently enforcing VOC standards for various
categories of consumer products. Therefore, resources are
already being invested in the development of compliant
products. A consistent Federal regulation will ensure the
maximum environmental benefit for this investment. The
absence of a Federal regulation will not save these product
development costs and could result in even greater compliance
costs for limited or no additional environmental gain.
2.2 PROPOSED STANDARDS
2.2.1 Applicability
Comment: Three commenters (IV-D-26, IV-D-33, IV-D-34)
supported EPA's proposal to exempt organic compounds with
little or no volatility from consideration in setting VOC
content standards for consumer products.
Response: The EPA believes that for this rule regulating
low vapor pressure VOC will result in insignificant VOC
reductions and in significant increases in the recordkeeping
and reporting costs of complying with the rule. The EPA has
exempted organic compounds of little or no volatility from
consideration in setting VOC content limits in the final
consumer products rule. The basis for such an exemption is
primarily the lack of an established test method for VOC
content in consumer products. This contrasts with paints, for
example, for which an accepted test method - Reference Method
24 - exists and is used to compare VOC contents of products
and to determine compliance. Furthermore, every existing
State consumer products rule incorporates an exemption for low
vapor pressure VOC. Because of the lack of a test method, and
to be consistent with established State rules, the EPA used
the same approach as the States when comparing products,
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determining best available controls, and setting VOC limits in
the consumer products rule.
Comment: One commenter (IV-D-26) also requested that EPA
exempt low vapor pressure compounds from the entire rule. The
commenter requested that EPA exempt low vapor pressure
compounds from § 59.204 which deals with innovative products
as well.
Response: The EPA's intent was to exempt low vapor
pressure compounds from the entire rule and the Agency has
revised the final rule to indicate this exemption.
Comment: One commenter (IV-D-20) requested that EPA add
an exemption for air fresheners that contain at least
98 percent paradichlorobenzene (PDCB). The commenter asserted
that this would be consistent with the exemption for
insecticides containing at least 98-percent PDCB. The
commenter argued that the two products, insecticides and air
fresheners, have similar product characteristics and that all
States that have adopted consumer product VOC limitations have
exempted both air fresheners and insecticides containing more
than 98 percent PDCB.
Response: As the commenter mentioned, the proposed rule
already included an exemption for some PDCB insecticides.
These PDCB insecticides (e.g., "moth balls") and air
fresheners (e.g., "toilet deodorant blocks") consist of nearly
100 percent PDCB formed into spheres and other shapes and,
therefore, cannot be reformulated to lower VOC content.
Consequently, in order to avoid banning such products, the EPA
has added an exemption for air fresheners containing at least
98 percent PDCB to the final rule as the commenter suggested.
This exemption is also consistent with the States that have
adopted consumer product VOC limitations. Thus, EPA considers
exemption of PDCB air fresheners to be BAG.
Comment: Two commenters (IV-D-25, IV-D-33) suggested
that the proposed regulations exclude products manufactured
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for use in the U.S. territories, such as Puerto Rico, Guam,
etc.
Response: It is EPA's intent that the rule will apply
not only in the 50 States, but in all the U.S. territories as
well. The definition of "State" in section 302(b) of the
Clean Air Act (Act) includes U.S. territories. When
developing regulations, EPA strives to be consistent with
other Federal regulations. Since new source performance
standards that are already promulgated under 40 CFR 60 do not
exclude U.S. territories from their regulations, EPA did not
intend to exclude them from the consumer products standards.
To make this clear, a definition of "United States" has been
included in the final rule.
Comment: Two commenters (IV-D-13, IV-D-24) indicated
that EPA should add additional product categories to the rule.
One commenter (IV-D-24) suggested that EPA add a personal
fragrance products category along with the California Air
Resources Board (CARB) specified VOC limits to the final rule.
Another commenter (IV-D-13) stated that EPA should include a
definition and VOC limit for "insect repellant."
Response: The EPA did not select personal fragrances and
insect repellants as product categories for regulation based
on application of the criteria established by the Agency
pursuant to section 183 (e). These products did not rank
within the top 80 percent of VOC emitting consumer and
commercial products in ozone nonattainment areas. Therefore,
EPA has not added personal fragrance and insect repellant
categories to the final rule.
Comment: One commenter (IV-D-31) expressed concern that
flooring seam sealers used for the installation of sheet vinyl
flooring would be covered under the household adhesives
category of the consumer products rule. The commenter further
stated that the bonding qualities required for sheet vinyl
installation make seam sealers with a low VOC content
technically infeasible at this time. In addition, the
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commenter noted that they are unaware of any commercially
viable seam sealer products that are water-based or high solid
products. The commenter argued that exempting flooring seam
sealers would have no discernible adverse impact on EPA's
objective of reducing VOC emissions from consumer products
because the total amount of seam sealers used annually is not
more than 10,000 gallons. The commenter asserted that banning
seam sealers would eliminate a product that performs a crucial
and unique function during the installation of sheet vinyl
flooring. The commenter requested that seam sealers used to
join and/or fill the seam between two adjoining pieces of
sheet vinyl flooring either be exempt from the rule or subject
to a separate VOC content limit of 90 percent.
Response: The commenter's interpretation of the rule is
correct. Flooring seam sealers are an adhesive and would fall
under the household adhesives category. Seam sealers consist
of an emulsion of the wear layer of sheet flooring dissolved
in solvent that fuses the adjoining edges of the flooring and,
therefore, must be formulated with a solvent that is
compatible with the sheet flooring. A high solvent content
allows these products to effectively fuse the adjoining edges,
which would not be possible with reduced VOC content.
Furthermore, non-VOC solvents (e.g., acetone) may not be
compatible with the sheet flooring, thereby making product
reformulation impossible. The EPA's intent is not to ban or
eliminate any crucial products and the Agency believes the VOC
emissions reduction obtained from flooring seam sealers would
be minimal. Thus, EPA considers exemption of flooring seam
sealers to be BAG because there is no available control
measure. As a result, EPA has added an exemption for flooring
seam sealers to the final rule. This action is consistent
with exemptions for other specialty products used nationally
in small total annual volumes.
Comment: One commenter (IV-D-18) requested that EPA
include an exemption for certain cleaning products, such as
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engine degreasers, that are recycled and reused. The
commenter stated that the applicability section of the
proposed rule does not exempt VOC-containing products that are
used in automotive parts cleaning operations where the used
solvents are collected and recycled for reuse. The commenter
stated that it believes that EPA did not intend to regulate
products that are recycled after their use. The commenter
suggested that the following statement be incorporated into
the exclusions in § 59.201(d): "Any product that is not used
up during its intended application and will be subsequently
collected for recycling or other appropriate management
method."
Response: Automotive parts cleaners that use bulk
solvents, such as dip tanks, are not covered under the engine
degreaser category of the consumer products rule. Automotive
parts washers and the solvents used in them were among the 105
product categories that the EPA evaluated and scored based on
the section 183(e) criteria. Because of their low score,
parts washers and the solvents used in them did not rank high
enough to warrant regulation under section 183(e). Therefore,
the commenter's suggested exclusion is not necessary and has
not been added to the rule.
Comment: One commenter (IV-D-54) supported the exemption
for fragrances as stated in the proposed rule:
"Fragrances incorporated into a consumer product up
to a combined level of 2 weight-percent shall not be
included in the weight-percent volatile organic
compound calculation."
Response: The EPA has retained in the final rule the
exemption for fragrance materials up to a combined level of
2 weight-percent from inclusion in the VOC content
calculation.
Comment: One commenter (IV-D-55) recommended the
addition of a specific exemption in § 59.201(d) for nonaerosol
fabric moth protection products as follows:
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"(9) The requirements of § 59.203(a) shall not apply
to non-aerosol moth proofing products that are
principally for the protection of fabric from damage
by moths and other fabric pests in adult, juvenile,
or larval forms."
The commenter (IV-D-55) stated that this exemption is
necessary so that consumers may have access to non-aerosol
moth proofing products that do not use PDCB or naphthalene as
the active ingredient.
Response: The EPA determined that the PDCB and
naphthalene products could not be reformulated and still be an
effective moth repellent. As a result, EPA added an exemption
for these products. Because the nonaerosol fabric moth
proofing products are expected to function the same as PDCB or
naphthalene moth protection, EPA determined that an exemption
granted for these products would be consistent with the
exemptions granted for the PDCB and naphthalene products.
Comment: One commenter (IV-D-52) requested that EPA
eliminate conflicts that arise when a product is used by both
household consumers and industrial plants. The commenter
requested establishing one 75 percent VOC limit that applies
to all uses of aerosol adhesives including industrial,
institutional, and household uses. If EPA is concerned about
its authority to impose a 75 percent limit on industrial use,
the commenter requested that EPA expand the 75 percent VOC
limit to cover institutional as well as household uses (i.e.,
every use except those uses in which aerosol adhesives are
incorporated into a product as part of manufacturing or
processing). The commenter stated that regulations that vary
depending on the end use place retail clerks in the untenable
position of monitoring which products can be sold to household
consumers and which can be sold to industrial and
institutional users. The commenter stated that in one case a
retailer returned products to the manufacturer and refused to
sell them because of the confusing requirements.
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Response: The EPA would like to clarify that industrial
products are not regulated by the consumer products rule.
Thus, the commenter's concern will not arise. Examples of
industrial adhesives not subject to the rule include, but are
not limited to, adhesives used in screen printing, platen
adhesives in fabric printing and dyeing, and adhesives used in
the manufacture of wood products, packaging, shoes,
automobiles, tires, etc.
Comment: One commenter (IV-D-30) requested that EPA
clarify that only antiperspirants and deodorants for the human
axilla (the underarm) are regulated and that footcare
antiperspirants and deodorants are not regulated under the
consumer products rule. The commenter also requested that in
table 2 of the proposed rule the adjective "underarm" be used
as a descriptor for antiperspirants and deodorants.
Response: The EPA has added the word "underarm" as an
adjective to table 2 of the final rule. This description will
clarify any confusion with antiperspirants and deodorants used
for other areas of the body. Other antiperspirants and
deodorants such as footcare products and feminine hygiene
products are significantly different than the underarm
products. These other antiperspirants and deodorants were
among the 105 product categories evaluated under the
section 183(e) criteria, but did not rank high enough to be
listed for regulation and, therefore, are not covered under
the consumer products rule.
Comment: One commenter (IV-D-60) recommended that EPA
consider amending its proposed regulation to limit the
sell-through period for noncomplying products to 18 months.
The commenter stated that limiting the sell-through period for
noncomplying products results in greater emissions reductions
because it discourages stockpiling of noncomplying products
for sale after the effective date of a standard. The
commenter believes that the 18-month period is more than
adequate for the normal movement of inventory.
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Response: The final rule retains the unlimited sell-
through period and requires that products manufactured on or
after the compliance date do not exceed the VOC limits in the
rule. Given the current "just in time" inventory practices,
EPA believes that companies will not stockpile enough products
to warrant amending the rule to state a specific sell-through
period. The EPA also believes that most companies lack
sufficient storage space and will not invest in extra
warehouse space just to stockpile noncomplying products.
Comment: One commenter (IV-D-34) requested that EPA
clarify that the vapor pressure for hydrocarbon ingredients
that are typically sold as blends will be determined in
accordance with standard industry practice and will not be
required on a speciated basis. The commenter stated that with
few exceptions, the hydrocarbon solvents used in consumer
products are complex mixtures of many different compounds,
supplied on a specification basis. The commenter noted that
suppliers provide their customers with information about the
vapor pressure of the product being supplied (i.e., the
hydrocarbon blend) and not the individual constituents of the
blend. The commenter stated that it would be costly and
difficult to conduct the analysis that would be necessary to
identify the concentration of each component in each blend and
to supply vapor pressure data for each such component.
Response: The EPA will not require producers to provide
information about the vapor pressure of each component of a
complex mixture. The EPA believes that the most important
information is the vapor pressure of the hydrocarbon blend not
the vapor pressure of each component. As a result, EPA has
added language to § 59.203(j) which now reads:
"For hydrocarbon solvents that are complex mixtures of
many different compounds and that are supplied on a
specification basis for use in a consumer product, the
vapor pressure of the hydrocarbon blend may be used to
demonstrate compliance with the VOC content limits of
this section. Identification of the concentration and
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vapor pressure for each such component in the blend is
not required for compliance with this subpart."
Comment: One commenter (IV-D-34) requested that EPA
clarify that there is not a specific test method for measuring
vapor pressure. The commenter suggested that the final rule
state explicitly that there is no required test method that
regulated entities must use for measuring vapor pressure and
that a consumer product manufacturer may use the vapor
pressure information provided by the chemical producer as long
as the producer uses a method that is generally accepted by
the scientific community. The commenter also suggested that
the final rule state that if in the future EPA wishes to use a
specified method to measure vapor pressure for compliance
determinations (or otherwise), it will first provide notice to
the affected industries and provide an opportunity for public
comment.
Response: Since a specific EPA test method has not been
established for measuring vapor pressure, consumer product
manufacturers may use the vapor pressure information provided
by the chemical supplier as long as the supplier uses a method
that is generally accepted by the scientific community. The
final rule has been revised to reflect this change.
2.2.2 Definitions
Comment: Two commenters (IV-D-14, IV-D-26) requested
clarifying changes to several definitions: aerosol cooking
spray, carburetor and choke cleaner, double-phase aerosol air
freshener, general purpose cleaner, household adhesive, nail
polish remover, pump spray, and wax.
Response: The EPA has incorporated these changes where
it determined that the changes were necessary to clarify the
definitions. The EPA has revised the following definitions to
clarify their meaning in the final rule:
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Aerosol cooking sprav means any aerosol product designed
either to reduce sticking on cooking and baking surfaces
or to be directly applied on food for the purpose of
reducing sticking on cooking and baking surfaces, or
both.
Carburetor and choke cleaner means a product designed to
remove dirt and other contaminants from a carburetor or
choke. "Carburetor and choke cleaner" does not include
products designed to be introduced directly into the fuel
lines or fuel storage tank prior to introduction into the
carburetor, or solvent use regulated under
40 CFR part 63, subpart C (Halogenated solvent NESHAP)
General purpose cleaner means a product designed for
general all-purpose cleaning, in contrast to cleaning
products designed to clean specific substrates in certain
situations. "General purpose cleaner" includes products
designed for general floor cleaning, kitchen or counter
top cleaning, and cleaners designed to be used on a
variety of hard surfaces.
Household adhesive means any household product that is
used to bond one surface to another by attachment.
"Household adhesive" does not include products used on
humans or animals, adhesive tape, contact paper,
wallpaper, shelf liners, or any other product with an
adhesive incorporated onto or in an inert substrate.
Nail polish remover means a product designed to remove
nail polish or coatings from fingernails or toenails.
Pump sprav means a packaging system in which the product
ingredients are expelled only while a pumping action is
applied to a button, trigger, or other actuator. Pump
spray product ingredients are not under pressure.
Wax means an organic mixture or compound with low melting
point and high molecular weight, which is solid at room
temperature. Waxes are generally similar in composition
to fats and oils except that they contain no glycerides.
"Wax" includes, but is not limited to, substances such as
carnauba wax, lanolin, and beeswax derived from the
secretions of plants and animals; substances of a mineral
origin such as ozocerite, montan, and paraffin; and
synthetic substances such as chlorinated naphthalenes and
ethylenic polymers.
Comment: One commenter (IV-D-26) requested that EPA
modify the definition of "aerosol product" to read as follows:
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Aerosol product means a consumer product
characterized by a pressurized spray system that
dispenses product ingredients in aerosol form by
means of a propellant (i.e., a liquefied or
compressed gas that is used in whole or in part,
such as a cosolvent, to expel a liquid or any other
material from the same self-pressurized container or
from a separate container) or mechanically induced
force. "Aerosol product" does not include pump
sprays.
The commenter stated that the definition of "aerosol product"
in the proposed rule is too broad because it has no size
limit, is not restricted to consumer products, and does not
say that the product must be dispensed in aerosol form rather
than as a liquid or gas. The commenter suggested that a rail
car full of refrigerant, the "utility nitrogen" system at a
chemical manufacturing plant, and a drum pump could all be
classified as aerosol products under the proposed definition.
Response: The EPA has added the commenter's suggested
language "in aerosol form" to the definition of aerosol
product. These clarifying changes exclude products dispensed
by liquid or gas which are not intended to be covered by the
final rule. The EPA has determined that the word "consumer"
is not needed in the definition since the definition is
describing a type of consumer product within the consumer
products rule.
Comment: One commenter (IV-D-28) recommended that the
definition of "agricultural use" specifically mention uses
such as public gardens, parks, lawns, and grounds intended for
aesthetic purposes or climatic modifications.
Response: Pesticides used in areas such as public
gardens, parks, lawns, and grounds are included in the
"institutional use" definition covered by this rule.
Therefore, EPA has not revised the definition of agricultural
use.
Comment: One commenter (IV-D-13) stated that the
definition of "air freshener" needs clarification. The
commenter asserted that institutional and industrial
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disinfectants, if they are expressly represented for use as
air fresheners, should not be excluded from the definition of
"air freshener." The commenter asserted that the definition
creates an exclusion that will result in higher VOC emissions.
Response: Generally, the consumer products rule does not
apply to disinfectants. The EPA determined that the
"disinfectants" product category did not rank high enough
based on application of the section 183(e) criteria to be
listed for regulation. However, EPA believes that household
spray disinfectants that are expressly represented for use as
air fresheners should be covered by the rule, because they
could be used as air fresheners. Accordingly, the definition
of "air freshener" in the proposed rule allows for
applicability of the rule to these products. The EPA did not
intend for the rule to apply to spray disinfectants used only
in institutional and industrial applications. The EPA has
concluded that institutional and industrial facilities may
require stronger air fresheners than products designed for
household use; therefore, EPA did not revise the definition as
suggested by the commenter.
Comment: One commenter (IV-D-18) recommended that EPA
delete that portion of the definition for "engine degreaser
and carburetor and choke cleaner" that provides that any
solvent used for these purposes and that is subject to
40 CFR part 60, subpart JJ (NSPS for cold cleaning machine
operations) is not subject to this consumer and commercial
products rule. The commenter noted that since the Agency has
not yet promulgated this subpart JJ, this part of the
definition should be deleted. The commenter also recommended
that an exclusion for cold cleaning operations that are
subject to reasonably available control technology (RACT)
operations be included in the engine degreaser and carburetor
and choke cleaner definitions.
Another commenter (IV-D-26) suggested that EPA clarify
the definition of "engine degreaser" by either eliminating or
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modifying the phrase "other mechanical parts." The commenter
stated that "other mechanical parts" is too broad because it
could include carburetors and chokes, it is not limited to
automotive parts or engine parts, and it could include large
industrial degreasing machines.
Response: The EPA removed the reference to
40 CFR part 60, subpart JJ. The Agency has not included an
exclusion for cold cleaning operations that are subject to
RACT operations into the final rule, because EPA does not
intend for this rule to apply to large degreasing systems.
The EPA believes that the term "other mechanical parts" is
necessary because these products are routinely used to clean
other mechanical parts, not just engines.
Comment: One commenter (IV-D-28) requested that EPA
clarify the definition of "consumer" and "consumer product"
either to include or exclude products purchased by a person
for commercial application. As examples, the commenter
suggested products that a professional lawn care company or a
professional pest control applicator might purchase for their
use in a commercial context. Another commenter (IV-D-26)
requested that EPA remove a perceived inconsistency in the
definition of "consumer product" by discarding the first
sentence and rearranging the second sentence as follows:
Consumer product means, for the purposes of this
subpart, any product listed in tables 1 or 2 of
§ 59.203.
The commenter stated that the first clause of the proposed
definition was inconsistent with the second clause, thereby
creating confusion by the apparent inclusion of products used
in an institutional context and any product whose destruction
could result in releases of VOC emissions.
Response: The EPA intends products that are designed for
use for commercial or institutional purposes be covered by
this rule. If a product is used by a professional lawn care
company for use on a private or institutional lawn that
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product is covered by this rule. The rule does not, however,
include products that are incorporated into or used
exclusively in the manufacture or construction of goods or
commodities.
The EPA believes the definition of consumer product is
appropriate. The inclusion of institutional products is
necessary to cover all of the products regulated under this
rule.
Comment: Three commenters (IV-D-26, IV-D-28, IV-D-55)
requested clarification of the definition of "crawling bug
insecticide" and one commenter (IV-D-26) requested
clarification of the definition of "flea and tick
insecticide." One commenter (IV-D-28) asked EPA if the
definition of "crawling bug insecticide" applied only to
products for use on household crawling arthropods, rather than
those in nonhousehold contexts.
One commenter (IV-D-26) suggested that EPA clarify the
definition of "crawling bug insecticide," "flea and tick
insecticide," and "flying bug insecticide," by inserting
"domesticated" in front of animals so that the definition will
exclude products "designed to be applied directly to humans or
domesticated animals." The commenter asserted that insects
are "animals" so that excluding products designed to be used
on animals would also exclude products designed to be used on
crawling insects. Another commenter (IV-D-55) recommended
that the definition be amended by the addition of the
following parenthetical statement "(but not house dust mites)"
because the control of house dust mites requires technology
that is significantly different from the ant and roach sprays
that are the core products of the crawling bug insecticide
category. This commenter stated that the recommended
modification will not impact emissions reductions anticipated
under the regulation because there are virtually no crawling
bug insecticide products being marketed today making claims
against house dust mites.
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Response; The definition of "crawling bug insecticide"
has been changed in the final rule to reflect the
clarifications suggested by the commenters. The EPA has
deleted the word "household" before "crawling arthropods" so
that the definition cannot be misinterpreted to mean that
products used in other areas beside the household are exempted
from the standard. The EPA also changed the definition to
clarify that house dust mites are not included as one of the
insects for which crawling bug insecticides are designed. The
EPA determined that the clarification in the definitions of
"crawling bug insecticide," "flea and tick insecticide," and
"flying bug insecticide," to explain that the insecticides are
not for use on "domesticated" animals is not necessary. The
EPA believes that the common usage of the word "animals" does
not include insects or arthropods and therefore does not need
to clarify that insecticides are not for use on "domesticated"
animals.
Comment: One commenter (IV-D-26) suggested that EPA
clarify the definition of "distributor." The proposed
definition excluded manufacturers which may be inappropriate
as some manufacturers act as their own distributors. If EPA
categorically excludes manufacturers from being considered as
distributors, these "dual role" situations may not be
appropriately addressed. Two commenters (IV-D-10, IV-D-52)
recommended that EPA revise the definition of "manufacturer"
to exclude distributors. The commenters stated that they have
hundreds of independent distributors that are not retailers
who would be unable to comply with code-dating requirements,
test methods, or recordkeeping and reporting requirements.
They do not have access to the manufacturer's information on
product formulations or VOC contents. One commenter (IV-D-52)
stated that it would be impractical for the manufacturer to
provide this information to its independent distributors and
could compromise the confidentiality of the manufacturer's
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business information. The commenter recommended the following
definition:
Manufacturer means any person who imports,
manufactures, assembles, produces, packages,
repackages, or relabels a consumer product.
Response: The EPA considered these concerns and
concluded that it would be more appropriate to revise the rule
to clarify that the regulated entity is the manufacturer and
the distributor if the distributor's name is on the label.
The EPA did not revise the definition of distributor or
manufacturer as suggested by the commenters. The EPA intends
the definitions in the final rule to indicate that a
manufacturer can be a distributor, that a distributor is not
necessarily a manufacturer, and that either can be the
regulated entity.
Independent distributors may not be required to comply
with the code-dating, test methods, or recordkeeping and
reporting requirements if they are not considered the
regulated entity. According to the definition stated in the
rule the regulated entity is the manufacturer, distributor or
importer whose label is on the product. The regulated entity
is the certified official with the responsibility of meeting
the recordkeeping and reporting, test methods, and code-dating
requirements. This official is required to have the records
or designate someone to maintain records and provide them to
the administrator upon request.
Comment: One commenter (IV-D-55) requested that EPA
remove the word "moths" from the definition of "flying bug
insecticide" in § 59.202 because these products are formulated
principally against flies, mosquitoes, and gnats. This
commenter suggested that the elimination of "moth" would have
no impact on VOC emissions reductions generated under this
regulation because all aerosol flying bug insecticides,
including any which may make claims against adult flying
moths, will continue to be regulated.
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Response: The EPA changed the definition of "flying bug
insecticide" to exclude moths, since most flying bug
insecticides are for use on flies, mosquitoes and gnats
exclusively.
Comment: One commenter (IV-D-25) suggested that EPA
expand the definition of "insecticide fogger" to explain that
foggers can kill a variety of pests. The commenter suggested
that a clarification was necessary to explain that fogger
products are subject to the VOC limits for "foggers" as
opposed to the "other insecticide" categories in the
regulation. The commenter suggested EPA expand the definition
to read: "foggers may target a variety of pests, including,
but not limited to, fleas and ticks; crawling insects; lawn
and garden pests; and/or flying insects."
Response: The EPA clarified the definition of
"insecticide fogger" to explain that fogger products are
subject to the VOC limits for "foggers" and not "other
insecticide" category. The final definition includes the
above clarification sentence suggested by the commenter.
Comment: One commenter (IV-D-26) suggested that EPA
clarify the definitions of "household product" and "household
use." The commenter stated that if a professional electrician
brings an expensive, sophisticated testing device into a home
and uses it once, then takes it elsewhere the device should
not be classified as a household product or in household use.
The commenter requested EPA to clarify that these definitions
only apply to products used by the people who live in the
home, for personal or household (non-commercial) purposes.
Response: The EPA intended the definition of household
product and household use to include products used not only by
private individuals but also by commercial applicators in a
home or its immediate environment. Since the rule specifies
VOC limits for defined categories of household products, the
situation described by the commenter cannot arise.
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Comment: One commenter (IV-D-28) requested that EPA
clarify the definition of "insecticide." The proposed
definition excluded products for structural pest control. The
structural pest control definition includes any application of
pesticides that require a license under Federal law. Products
that require a license under Federal law are classified as
"restricted use." The commenter inquired whether products
that are for structural pest control that are not restricted
use are included in the insecticide definition.
Response: The "structural pest control" definition was
removed from the final rule because EPA believes that the
information in the "structural pest control" definition is
redundant with the definition of "restricted materials."
Removal of the "structural pest control" definition will help
eliminate the confusion the coinmenter encountered with the
"insecticide" definition. If the materials are classified as
"restricted use" pesticides by the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA) (FIFRA,
7 U.S.C. 136-136y), then they are not included in the
definition of insecticides under this rule. As a result, the
restricted materials would not be regulated by the consumer
products rule.
Comment: One commenter (IV-D-28) requested that EPA
clarify if products used on commercial lawns or recreational
areas are included in the definition of "lawn and garden
insecticide." Also, the commenter stated that it is unclear
if the intent of the definition of lawn and garden insecticide
was to cover only products applied by homeowners or products
applied to home lawns, including those applied by lawn care
companies.
Response: The EPA does not intend the definition of
"Lawn and Garden Insecticide" to include products used on
commercial lawns or recreational areas. Any consumer products
that are used for "agricultural use" or used in an industrial
process to produce a product or used for nonhousehold uses are
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not covered by this rule. All products applied by the
homeowner or a professional lawn care company to a household
lawn are included in the "lawn and garden insecticide"
definition.
Comment: One commenter (IV-D-28) recommended that the
Agency clarify the definition of "structural pest control" to
describe more clearly the scope of the definition. The
commenter recommended that if the intent of the definition is
to include all professional structural pest control, then it
should be revised to state: "...applications of pesticides by
commercial pest control operators or certified applicators."
Response: The EPA decided to remove the "structural pest
control" definition because it believes that the information
in the "structural pest control" definition is redundant with
the definition of "restricted materials" definition. The
"restricted materials" definition applies to pesticides that
are for restricted use under section 3(d) of FIFRA
(FIFRA, 7 U.S.C. 136-136y). The FIFRA regulations state that
restricted use materials can only be applied by certified
applicators. As a result, EPA has determined that the
"structural pest control" definition is unnecessary and has
removed it from the final rule.
Comment: Two commenters (IV-D-26, IV-D-28) recommended
that EPA clarify the definitions of "institutional product"
and "institutional use." The commenters asserted that the
definition of uses listed under "institutional product" are
much broader than those specific sites listed under
"institutional use." The commenters suggested that an
institutional product should be one intended for institutional
uses.
Response: The EPA has added the list of "establishments"
from the "institutional product" definition to the
"institutional use" definition to be consistent.
Comment: One commenter (IV-D-26) suggested that EPA
eliminate the definition of "institutional product" from the
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rule and define "institutional product" in the "general
provisions" for part 59 or revise the last sentence of the
definition to read as follows:
Institutional product does not include household products
and products that are incorporated into or used
exclusively in the manufacture or construction of the
goods or commodities that are produced by the
establishment.
The commenter argued that any product used at a chemical
manufacturing complex would be an "institutional product"
which is probably inappropriate because materials used in
manufacturing processes are generally called "industrial."
Response: The EPA has clarified that the definition of
"institutional product" does not include those products that
are used exclusively in the manufacture of the goods or
commodities that are produced by the establishment. For
example, products such as glass cleaners or floor waxes which
are used at a plywood manufacturing facility would be subject
to the rule, whereas adhesives used to manufacture the plywood
are not covered by this rule.
Comment: Several commenters (IV-D-14, IV-D-17, IV-D-25,
IV-D-33, IV-D-55) requested that EPA add a definition for
"laundry prewash" to § 59.202. The commenters suggested the
following language for the definition:
Laundry Prewash means a product that is designed for
application to a fabric prior to laundering and that
supplements and contributes to the effectiveness of
laundry detergents and/or provides specialized
performance.
Response: The EPA included laundry prewash as a category
of consumer product to be regulated but inadvertently left out
a definition. The EPA has included the definition of "laundry
prewash" recommended by the commenter in § 59.202. The EPA
considered the definition recommended by the commenter and
found it to be reasonable and consistent with existing State
rules.
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Comment: One commenter (IV-D-28) requested that EPA
clarify the definition of "nonagricultural pesticide" to
exclude those substances or mixtures of substances subject to
FIFRA designed for agricultural use.
Response: The EPA believes that nonagricultural
pesticides should not include any substances that EPA does not
consider to be a pesticide under the FIFRA (FIFRA,
7 U.S.C. 136-136y). The exclusion was added to the
nonagricultural pesticide definition.
Comment: One commenter (IV-D-26) suggested that EPA use
the following definition of "product category:
Product category means the applicable category which
best describes the product as listed in tables 1 or
2 of this subpart.
The commenter stated that the product name may not always
appear on the principal display panel in exactly the same
words that EPA uses in this rule. Therefore, the commenter
argued that including the product category listed on the
product's principal display panel in the definition of
"product category" may not be helpful.
Response: The EPA believes that the last part of the
definition after subpart "...and which appears on the
product's principal display panel." should not be deleted.
The Agency has concluded that the product's principal display
panel often describes in enough detail which product category
listed, in tables 1 or 2, applies to the product. The EPA
does not believe that any confusion will result in identifying
into which product category a product falls.
Comment: Several commenters (IV-D-19, IV-D-26, IV-D-33,
IV-D-41, IV-D-47, IV-D-58, IV-D-59) disagreed with the
proposed definition of "regulated entity." Five of these
commenters (IV-D-19, IV-D-33, IV-D-47, IV-D-58, IV-D-59)
suggested that the definition as it appears in § 59.201(c) is
more consistent with the intent of the proposal, and suggested
that the definition in § 59.202 be modified to match
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§ 59.201(c). Two commenters (IV-D-33, IV-D-59) went so far as
to suggest that the term "regulated entity" be deleted from
the definitions if it is not consistent. Other commenters
(IV-D-26, IV-D-41) recommended that the definition be modified
to exclude processors or distributors. Commenter (IV-D-41)
stated that distributors should not be subject to these
standards because coverage of distributors does nothing to
further the purpose of the VOC limitations and places an
additional regulatory burden on them although they are less
capable of controlling the VOC content than manufacturers or
importers.
Response: It was EPA's intent to regulate only the party
with ultimate control over the product's compliance with the
VOC content limits. In order to clarify this intent, the
definition of regulated entity was revised to read as follows:
"Regulated entity means the manufacturer, distributor, or
importer named on the label of any consumer product
offered for sale or distribution in the United States and
subject to this subpart. Distributors whose names do
not appear on the label are not regulated entities. If
the distributor of the product is named on the label, the
distributor is also a regulated entity."
The revised definition responds to the commenters'
concerns by specifying that the regulated entity is the party
named on the label.
For example, a product is manufactured by Company A,
distributed by a retail chain, Company B, and carries the
Company B label. Company A may or may not be listed on the
label. In this case, Company B is a regulated entity,
regardless of whether Company A is named on the label, because
the product is manufactured for Company B who is named on the
label.
In another case, a product is manufactured by Company A,
and carries the Company A label. It is distributed to
Company B, a retail chain. The name of the retail chain is
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not listed on the label. Therefore, Company A is the
regulated entity.
In all cases, distributors who are not named on the label
are not regulated entities under the final rule.
Comment: One commenter (IV-D-26) suggested that EPA
clarify the definition of "structural waterproof adhesive" by
stating that the adhesive is intended for use on a structure.
The commenter stated that otherwise any adhesive meeting
certain technical specifications would be a structural
waterproof adhesive, whether or not it is used for structural
purposes.
Response: The EPA does not believe it is appropriate to
add the word structure to the definition because the meaning
could be interpreted as adhesive used only on a structure when
the adhesive could be used on other items (e.g., furniture,
etc.).
Comment: One commenter (IV-D-26) supported EPA's use of
the definition of "VOC" or "volatile organic compound" from
40 CFR part 51 because it is specially tailored to focus on
compounds that actually contribute to the formation of
tropospheric ozone through chemical reactions in the
atmosphere and to exclude substances that are not of
regulatory concern. By using the part 51 definition, the
commenter asserted that the Agency has chosen the proper
definition and thus the proper regulatory focus because this
approach follows the statutory command for EPA to regulate
those consumer products that have the potential to contribute
to nonattainment of the national ambient air quality standards
(NAAQS) for ozone.
Response: The EPA agrees, and therefore has maintained
the use of the "VOC" definition from 40 CFR part 51 to focus
on compounds that contribute to the formation of tropospheric
ozone.
2.2.3 Standards for Consumer Products
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Comment: Two coiranenters (IV-D-46, IV-D-57) commented on
the inclusion of emissions trading under the proposed Open
Market Trading Rule (OMTR) or Guidance Document as an option
for compliance with the proposed commercial and consumer
product regulation. One commenter (IV-D-57) stated that open
market trading could assure product quality while providing
flexibility, cost savings, incentives for innovation, and
increased environmental performance to both consumers and
manufacturers of consumer products. The commenter asserted
that open market trading could also increase the performance
and effectiveness of the consumer products rule in achieving
meaningful ozone reduction. The commenter further argued that
open market compliance options assure that smaller
manufacturers or marketers are not disadvantaged or put out of
business by the implementation of the regulations, thus
reducing competition and increasing consumer costs.
One commenter (IV-D-46) stated that consumer product
credit trading is not appropriate for this regulation because
market incentives, including allowance for trading of emission
credits from consumer products, have not been adequately
considered in this rulemaking action and consumer product
credit trading is extremely controversial. This commenter
noted that allowing the trading of emission credits can put
some companies at an extreme competitive disadvantage because
of the highly competitive nature of the consumer product
market and the wide diversity of resources and product mix
between consumer manufacturers and distributors.
Response: The consumer products rule will regulate
products that typically are distributed nationally. The open
market trading guidance (proposed August 25, 1995, 60 FR
44290) is for State-developed regional trading programs
addressing the generation and use of discrete emission
reductions within the non-attainment areas covered by the
program. Additionally, as noted by commenter IV-D-46, EPA has
neither fully considered nor proposed such market incentives
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as part of this consumer products rule. The EPA believes it
would be more appropriate to consider any market incentives
for the consumer products rule separately from the open market
trading guidance.
Comment: Three commenters (IV-D-24, IV-D-55, IV-D-60)
requested that EPA adopt an Alternative Control Plan (ACP)
similar to CARB's ACP. An ACP allows manufacturers that are
unable to meet a specific VOC for one product to balance the
emission from their non-compliant product with the reduction
benefit from an over-compliant product. One commenter
(IV-D-55) suggested that an ACP is essential for sound
consumer product regulation because it provides the ability to
reduce VOC emissions while retaining the flexibility of
continuing to market a regulated product with a formulation
that has superior performance. The commenter further stated
that an ACP would provide an economic incentive to develop
product technologies that are lower in VOC than the table of
standards. The commenter suggested that EPA add an ACP
provision to the national consumer products rule at the first
opportunity, without delaying the adoption of the national
rule.
Response: The EPA has not adopted an ACP in the final
rule. The EPA is considering developing an ACP as a separate
regulatory initiative. If warranted, EPA will develop an ACP
following promulgation of the consumer products rule.
Comment: Four commenters (IV-D-26, IV-D-38, IV-D-39,
IV-D-52) provided comments in support of a later compliance
date. One commenter (IV-D-38) suggested that EPA should
extend the proposed compliance date from September 1, 1996 to
September 1, 1997. The commenter stated that the 5 month
period between publication of the proposed regulation and the
compliance date of September 1, 1996 would not allow
sufficient time to identify the most cost-effective technology
without cost burdens. Three commenters (IV-D-26, IV-D-39,
IV-D-52) requested additional time to comply with the proposed
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rule because they contended that the deadlines were
unachievable for the industry. One coitunenter (IV-D-26)
explained that their company would require 6 months to achieve
compliance, a second commenter (IV-D-38) requested 12 months,
while another commenter (IV-D-39) suggested 2 to 3 years
following publication of the final rule to achieve compliance.
One commenter (IV-D-26) also requested a process to
obtain an extension in cases where regulated entities cannot
comply due to special circumstances that can occur with
companies that are smaller and regionally-focused. Another
commenter (IV-D-52) asked EPA to include at least a 3- or
6-month delay in the effective date of the final rule,
whichever is sufficient to allow companies to apply for and
receive variances from the requirements of the proposed
consumer products rule.
Another commenter (IV-D-26) requested that EPA more
clearly explain the different compliance dates. The commenter
suggested that different compliance dates can be confusing
unless EPA provides clearer explanations. The commenter
suggested that all the compliance dates appear in the same
section of the rule. Alternatively, the commenter requested
that EPA summarize the various dates in a table in the rule so
that regulated parties are less likely to miss or confuse
compliance dates.
Response: Since proposal, EPA has extended the date of
promulgation and the compliance date. The final rule gives
regulated entities over 2 years from proposal and 3 months
from promulgation to comply with the requirements of the final
consumer products rule. The EPA believes that this schedule
provides the majority of the regulated entities adequate time
to come into compliance. Furthermore, regulated entities that
cannot achieve compliance by the compliance date may request a
variance of up to 5 years under §59.206.
The final rule more clearly states the different
compliance dates for consumer products. The EPA has
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determined that a table is not necessary to explain the
compliance dates.
Comment: Eleven commenters (IV-D-01, IV-D-13, IV-D-26,
IV-D-42, IV-D-46, IV-D-48 to 51, IV-D-53) commented on the
stringency of the VOC limits of the proposed rule. Eight of
the commenters (IV-D-26, IV-D-42, IV-D-46, IV-D-48 to 51,
IV-D-53) supported the proposed VOC content limits. One
commenter (IV-D-26) supported the proposed VOC content limits
because they are in agreement with existing State and consumer
product regulations. One commenter (IV-D-01) recommended that
EPA regulate to the maximum levels possible wherever the
technology exists to substitute or reduce the VOC content of
consumer products. Another commenter (IV-D-13) stated that
EPA's proposed rule should be more stringent and that the
proposed limits are set at levels which have been met in four
States for several years. The commenter did believe that the
proposed VOC content limits represent the level of best
available controls (BAC). In contrast, another commenter (IV-
D-35) claimed that EPA did not propose a rule that is based on
the best available technology because neither reformulation
nor substitution allows for higher quality consumer products
that may have higher VOC contents than allowed by the proposed
rule.
Another commenter (IV-D-60) recommended that EPA consider
including VOC standards that take effect in the future
consistent with those adopted by CARB because many areas of
the country will require additional long term reductions in
VOC to attain or maintain the NAAQS for ozone. Two commenters
(IV-D-23, IV-D-24) recommended that EPA adopt a biannual
routine review policy of any regulatory changes made by CARB
when pertaining to Phase II future VOC limits.
One commenter (IV-D-24) stated that CARB's Technical
Support Documents indicated that current CARB VOC limits for
consumer products are technologically feasible and achievable.
The commenter also noted that CARB has identified several
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alternative technologies available for new products to meet
the specified limits. The commenter believes that EPA's
limits should be at CARB's proven limits.
One commenter (IV-D-46) stated its belief that the
proposed rule was technologically feasible because it
incorporated elements of State VOC rules that have already
been demonstrated. The commenter stated its belief that the
proposed limits are economically feasible because many
companies have already reformulated their products to meet the
various State standards so the only additional economic cost
would be to produce the requisite supply of a lower-VOC
product to market nationally. This commenter stated that
further reformulation of these product categories to meet
lower VOC limits would come at exponentially higher costs and
in some cases would require entirely new technology.
Response: The VOC content limits in the proposed rule
represent what EPA has determined to be the level of BAC in
accordance with the considerations set forth in
section 183(e)of the Act. The EPA identified BAC based
primarily upon EPA's consumer products survey, an analysis of
existing State rules for consumer products, and additional
information gathered by the Agency during the study of the
consumer and commercial products industry. The EPA believes
that the limit proposed for each product category is currently
demonstrated due to availability of complying products already
on the market, and is consistent with most of limits currently
enforced by States that have consumer products rules.
For some product categories, EPA's analysis of the
database developed from the consumer products survey suggested
that lower VOC content limits might be technologically
feasible. However, EPA has chosen to propose standards
consistent with most of the currently enforceable limits set
by States on the basis of consideration of all factors noted
in section 183(e)(1)(A). The existence of these State
standards, and the fact that some products are already
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complying with these standards, provides stronger evidence
that these levels are achievable for a wide range of product
applications at current levels of product efficacy.
The EPA had to consider that a variety of different
consumer products are used across the country and that
regulating the product categories based upon existing
standards from one region would not necessarily be appropriate
for a national rule. As a result EPA has decided not to
include future effective VOC standards consistent with those
of CARB into the rule at this time. A periodic review of
future rules is likewise not provided for in section 183(e) of
the Act at this time.
The EPA concurs that the California Phase II limits are
lower than the limits in the consumer products rule; however,
California's Phase II limits take effect in 1998 and EPA does
not have sufficient information to conclude that these lower
limits can be applied nationwide. Therefore, the Act does not
allow application of these limits.
The EPA recognizes that setting lower VOC content limits
could have potential adverse effects on consumer choices and
could eliminate certain product applications and efficacy
levels from the market. The EPA does not have evidence or
information to indicate that such impacts are warranted to
achieve an additional level of emission reductions. The EPA
notes that it has selected the VOC content limits after full
consideration of the factors specified in section 183(e) and
has made a determination that such levels are appropriate
given consideration of these factors. Because the proposed
limits reflect EPA's determination of BAC, EPA has maintained
the limits in the final consumer products rule.
Comment: One commenter (IV-D-35) contended that the VOC
reduction percentage imposed on consumer products by EPA is
arbitrary and biased. The commenter argued that EPA must
determine BAC as defined by statute, not by seeking a specific
percentage reduction.
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Response: The EPA determined the VOC content limits in
this rule based on consideration of BAG as required by the
Act. Percent VOC reduction was not the determinant for the
VOC limits required by the rule. Instead, percentage
reduction was estimated only after BAC VOC limits were
established.
Comment: One commenter (IV-D-33) requested that EPA
include in § 59.203(a) a reference to paragraph (b) as well as
paragraph (d) as exemptions to the compliance with the VOC
levels stated in table 1 of the rule. The commenter
recommended EPA insert the following language: "...except as
provided in paragraphs (b) and (d) of this subsection,
§§ 59.204 and 59.206."
Response: The EPA made the change suggested by the
commenter. The EPA determined that the change clarifies and
explains the type of consumer products that are exempt from
the VOC content limits.
Comment: Two commenters (IV-D-24, IV-D-29) recommended
that EPA revise the proposed standards for several categories
to reflect the more stringent existing emission requirements
of the GARB rule. The commenters requested that the limit for
air fresheners (single phase) change from 70 percent (VOC
limit by percent weight) to 30 percent, for engine degreasers
from 75 percent to 50 percent, for glass cleaners
(non-aerosol) from 8 percent to 6 percent, and the limit for
nail polish removers from 85 percent to 75 percent.
Response: The commenters did not provide enough
information to determine if the recommended 30 percent limit
for air fresheners (single phase) is technically feasible
nationwide. As a result, the limit of 70 percent for air
fresheners (single phase) stated in the rule will remain
unchanged.
Survey and industry reports regarding product efficacy
indicate that engine degreasers with lower VOC contents are
significantly less effective and generally induce consumers
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either: (1) to use greater quantities of product; or (2) to
use substitutes such as kerosene or gasoline. Either of these
actions would negate the benefits of lower VOC content in
engine degreasers. Therefore, EPA determined at proposal that
a VOC content limit of 75 percent was optimal for achieving
VOC emission reductions. The limit of 75 percent for engine
degreasers stated in the final consumer products rule will
remain unchanged.
The EPA and Chemical Specialties Manufacturers
Association (CSMA) data indicate that glass cleaner
(nonaerosol) products with VOC contents lower than 8 percent
do not meet performance requirements for commercial and high
volume users. Liquid and pump spray products with less than
8 percent VOC generally result in use of greater quantities by
consumers. The CSMA presented data at a workshop for the CARB
(July 31, 1990) demonstrating that, for vinegar-based glass
cleaners, a product with a VOC content of 6 percent requires
significantly more product usage than an 8 percent product.
Therefore, EPA has concluded that an limit of 8 percent will
achieve greater emission reductions and represents BAG. The
proposed limit of 8 percent for glass cleaners (nonaerosol)
was unchanged.
The EPA believes a nail polish VOC limit of 75 percent
does not allow for all the applications needed for nail polish
removers. The EPA received data from the Cosmetic, Toiletry,
and Fragrance Association (CTFA) that indicated that a
substantial portion of the market for nail polish removers
includes products that are intended to be used on artificial
nails and do not contain acetone. Acetone has been recently
taken off of EPA's VOC list and as a result some of the nail
polish removers with acetone as a constituent can meet a VOC
limit of 75 percent. The CTFA stated that some nail polish
removers are formulated with ethyl acetate, an ingredient that
meets the definition of a VOC under current EPA regulations.
Acetone cannot be used in such products because acetone-based
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products will destroy the artificial nails. As a result, EPA
has determined that an 85 percent limit for VOC is necessary
for nail polish removers.
2.2.4 Innovative Product Provisions
Comment: Two commenters (IV-D-46, IV-D-55) supported the
innovative product provisions in the consumer products rule
because they believe that it is essential to have a provision
allowing for the development and approval of innovative
products that may have a VOC content above the table of
standards limit but in actual use have VOC emissions that are
lower than similar products which are within the table of
standards limits. One commenter (IV-D-46) strongly supported
giving companies the choice of either submitting premarket
innovative product approval applications with EPA or simply
registering an innovative product instead.
Response: The EPA has maintained the innovative product
provision in the final consumer products rule. A regulated
entity intending to market an innovative product must submit a
written request for the Administrator's written concurrence
that the innovative product meets the requirements of
§ 59.204 (a). The regulated entity may submit the request at
anytime up to the time the innovative product is available for
sale or distribution to consumers.
2.2.5 Code-dating
Comment: One commenter (IV-D-29) offered an alternative
to the current provision in § 59.205 that requires each
consumer product container or package to display the day,
month, and year of manufacture, or a code indicating that
date. The commenter suggested that EPA change § 59.205 to
state that the manufacturer could comply with § 59.205 by
printing on the label that the product complies with the VOC
limits effective after a certain date rather than indicating
the day, month, and year that the product was manufactured.
Response: The EPA did not change the date coding
provisions § 59.205 in the final consumer products rule. The
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EPA requires a date code to be placed on the product in
addition to the recordkeeping and reporting requirements in
order to assure compliance and to aid in enforcement. The
consumer products rule allows products manufactured before the
compliance date to be sold indefinitely. Thus, both compliant
and noncompliant products can be present together on the
shelf. The date code would allow the EPA to determine whether
a particular product on the shelf was subject to the rule
(i.e., whether the product was manufactured on or after the
compliance date). The EPA could then determine whether the
product was in compliance by referring to the record of
ingredients used to produce that particular batch of product.
To determine compliance, EPA must check the formulation of the
batch. Thus, EPA must be able to both determine that the
product was manufactured on or after the compliance date and
trace the product back to the formulation records used in its
production. The EPA believes that the date code accomplishes
these two purposes without imposing additional burdens. The
commenter's approach of labeling the product as being
compliant will not enable EPA to trace the product back to its
particular batch.
2.2.6 Variances
Comment: One commenter (IV-D-34) supported the variance
provision in the final rule. Another commenter (IV-D-13) did
not support the variance provision because the proposed rule
did not represent technology-forcing levels of VOC control and
complying product formulations have been available for many
years.
Response: The EPA has concluded that providing a
variance procedure is appropriate. The Agency will grant a
variance if the applicant demonstrates that compliance with
the rule would result in an economic hardship, and that the
benefit from granting the variance outweighs the public
interest in avoiding any increased emissions or air
contaminants that would result from issuing the variance. The
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EPA recognizes that certain interruptions in the availability
of raw materials and/or manufacturing processes may affect a
manufacturer's ability to comply continuously with the
standards. The EPA anticipates that this variance provision
will help to mitigate potential adverse impacts to small
businesses. Small businesses in the consumer products
industry are likely to have fewer research and development
resources, and therefore, will benefit from the allowed
variance. The EPA further notes that the availability of a
variance procedure should not necessarily be dependent upon
the existence of "technology forcing" VOC limits, but rather
upon the legitimate need for variances under the scenarios
contemplated above.
Comment: One commenter (IV-D-52) requested that EPA
revise the proposed variance section to allow "grandfathering"
for companies that already have received variances from State
agencies regarding similar provisions of State consumer
product rules because the criteria for granting a variance are
the same in State rules as they are in the proposed national
rule. The commenter suggested the variance provision should
allow EPA to issue an automatic Federal variance if a company
applies and shows it already has been issued a variance from
the same standard under a State consumer products rule. The
commenter suggested that such "grandfathering" could be done
for a limited transitional period, such as for at least 1 year
following adoption of a final Federal consumer products rule.
The commenter stated that a grandfathering provision would
avoid substantial duplication of efforts and would recognize
the work that States have done in implementing State consumer
product rules. The commenter suggested that if EPA is
concerned about public notice and opportunity for comment, EPA
could streamline the variance provision by requiring a public
hearing only if a member of the public requests a hearing at
which time EPA could conduct a more detailed review of the
request covered by the previously-issued State variance and
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the manufacturer could submit more information in support of
the variance at that time. The commenter suggested that in
the event that EPA does not allow automatic grandfathering,
companies should be allowed to use the application they
submitted to a State for the application for the variance from
the National consumer products rule.
Response: The EPA criteria for issuing a variance are
not the same as those for all States. Because some States may
have different criteria than the Federal standards, EPA has
determined that automatic "grandfathering" would be
inappropriate. Therefore, EPA has not changed the "Variances"
§ 59.206 to "grandfather" variances already issued by the
states for similar consumer products.
Comment: One commenter (IV-D-52) requested that EPA add
the following provisions in the variance procedures in
§ 59.206 to protect companies from enforcement action pending
a decision on a variance:
Where a person has applied for a variance, no
notices of violation shall be issued during the
period between the date of filing for the variance
and the date of decision by EPA, for violations
covered by the variance application.
The commenter believes it is unnecessary for EPA to consider
possible violations during the variance period, because the
penalties under existing law provide sufficient incentive for
companies to comply before and after the pendency of the
variance application.
Response: While the rule is silent on this issue, EPA
will bear the commenter's concern in mind in reviewing such
applications. It is generally not EPA's practice to take
enforcement action against a source that has filed a variance
request until the Agency has acted upon the request
negatively.
2.2.7 Test Methods
Comment: One commenter (IV-D-33) supported the test
methods provided in the proposed rule. The commenter
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supported basing compliance with these standards on
manufacturing records for all products except charcoal lighter
materials.
Response: The EPA believes using manufacturing records
for all products (except charcoal lighter materials) provides
the most cost-effective and effective means for determining
compliance and hence enforcement.
2.2.8 Charcoal Lighter Material Compliance Testing Protocol
One commenter (IV-D-25) stated that the South Coast Air
Quality Management District (SCAQMD) regulates charcoal
lighter materials and had granted equivalency for some of the
test equipment in § 59.208. The commenter requested several
modifications be made to the rule for the charcoal lighter
material testing protocol to make it consistent with SCAQMD
rule.
The commenter (IV-D-25) requested that certain equipment
be granted equivalency such as: Omega strip recorder with a
Strawberry Tree Data Acquisition System for continuous
recording requirements stated in § 59.208(f)(3)(i), a Davis
DTA 4000 vane anemometer to measure stack velocity, and a
Ratfisch RS55 total hydrocarbon analyzer to measure organic
vapor. The commenter also requested that the span of 70 ppm
methane be changed to 90 ppm methane for the organic vapor
monitor to be consistent with SCAQMD rule.
The commenter (IV-D-25) requested certain SCAQMD test
methods and procedures be considered as equivalent: SCAQMD
25.1 test method for total non-methane hydrocarbon
concentration (TNMHC) to EPA Method 25; baseline emission
testing (using the electronic probe) may be applied to other
test runs provided that the test runs occur within 4 months of
the baseline testing to EPA's requirement of all runs must be
conducted over 3 consecutive days or less; testing for
impregnated charcoal since the lighter material and barbecue
charcoal supplies both the lighter material and barbecue
charcoal, they can apply the 9 grams/start of VOC emissions
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from an electric probe compared to EPA's requirement to test
both the untreated charcoal and treated charcoal.
The commenter (IV-D-25) also stated that EPA should
specify a standard charcoal to be used for the test. The
commenter stated that the Kingsford© brand charcoal from the
west coast was used by SCAQMD to develop the baseline emission
factor. If this charcoal is not used, the commenter asserted
that the baseline emission factor may be invalid and may need
to be revised.
Response: The EPA made the suggested changes in the
final rule to be consistent with the SCAQMD test methods.
Consistency with the SCAQMD test methods is necessary to
ensure that test results are consistent for a given product.
However, the EPA did remove the requirement to obtain charcoal
from the "west coast" in order for the method to be practical
for nationwide use.
Comment: One commenter (IV-D-25) stated that the
Charcoal Lighter Material Compliance Testing Protocol
§ 59.208(b) which provided that: "The testing must
demonstrate that subject VOC emissions resulting from the
ignition of barbecue charcoal are less than or equal to
9 grams per start." should be replaced with "on average, less
than or equal to."
Response: The EPA made the change the final consumer
products rule as suggested by the commenter. The change of
adding "on average..." before "less than or equal to" would
ensure consistency with other State regulations (i.e. Oregon
and Texas) as well as recognize that the test consists of at
least six test runs.
Comment: One commenter (IV-D-25) requested EPA to make
an addition to § 59.208(h)(ii) regarding the Pretest Procedure
for the ignition of the VOC emissions tests. The section
provides that the briquettes be randomly stacked in a pile
with a bottom diameter of 22 centimeters and a maximum height
of 13 centimeters. The commenter suggested EPA add the
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stacking ring described in § 59.208(f)(ix) to the procedure
for stacking the briquettes.
Response: The EPA inadvertently omitted this detail in
the Pretest Procedure in § 59.208(h)(ii) of the proposed rule.
The EPA has included the use of a stacking ring for the
ignition of the VOC emissions tests in § 59.208(h)(ii) of the
final consumer products rule.
2.2.9 Recordkeepina and Reporting
Comment: One commenter (IV-D-52) requested that EPA
clarify in the final rule whether or not the rule's
recordkeeping, reporting, code-dating, and test methods (i.e.,
everything but the VOC limitation requirements) apply to
distributors. This commenter also requested that EPA clarify
that facilities that fill consumer products are not considered
processors for purposes of the consumer products rule because
these facilities are independent and do not have the
information requested by EPA in the proposed rule.
Response: Distributors and facilities that fill consumer
products could be the party responsible for the recordkeeping,
reporting, code-dating, and test method requirements if they
are considered the regulated entity. As explained in section
2.2.2, the definition of "regulated entity" has be changed in
the final rule. According to the revised definition,
distributors who are not named on the product label are not
considered regulated entities. However, if the product is
manufactured by a company not named on the product's label,
the manufacturer of the product is a regulated entity.
With regard to concern about the regulated entity not
having information on product formulations, the regulated
entity may choose a designated agent (in this case, the custom
filler) to maintain the records. If requested, the regulated
entity must be able to supply copies of product records to the
administrator within a reasonable amount of time.
Comment: One commenter (IV-D-03) recommended that EPA
clarify the recordkeeping and reporting requirements in
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§ 59.209 which stated that reporting for FIFRA products begins
1 year later than for non-FIFRA products. The commenter
suggested the following language:
(i) Records of formulation in use on or after
September 1, 1996, for all consumer products subject to
59.203(a), or September 1, 1997 for all consumer products
subject to 59.203(d) and..."
Response: The EPA made the suggested change in the final
consumer products rule to provide any consumer products
registered under FIFRA (7 U.S.C. section 136-136y) a 1 year
extension from the compliance date stated in the final rule.
The EPA added this extension to be consistent with the
extension mentioned in § 59.203(d) of the final consumer
products rule.
Comment: One commenter (IV-D-25) requested that EPA make
changes to the recordkeeping requirements in § 59.209(c) to
keep it consistent with § 59.203. The commenter requested EPA
to add paragraph (c) (iii) .
(iii) Records of emission testing equivalent
to that described in 59.208 submitted to a
State or local regulatory agency.
The proposed regulation permitted manufacturers to demonstrate
charcoal lighter material compliance using records submitted
to State or local regulatory agencies.
Response: The EPA agreed and added the new paragraph to
§ 59.209(c). Modifications were made to incorporate this
suggested change into the final rule.
Comment: Seven commenters (IV-D-14, IV-D-17, IV-D-25,
IV-D-33, IV-D-36, IV-D-52, IV-D-59) stated that the initial
notification report required in proposed § 59.209(d) was
overly burdensome. The proposed initial notification report
required each manufacturer or importer of a consumer product
subject to this rule to submit a one-time notification report
by September 1, 1996 or upon startup of a new manufacturing or
distribution facility. Three commenters (IV-D-14, IV-D-25,
IV-D-33) stated that locations of manufacturing and
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distribution facilities change frequently because the consumer
products industry relies on contract manufacturing facilities.
One commenter (IV-D-33) stated that the proposed requirement
was impractical because companies may have dozens to hundreds
of facilities for manufacturing and distributing products and
they produce rapidly changing product lines at various plants.
The commenter noted that the proposed reporting requirements
would be a significant paperwork burden for both EPA and
industry. Three commenters (IV-D-14, IV-D-17, IV-D-33)
recommended the following provisions regarding reporting
requirements:
(d) Each manufacturer or importer of a consumer product
subject to this subpart shall submit by September 1, 1996
a one-time Initial Notification Report including the
information specified in paragraphs (d)(1) through (d)(4)
of this section.
(1) Company name;
(2) A list of product categories and subcategories,
as found in tables 1 and 2, that are
manufactured, imported, or distributed.
(3) Description of date coding systems, clearly
explaining how the date of manufacture is
marked on each sales unit of subject consumer
products; and
(4) Name, title, and signature of certifying
company official.
One commenter (IV-D-14) also recommended EPA add an
additional subpart to § 59.209 as follows:
If requested by the Administrator, the following
information shall be made available in a reasonable
period of time:
(1) Location of facility(ies) manufacturing,
importing, or distributing subject consumer
product:
(2) A list of product categories and subcategories,
as found in tables 1 and 2, that are
manufactured, imported or distributed at each
facility; and
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(3) Location where VOC content records are kept for
each subject consumer product.
One commenter (IV-D-36) requested that EPA allow at least
90 days following final promulgation before the initial
notification report was required.
Response: In response to these comments, EPA agrees that
some of the proposed recordkeeping and reporting requirements
were unnecessary, based upon information provided by
commenters. The EPA has simplified the recordkeeping and
reporting section for the initial notification reporting
requirements to reduce the amount of reporting required.
Paragraphs (d), (f), and (g) of § 59.209 have been changed to
read as follows:
(d) Each regulated entity shall submit by the applicable
compliance date, or within 30 days of becoming a
regulated entity, one-time Initial Notification
Report including the information specified in
paragraphs (d)(1) through (d)(4) of this section.
(1) Company name;
(2) Name, title, phone number, address, and
signature of certifying company official;
(3) A list of product categories and subcategories
subject to 203(a) and (d), as found in tables 1
and 2, for which the company is currently the
regulated entity; and
(4) A description of date coding systems, clearly
explaining how the date of manufacturing is
marked on each sales unit of subject consumer
products.
(f) If requested by the Administrator, the following
information shall be made available in a reasonable
period of time:
(1) Location of facility(ies) manufacturing,
importing, or distributing subject consumer
product;
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(2) A list of product categories and subcategories,
as found in tables 1 and 2, that are
manufactured, imported or distributed at each
facility; and
(3) Location where VOC content records are kept for
each subject consumer product.
(g) Each regulated entity subject to the innovative
product provisions in section 59.204 shall submit
notifications as indicated in section 59.204(d) and
(e) .
The EPA believes that these changes to the final rule
will make the reporting requirements less burdensome on the
regulated entities without affecting EPA's ability to
determine compliance. The initial notification report is due
90 days from the date of publication of the final rule or by
the compliance date. The EPA believes that the reporting
requirements are essential to ensure compliance and to permit
enforcement as necessary, but has decided to simplify the
requirements in a fashion that does not undermine these
objectives.
Comment: One commenter (IV-D-33) noted that the
automatic reporting of date-code changes required under
proposed § 59.209(e) could be accomplished by regulated
entities supplying updates upon request from EPA. The
commenter based this suggestion upon its assertion that within
one to 3 years almost all the products manufactured prior to
the effective date will be out of the chain of commerce while
the requirements of the rule will continue indefinitely.
Response: Contrary to the commenter's assertion, EPA
believes it is essential to be able to ascertain the date of
manufacture of a product on the shelf, without regard to how
long the regulation has been in effect. The EPA's rationale
for this position is discussed in detail in section 2.2.5 of
this BID. Therefore, EPA has not changed the provision in the
final consumer products rule.
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Comment: Several commenters (IV-D-26, IV-D-27, IV-D-37,
IV-D-43, IV-D-52, IV-D-59) expressed concern about the
possibility of reporting requirements that would reveal trade
secrets and proprietary formulations to competitors. One
commenter (IV-D-26) requested that EPA clarify that consumer
products manufacturers can comply with the rule without
divulging trade secret information from their raw material
suppliers. A second commenter (IV-D-43) requested that EPA
modify the regulation so that private label distributors can
arrange to have the necessary information reported by the
contract filler. This commenter argued that this modification
would assure confidentiality of proprietary information and
avoid duplicative recordkeeping. Three of the commenters
(IV-D-27, IV-D-37, IV-D-41) stated that since they do not
manufacture the products they should not be required to
understand the formulation of the products or have the
reporting requirements of the manufacturers. One commenter
(IV-D-27) described itself as a private label distributor.
For marketing reasons, the commenter's name is on the package
instead of the filler's. The commenter noted that the
manufacturer might not want other companies to know that it is
filling for multiple competitors.
One commenter (IV-D-33) supported the recordkeeping and
reporting requirements and recommended that EPA modify
§ 59.209(a) that required certain manufacturing records to be
maintained by each manufacturer or importer subject to the
provisions of § 59.209(a). The commenter suggested that EPA
use the following language:
(a) Each regulated entity of a given product subject to
the provisions of § 59.203(a) or (d) shall maintain
records specified in (a)(I) and (a)(ii) of this section
for a least 5 years, or assure that a designed agent
maintain such records.
Two commenters (IV-D-41, IV-D-47) requested clarifications to
amend § 59.209 to allow manufacturers to meet their
recordkeeping requirements by having their contract packager
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or designated agent maintain the required records. One
commenter (IV-D-41) stated that the use of contract packagers
is prevalent in the consumer product industry and allowing
them to maintain the records for purposes of compliance will
facilitate recordkeeping and still be consistent with the
intent and purpose of the proposed VOC standard. The other
commenter (IV-D-47) requested that EPA modify proposed
59.209(a) to include the "manufacturer or his agent" in order
to recognize that the regulated entity does not need to
physically possess the formulation and production records to
comply with § 59.209(a)(i) and (ii). Another commenter
(IV-D-41) also requested that EPA change the language that
requires the party named on the label to maintain records.
Four commenters (IV-D-10, IV-D-47, IV-D-52, IV-D-59) requested
modifications to § 59.209(d). Two commenters (IV-D-10,
IV-D-47) requested that EPA clarify the relationship between
the regulated entity and the actual producer of the consumer
product by modifying § 59.209(d) to specifically require that
the location in (d)(2) is that of the regulated entity and
that the location in (d)(4) can be that of the producer. One
commenter (IV-D-10) stated that it should be sufficient that
regulated entities who do not manufacturer the product they
market maintain and provide information concerning the
location of its contract fillers and have on file a letter of
agreement from its fillers certifying that their product
formulations and recordkeeping procedures comply with the
national standard.
Response: It was EPA's intent that the regulated entity
(the party with ultimate control over the VOC content of the
product) also be responsible for the recordkeeping and
reporting requirements. In response to the concerns raised
about trade secrets and proprietary information, the
recordkeeping and reporting requirements of § 59.209(a) were
revised to indicate that the manufacturer may provide written
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certification to EPA accepting responsibility for the
recordkeeping requirements on behalf of the regulated entity.
Failure to maintain the required records may result in
enforcement action by EPA against the certifying manufacturer
in accordance with the enforcement provisions applicable to
violations of these provisions by regulated entities. The
certifying manufacturer may revoke the written certification
by sending a written statement to EPA and the regulated entity
giving at least 90 days notice that the certifying
manufacturer is rescinding acceptance of responsibility for
compliance with the recordkeeping requirements listed in this
paragraph. Upon expiration of the notice period, the
regulated entity must assume responsibility for maintaining
the records specified in this paragraph. Written
certifications and revocation statements, to EPA from the
certifying manufacturer shall be signed by the responsible
official of the certifying manufacturer, provide the name and
address of the certifying manufacturer, and be sent to the
appropriate EPA Regional Office at the address listed in
§ 59.210. Such written certifications are not transferable by
the manufacturer.
Other changes were made to simplify the recordkeeping and
reporting requirements. The location of each facility
manufacturing, importing, or distributing a consumer product,
and the VOC content records, need only be supplied upon
request by the Administrator, rather than with each initial
notification. Similarly, changes in the date coding system
made after a 3 year period will only need to be submitted upon
request, not automatically required within 30 days following
the change.
Comment: One commenter (IV-D-13) stated that EPA should
require additional information in the reporting requirements
for consumer product manufacturers. For example, the
commenter stated that EPA should request product content and
labeling information in the reporting requirements. The
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commenter does not believe that the information required by
the proposed rule is sufficient to establish a firm foundation
for compliance and enforcement actions. Another commenter
(IV-D-34) stated that they support the reporting requirements
stated in the proposal to provide formulation data to
demonstrate compliance. The commenter believes it is the
least costly way of ensuring compliance.
Response: The EPA believes that the requested amount of
reporting will provide enough information to enable EPA to
obtain VOC content information upon request. Requiring the
regulated entities to submit VOC content information as part
of the initial report would be excessively burdensome to both
regulated entities and EPA and would not enhance EPA's ability
to ensure compliance.
Comment: One commenter (IV-D-43) requested that EPA not
require reporting for each batch of production because such a
requirement would inundate EPA with a excessive and burdensome
amount of paperwork. The commenter (IV-D-43) recommended that
the manufacturers instead maintain these records and make them
available to EPA for periodic audits, thereby eliminating
paperwork and labor expense for both the manufacturers and
EPA.
Response: The only report required from regulated
entities is a one-time initial notification report that is due
on or before the compliance date or within 30 days of when the
manufacturer becomes subject to the rule. The report requires
the company name; the name, title, phone number, address, and
signature of certifying company official; a list of products
categories and subcategories subject to the rule; and
descriptions of date coding systems, clearly explaining how
the date of manufacture is marked on each sales unit of
subject consumer products. The regulated entities or their
designated agents are not required to submit reports of each
planned batch, but must maintain records of each batch of
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production in a form suitable for expeditious inspection and
review on request by the Administrator.
2.3 IMPACTS
2 . 3'. 1 Cost Effectiveness
Comment: Two commenters supported the EPA's traditional
approach to measuring cost-effectiveness. One of these
commenters (IV-D-11) supported the approach because air
quality studies demonstrate that ozone and its precursors are
being transported from region to region. The commenter also
disagreed with the alternative method (of restricting the
measure to nonattainment areas only) because it assumes that
VOC reductions outside nonattainment areas have no value. The
other commenter (IV-D-13) stated that EPA should maintain the
traditional measure because it is commonly used for
comparisons and will continue to provide meaningful
comparisons. The commenter did not believe that the
alternative measures discussed accurately reflect all the
benefits provided by this particular rule. One commenter
(IV-D-33) supported both approaches to measuring cost-
effectiveness, since both calculations provide relevant
information on the cost-effectiveness of the rule.
Four commenters supported the alternative approach to
measuring cost-effectiveness. One commenter (IV-D-09) stated
that the measurement should reflect the rule's express purpose
- achieving compliance with the ozone NAAQS in nonattainment
areas. The commenter, therefore, recommended using only those
emissions expected to occur within ozone nonattainment areas.
The commenter continued by suggesting that EPA only consider
emissions expected to occur during the ozone nonattainment
season or during the "chemically relevant" window preceding an
expected noncompliance event, because emission reductions at
other times will not help to achieve compliance with the
NAAQS. Another commenter (IV-D-12) stated that cost-
effectiveness analysis permits the comparison of regulatory
alternatives and such calculations are used as a proxy for
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benefits. The commenter stated that since the greatest
benefits would be attributed to emissions reduced in
nonattainment areas during the ozone season, the measure of
cost-effectiveness should reflect emission reductions achieved
(1) in nonattainment areas, and (2) during the ozone season.
The third commenter (IV-D-22) stated that the national measure
seems like a "bargain," but that a more appropriate measure
would be cost-effectiveness of VOC reductions in nonattainment
areas. The commenter agreed with the approach of using the
ratio of population in nonattainment areas to determine the
level of emission reductions to apply to the calculation, but
points out that EPA used data from 1988-90 and that more
recent population estimates in nonattainment areas would be
much lower. The fourth commenter (IV-D-32) urged EPA to adopt
the alternative approach proposed because the current approach
created a bias against tailored, local, and seasonal
regulatory approaches. The commenter stated that to have
valid use in public policy analysis, EPA's cost-effectiveness
measure must include the social benefits that flow from
regulation and the resulting costs. The commenter stated that
rather than assigning a zero value to all attainment area
reductions, EPA should weight these emissions based on their
relationship to improvements in public health. The commenter
continued by stating that emission reductions outside the
ozone season should be assigned a different weighting than
those occurring during the ozone season. They suggested that
EPA should provide consistent methodology to allow valid
comparisons of the cost-effectiveness of (I) nationwide, year-
round VOC control regulations; (2) nationwide, ozone season
VOC controls; (3) nonattainment area-specific controls; and
(4) nonattainment area, ozone season VOC controls.
Response: Cost effectiveness -- the cost per ton of
emissions reduced -- is a measure used to compare the cost
efficiency of alternative strategies for reducing pollutant
emissions, or to provide a comparison of a new strategy with
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historical strategies. EPA's established method of
calculating cost effectiveness of a rule with nationwide
applicability is to divide the total cost of the rule by total
emissions reductions. After considering these comments, EPA
does not plan to adopt the alternative approaches suggested to
calculating cost effectiveness for rules with nationwide
control requirements, for reasons that are presented below.
One issue raised by the comments is whether EPA's
traditional measure creates a bias against strategies that
apply in a limited geographic area (e.g. in nonattainment
areas) relative to nationwide strategies, or against seasonal
strategies relative to year-round strategies. This issue
would arise if the Agency used cost effectiveness figures to
compare the desirability of these dissimilar types of
strategies. In fact, EPA did not use cost effectiveness
estimates in this way in developing the consumer products rule
and does not plan to do so for other rules or guidance being
developed under section 183(e). In the case of the consumer
products rule, EPA considered applying restrictions to
consumer products only in nonattainment areas (either by rule
or through control techniques guidelines for states). The
Agency determined that geographically targeted restrictions
for these nationally distributed consumer products would pose
substantial implementation difficulties for government, would
impose substantial compliance burdens on a large number of
regulated entities, and would be less effective at reducing
emissions than a national rule (see section 2.1.2 for further
discussion). Given that a strategy applicable only to
nonattainment areas is not practical or desirable for consumer
products, EPA did not see a need to invest resources to pursue
that strategy and calculate its cost effectiveness.
Another issue raised in these comments is whether the
alternative methodology is appropriate for comparing
nationwide and target geographic strategies to year-round and
seasonal strategies for reducing ozone pollution. The EPA
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believes that these alternative methodologies would not be
appropriate for such comparisons. The EPA has the following
concerns with the two alternative approaches:
First, VOC emission reductions have benefits other
than reducing ozone levels in nonattainment areas.
As a result, EPA believes the cost effectiveness
calculation for a nationwide, year-round rule should
not exclude VOC emission reductions in attainment
areas or outside the ozone season. EPA recognizes a
primary objective of Section 183(e) of the Clean Air
Act is to reduce VOC emissions in ozone
nonattainment areas. However, as previously
explained, in the development of the consumer
products rule the EPA found that the best policy
alternative is to implement a nationwide rule.
Therefore, emission reductions from this rule will
not only be realized in ozone nonattainment areas,
but also in all other parts of the country in which
consumer products are distributed and consumed.
In general, the benefits of VOC reductions in ozone
attainment areas include reductions in emissions of
VOC air toxics, reductions in the contribution from
VOC emissions to the formation of fine particulate
matter, and reductions in damage to agricultural
crops, forests and ecosystems from ozone exposure.
Emission reductions in attainment areas help to
maintain clean air as the economy grows and new
pollution sources come into existence. Also, ozone
health benefits can result from reductions in
attainment areas. The closure letter from the Clean
Air Science Advisory Committee (CASAC) for the
recent review of the ozone NAAQS states that there
is no apparent threshold for responses to ozone
exposure [Source: U.S. EPA; Review of NAAQS for
Ozone, Assessment of Scientific and Technical
Information, OAQPS Staff Paper; document number:
EPA-452XR-96-007]. In other words, reactions to
ozone have been found at concentrations below the
current standard (0.12, 1 hour), and the revised
standard (0.08, 8 hour).
Second, under either alternative approach, emission
reductions in ozone attainment areas would not be
included in the calculation of a rule's cost
effectiveness. The implicit assumption is that
emissions reductions in attainment areas do not
contribute to cleaner air in nonattainment areas.
In fact, NOx emitted long distances away can affect
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ozone levels in nonattainment areas. In some
circumstances VOC sources outside nonattainment area
boundaries contribute to ozone levels in
nonattainment areas. As a result, a
cost-effectiveness comparison based on the
alternative approaches sometimes could create a bias
against a nationwide rule relative to a strategy
that applies in nonattainment areas only.
The EPA also considers it impractical to apply a
weighting factor to account for differences in the
extent to which emissions inside and outside
nonattainment areas contribute to ozone formation in
nonattainment areas. EPA is concerned that in order
to calculate cost effectiveness using this concept,
the Agency would have to conduct extensive and
costly air quality modeling to estimate ozone
reductions resulting from each candidate control
strategy and that this would require extensive data
on the location of emissions. Such detailed
analysis is appropriate for some policy decisions,
but not for others. As a result, EPA is skeptical
that this weighting approach would represent a
generally useful analytical tool for decision
making.
The EPA, of course, agrees that differences in the
location and timing of emission reductions are a significant
consideration in choosing among alternative strategies. The
extent of ozone reductions and other benefits resulting from
VOC emission reductions varies, partly based on location and
season. In considering nationwide vs. geographically
targeted controls, and year-round vs. seasonal controls, the
Agency considers available information on the effectiveness of
those strategies in reducing ozone -- as well as other health
and environmental considerations, economic considerations, and
other relevant factors -- in making a holistic assessment of
which strategy is most desirable from an overall public policy
standpoint.
There are instances where EPA does provide an estimate of
cost effectiveness of a control strategy during the ozone
season -- generally, when a control strategy is feasible to
apply on a seasonal basis, or when limits are set on a
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seasonal basis. Although these figures are useful for
comparing different seasonal strategies, EPA does not plan to
use cost effectiveness figures to compare seasonal and
year-round strategies for the 183(e) program for the reasons
presented above. In regard to the consumer products rule, EPA
notes that the nature of consumer product emissions does not
allow for control strategies that reduce emissions only during
the ozone season to be an objective for consideration. One
reason is that the shelf life and consumption rate of consumer
products varies greatly and one cannot predict that a certain
percentage of a product made with a specified formulation will
be consumed and thus emitted during the ozone season. Due to
the fact that reductions during the ozone season only is not a
viable control strategy for consumer products, the EPA cannot
endorse a seasonal approach to measuring cost effectiveness
for the consumer products rule.
2.4 MISCELLANEOUS ISSUES AND CLARIFICATIONS
Comment: Two commenters (IV-D-06, IV-D-33) stated that
if EPA does not promulgate before the end of 1996, the States
would not be able to receive the 20 percent credit towards
their State Implementation Plan (SIP). The commenters were
concerned that States might need to develop their own consumer
and commercial products rules if EPA does not promulgate
before the end of 1996, and that varying State rules could
result in conflicting or burdensome regulations for
manufacturers and distributors of consumer products.
Response: The EPA's intent was to promulgate the
consumer products rule before the end of 1996. The EPA
recognizes that the States need to receive the 20 percent
credit towards their SIP rate of progress demonstrations.
This credit will be given even though the rule will be
promulgated after 1996. The EPA believes this position is
justified in light of the significant delays in promulgating
the rule. The anticipated emission reductions associated with
implementation of the rule are expected to remain unchanged.
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The EPA anticipates that the promulgation of the final
consumer products rule at this time will not force States to
issue their own rules in lieu of the Federal consumer products
rule in order to get SIP credit.
Comment: One commenter (IV-D-33) requested that EPA make
sure the compliance date in § 59.201(a) agrees with the date
in § 59.203(a).
Response: The EPA has clarified in the final rule that
the compliance dates in §§ 59.201(a) and 59.203(a) will be
90 days after publication of the final rule.
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TECHNICAL REPORT DATA
(Please read Instructions on reverse before completing)
1. REPORT NO 2
EPA-453/R-98-008b
4. TITLE AND SUBTITLE
National Volatile Organic Compound Emission Standards For
Consumer Products Background for Promulgated Standards
7. AUTHOR(S)
9. PERFORMING ORGANIZATION NAME AND ADDRESS
U.S. Environmental Protection Agency
Office of Air Quality Planning and Standards
Emission Standards Division (MD-13)
Coatings and Consumer Products Group
Research Triangle Park, NC 2771 1
12 SPONSORING AGENCY NAME AND ADDRESS
U.S. Environmental Protection Agency
Office of Air Quality Planning and Standards
Emission Standards Division (MD-13)
Coatings and Consumer Products Group
Research Triangle Park, NC 27711
3 RECIPIENTS ACCESSION NO.
5 REPORT DATE
August 1998
6 PERFORMING ORGANIZATION CODE
8. PERFORMING ORGANIZATION REPORT NO.
10. PROGRAM ELEMENT NO.
11. CONTRACT/GRANT NO.
13 TYPE OF REPORT AND PERIOD COVERED
Final
14. SPONSORING AGENCY CODE
15. SUPPLEMENTARY NOTES
16 ABSTRACT
A final rule for the regulation of volatile organic compounds (VOC) from consumer products is being
promulgated under the authority of section 183(e) of the Clean Air Act. This document contains summaries
of comments received from the public, along with EPA's responses to those comments.
1 7 KEY WORDS AND DOCUMENT ANALYSIS
a DESCRIPTORS
Air Pollution
Volatile Organic Compounds
Consumer Products
Consumer and Commercial Products
18 DISTRIBUTION STATEMENT
Release Unlimited
b. IDEKnFIERS'OPEN ENDED TERMS
19. SECURITY CLASS (Report)
Unclassified
20. SECURITY CLASS (Page)
Unclassified
c COSATI Field/Group
21. NO. OF PAGES
68
22. PRICE
EPA Form 2220-1 (Rev. 4-77) PREVIOUS EDITION IS OBSOLETE
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