**NATIONAL VOLATILE ORGANIC COMPOUND**

**EMISSION STANDARDS**

**FOR AEROSOL COATINGS**

**Summary of Public Comments and Responses**

**Natural Resources and Commence Group**

**Sector Policies and Programs Division**

**U.S. Environmental Protection Agency**

**Office of Air and Radiation**

**Office of Air Quality Planning and Standards**

**Research Triangle Park, North Carolina 27711**

**November 15, 2007**

**1.0 SUMMARY**

On July 16, 2007, the Environmental Protection Agency (EPA) proposed
national volatile organic emission standards for Aerosol Coatings
(72 FR 38951) under authority of section 183(e) of the Clean Air Act
(Act). Public comments were requested on the proposal in the [Federal
Register]{.underline}. There were 18 commenters composed mainly of
aerosol coating manufacturers /distributors, States, public
organizations, and industry trade associations.

All of the comments that were submitted, along with responses to these
comments, are summarized in this document. The summary of comments and
responses serves as the basis for the revisions made to the standards
between proposal and promulgation.

A list acronyms and abbreviations used in this document follows:

AIM Architectural & Industrial Maintenance

BAC Best Available Controls

CAA Clean Air Act

CARB California Air Resources Board

CAS Chemical Abstracts Service

CASRN Chemical Abstracts Service Registry Number

EPA United States Environmental Protection Agency

FIFRA Federal Insecticide, Fungicide & Rodenticide Act

HAP Hazardous Air Pollutants

IVOC Intermediate Volatility VOC

MACT Maximum Achievable Control Technology

MC Methylene Chloride

MIR Maximum Incremental Reactivity

NAAQS National Ambient Air Quality Standards

NARSTO North American Research Strategy for Tropospheric Ozone

NEI National Emission Inventory

NESCAUM Northeast States for Coordinated Air Use Management

> NESHAPS National Emission Standards for Hazardous Air Pollutants

NOx Nitrogen oxides

OAR Office of Air and Radiation

OSHA Occupational Safety and Health Act

OTC Ozone Transport Commission

POA Primary Organic Aerosols

PM Particulate Matter

PWR Product Weighted Reactivity

RACT Reasonably Available Control Technology

SIP State Implementation Plan

RRWG Reactivity Research Working Group

SOA Secondary Organic Aerosols

SVOC Semivolatile VOC

VOC Volatile Organic Compounds

**2.0 SUMMARY OF PUBLIC COMMENTS**

A total of 18 letters commenting on the proposed standards and the
background information for the proposed standards were received. A
public hearing, with one presenter, was also held. A list of the
commenters, their affiliations, and EPA docket number assigned to their
correspondence is given in table 2-1. Table 2-1 also presents the docket
numbers for each comment letter, as well as a reference code, used to
identify specific commenters in the comment summary sections, for each
substantive comment letter. The comment letters without reference
letters were short letters submitted in support of the proposed rule,
which are not summarized in this document.

The comments have been categorized under the following areas:

1.  Best Available Controls: Mass versus Reactivity-Based Limits

2.  Robustness of Relative Reactivity Scale

3.  Particulate Matter, Stratospheric Ozone, and Toxic Impacts

4.  Regulated Entities and Small Business Exemption

5.  Compliance Demonstration Requirements and Enforcement

6.  Emission Reduction / SIP Credit

7.  Clarifications / Specific Rule Questions

**TABLE 2-1. LIST OF COMMENTERS ON PROPOSED**

**NATIONAL VOLATILE ORGANIC COMPOUND**

**EMISSION STANDARDS**

**FOR AEROSOL COATINGS**

+------------------+------------------+-------------------------------+
| **Docket         | **Reference used | **Commenter and affiliation** |
| Numbera**        | in this          |                               |
|                  | document**       |                               |
+==================+==================+===============================+
|                  | AA               | Robert Sliwinski              |
|                  |                  |                               |
|                  |                  | Division of Air Resources     |
|                  |                  |                               |
|                  |                  | NY State Department of        |
|                  |                  | Environmental Conservation    |
|                  |                  |                               |
|                  |                  | *\[Speaking on behalf of NY   |
|                  |                  | and the Ozone Transport       |
|                  |                  | Commission (OTC)\]-           |
|                  |                  | **Public** **Hearing          |
|                  |                  | Comment***                    |
+------------------+------------------+-------------------------------+
| 0034.1           | BB               | Heidi McAuliffe, Esq.         |
|                  |                  |                               |
|                  |                  | Counsel, Government Affairs   |
|                  |                  |                               |
|                  |                  | National Paint & Coatings     |
|                  |                  | Association                   |
|                  |                  |                               |
|                  |                  | 1500 Rhode Island Avenue, NW  |
|                  |                  |                               |
|                  |                  | Washington, D.C. 2005-5597    |
+------------------+------------------+-------------------------------+
| 0030.1           | CC               | Diane Nash                    |
|                  |                  |                               |
|                  |                  | Manager, Quality Systems and  |
|                  |                  | Health, Safety & Environment  |
|                  |                  |                               |
|                  |                  | Akzo Nobel Car Refinishes     |
|                  |                  | North America                 |
|                  |                  |                               |
|                  |                  | 30 Brush Street               |
|                  |                  |                               |
|                  |                  | Pontiac, Michigan 48341       |
+------------------+------------------+-------------------------------+
| 0035.1           | DD               | Arthur N. Marin               |
|                  |                  |                               |
|                  |                  | Executive Director            |
|                  |                  |                               |
|                  |                  | NESCAUM                       |
|                  |                  |                               |
|                  |                  | 101 Merrimac Street, 10^th^   |
|                  |                  | Floor                         |
|                  |                  |                               |
|                  |                  | Boston, Massachusetts 02114   |
+------------------+------------------+-------------------------------+
| 0038.1           | EE               | Anna Garcia                   |
|                  |                  |                               |
|                  |                  | Acting Executive Director     |
|                  |                  |                               |
|                  |                  | Ozone Transport Commission    |
|                  |                  |                               |
|                  |                  | 444 N. Capitol Street, NW     |
|                  |                  |                               |
|                  |                  | Suite 638                     |
|                  |                  |                               |
|                  |                  | Washington, D.C. 20001        |
+------------------+------------------+-------------------------------+
| 0041.1           | FF               | Sharon H. Kneiss              |
|                  |                  |                               |
|                  |                  | Vice President, Products      |
|                  |                  | Development                   |
|                  |                  |                               |
|                  |                  | American Chemical Council-    |
|                  |                  | Solvent Industry Group        |
|                  |                  |                               |
|                  |                  | 1300 Wilson Boulevard         |
|                  |                  |                               |
|                  |                  | Arlington, Virginia 22209     |
+------------------+------------------+-------------------------------+
| 0042.1           | GG               | Ann R. Gobin                  |
|                  |                  |                               |
|                  |                  | Chief, Bureau of Air          |
|                  |                  | Management                    |
|                  |                  |                               |
|                  |                  | Department of Environmental   |
|                  |                  | Protection                    |
|                  |                  |                               |
|                  |                  | State of Connecticut          |
|                  |                  |                               |
|                  |                  | 79 Elm Street                 |
|                  |                  |                               |
|                  |                  | Hartford, Connecticut         |
|                  |                  | 06106-5127                    |
+------------------+------------------+-------------------------------+
| 0039.1           | HH               | Stephen P. Risetto            |
|                  |                  |                               |
|                  |                  | Executive Director            |
|                  |                  |                               |
|                  |                  | Halogenated Solvent Industry  |
|                  |                  | Alliance                      |
|                  |                  |                               |
|                  |                  | 1300 Wilson Boulevard         |
|                  |                  |                               |
|                  |                  | Arlington, Virginia 22209     |
+------------------+------------------+-------------------------------+
| 0040.1 through   | II               | Patrice Simms                 |
| 0040.5           |                  |                               |
|                  |                  | Senior Project Attorney       |
|                  |                  |                               |
|                  |                  | Natural Resources Defense     |
|                  |                  | Council                       |
+------------------+------------------+-------------------------------+
| 0043             | JJ               | D. Douglas Fratz, Vice        |
|                  |                  | President, Scientific and     |
|                  |                  | Technical Affairs             |
|                  |                  |                               |
|                  |                  | Joseph T. Yost, Director,     |
|                  |                  | State Affairs                 |
|                  |                  |                               |
|                  |                  | Consumer Specialty Products   |
|                  |                  | Association                   |
|                  |                  |                               |
|                  |                  | 900 17^th^ Street, NW Suite   |
|                  |                  | 300                           |
|                  |                  |                               |
|                  |                  | Washington, D.C. 20006        |
+------------------+------------------+-------------------------------+
| 0043.1           | KK               | Guo Lisheng                   |
|                  |                  |                               |
|                  |                  | China WTO/TBT National        |
|                  |                  | Notification & Enquiry Center |
|                  |                  |                               |
|                  |                  | Standard and Regulation       |
|                  |                  | Research Center               |
|                  |                  |                               |
|                  |                  | AQSIQ                         |
|                  |                  |                               |
|                  |                  | P.R. China                    |
+------------------+------------------+-------------------------------+
| 0031.1           |                  | Roger R. Vanderlaan           |
|                  |                  |                               |
|                  |                  | Shield Packaging of CA        |
|                  |                  |                               |
|                  |                  | 5165 G Street                 |
|                  |                  |                               |
|                  |                  | Chino, California 91710       |
+------------------+------------------+-------------------------------+
| 0033             |                  | Douglas Raymond               |
|                  |                  |                               |
|                  |                  | National Aerosol Association  |
|                  |                  |                               |
|                  |                  | djraymond@reg-resources.com   |
+------------------+------------------+-------------------------------+
| 0027.1           |                  | Gary Silvers                  |
|                  |                  |                               |
|                  |                  | Vice President, Research and  |
|                  |                  | Development                   |
|                  |                  |                               |
|                  |                  | Meguiar's                     |
|                  |                  |                               |
|                  |                  | 17991 Mitchell South          |
|                  |                  |                               |
|                  |                  | Irvine, California 92614      |
+------------------+------------------+-------------------------------+
| 0026.1           |                  | Chad Moline                   |
|                  |                  |                               |
|                  |                  | IKI Manufacturing Co, Inc.    |
|                  |                  |                               |
|                  |                  | 116 N. Swift Street           |
|                  |                  |                               |
|                  |                  | Edgerton, Wisconsin 53534     |
+------------------+------------------+-------------------------------+
| 0029.1           |                  | Jerry Ulrich                  |
|                  |                  |                               |
|                  |                  | President                     |
|                  |                  |                               |
|                  |                  | Four Star Chemical            |
|                  |                  |                               |
|                  |                  | 3137 East 26^th^ Street       |
|                  |                  |                               |
|                  |                  | Los Angeles, California 90023 |
+------------------+------------------+-------------------------------+
| 0028.1           |                  | Michael Bell                  |
|                  |                  |                               |
|                  |                  | Vice President                |
|                  |                  |                               |
|                  |                  | BAF Industries                |
|                  |                  |                               |
|                  |                  | 1451 Edinger Avenue, Suite F  |
|                  |                  |                               |
|                  |                  | Tustin, California 97280      |
+------------------+------------------+-------------------------------+
| 0036             |                  | Steve Gaver                   |
|                  |                  |                               |
|                  |                  | Technical Director            |
|                  |                  |                               |
|                  |                  | SEM Products, Inc.            |
|                  |                  |                               |
|                  |                  | 651 Michael Wylie Drive       |
|                  |                  |                               |
|                  |                  | Charlotte, North Carolina     |
|                  |                  | 28217                         |
+------------------+------------------+-------------------------------+
|                  |                  |                               |
+------------------+------------------+-------------------------------+
|                  |                  |                               |
+------------------+------------------+-------------------------------+

**a The docket number for the Aerosol Coating rule docket is
EPA-HQ-OAR-2006-0971.**

1.  **Selection of Regulated Pollutant and Format of Regulation**

**Comment:** Eight commenters (AA, BB, DD, EE, FF, GG, II, and JJ)
commented on the use of a reactivity based rule versus a mass-based
rule. Three commenters supported the reactivity-based rule, five
commenters raised concerns. Below the supportive comments are summarized
first, followed by the concerns.

Three commenters (BB, FF, and JJ) supported EPA's reactivity-based
rulemaking. One commenter (BB), who also supported the development of
CARB's reactivity-based rule, stated that EPA did a good job in
evaluating the reactivity regulation in California and the feasibility
of making it apply nationwide. The commenter believes that EPA has taken
a "bold step forward in the arena of air quality regulations." Another
commenter (JJ) stated that they "strongly concur with the reasoning
provided in the preamble to the proposed rule regarding the use of
relative reactivity in general, and the Maximum Incremental Reactivity
(MIR) scale in particular, in national as well as local ozone attainment
strategies." This commenter further stated that the reactivity-based
rules do not unreasonably increase industry costs. In fact, the
commenter stated that a reactivity-based approach would be more
cost-effective.

Another commenter (FF) stated that "\[t\]he rule is an important
advancement in the use of reactivity-based emissions regulations for
VOCs." The commenter provided the following points in support of this
rule and the future use of reactivity-based VOC emission limits in other
consumer product and coating standards:

1.  Reactivity-based VOC emission regulations are more appropriate and
    effective for addressing the environmental concern of interest,
    ozone formation potential.

2.  This national proposed rule is based on an established CARB
    regulation for aerosol coatings which has already been approved by
    EPA and in use for several years.

3.  Reactivity-based VOC emission regulations provide product
    formulators with more options for meeting environmental performance
    standards while providing technically feasible product performance,
    and stimulating future product development enhancements.

4.  There is evidence that lower mass-based VOC limits in some products
    may be leading to the increased use of more photochemically reactive
    VOCs, eliminating some of the anticipated environmental benefit
    (ozone reduction) of these regulations, and possibly increasing the
    actual ozone formation potential of the products themselves.

Two commenters (FF, JJ) stated that the reactivity-based approach is
consistent with the Agency's September 2005 "Interim Guidance on Control
of Volatile Organic Compounds in Ozone State Implementation Plans,"
which according to one commenter (FF) specifically "encourages states to
consider recent scientific information on the photochemical reactivity
of volatile organic compounds in the development of state implementation
plans designed to meet the national ambient air quality standards for
ozone \[70 FR 54046-54051; September 13, 2005\]." The commenter (FF)
concluded that reactivity-based VOC standards should not be considered
"only as a supplement to mass-based approaches, but as a scientifically
valid and appropriate means for controlling ozone formation." The
commenter also stated that in its approval of the CARB regulation EPA
appropriately stated that the reactivity-based rule will improve the
State Implementation Plan (SIP) in part by \"creating an incentive for
the use of solvents with relatively low contribution to ozone formation
\[70 FR 1642\]." The commenter (FF) further stated that some VOC
mass-based limits in the previous version of CARB\'s aerosol coatings
rule \"presented particularly difficult reformulation challenges\" for
product manufacturers \[70 FR 1642\]. The commenter noted that EPA
correctly noted that CARB\'s regulation will preserve the air quality
benefits of its previous rule, while at the same time allowing
manufacturers greater flexibility in reformulating their products, by
replacing existing mass-based VOC limits for aerosol spray coatings with
reactivity-based limits that are designed to achieve equivalent air
quality benefits \[70 FR 1642\]. The commenter concluded that expanding
this aerosol coating regulation to the rest of the United States expands
the benefits of this working reactivity-based VOC regulation to other
areas of the United States where ozone formation is a concern, while
allowing aerosol coating manufacturers to develop single formulations
for the entire United States. Another commenter (JJ) stated that
reactivity-based approaches should be considered in all ozone attainment
evaluations for both VOC and NOx.

The commenter (FF) stated that the reactivity-bases approaches "can help
product formulators meet increasingly stringent environmental
requirements without compromising the efficacy of the formulated
products." The commenter further stated (FF) that:

> The latter point has a direct bearing on the effectiveness of
> environmental programs; products that do not work well can lead to
> greater environmental impacts. For example, coatings that do not last
> as long need to be applied more often, and cleaners that are not as
> effective may need to be used in greater quantities. In both cases,
> the net result can be an increase in total environmental emissions
> over time, which can offset projected gains from reduced VOC content
> in each individual product. A reactivity-based approach that allows
> formulators the flexibility to use the most effective solvents while
> meeting environmental requirements can lead to reduced environmental
> impacts both in the near-term product reformulations and in the
> development of future products.

Five commenters (AA, DD, EE, GG, and II) raised concerns over the use of
a reactivity based approach. Two commenters (DD, GG) believe that a
reactivity-based approach may have merit, but only if such an approach
"first addresses many unanswered questions about the potential adverse
impact of such an approach on other equally important, if not more so,
components of air quality management programs, namely, the effect on
ambient fine particulate matter (PM~2.5~) levels (and the resulting
nonattainment of the daily and annual federal PM~2.5~ standards) and air
toxics." The commenters also raised the issues of downwind ozone impacts
and enforceability. Another commenter (EE) agreed that the use of
reactivity may have merit, but stated that it is premature for use in a
national rule "as there are many unanswered questions related to ozone
impacts, other air pollution impacts, and enforceability compared with a
mass-based approach."

One commenter (II) provided an extensive history of the evolution of
EPA's use of reactivity, noting that EPA is not obligated to issue a
reactivity-based regulation. The commenter pointed out that the required
reactivity-based portion of EPA's obligation under §183(e) was fulfilled
during the listing process. The commenter stated that:

> The appropriateness of today's proposal depends on whether or not EPA
> has adequately addressed the complexity and uncertainties associated
> with reactivity-based regulation to ensure that such regulation will
> achieve the reductions in ozone predicted on a nationwide scale and be
> at least as protective to the public as mass-based regulation of VOC
> emissions.

The commenter (II) stated that, while the proposal appears to address
some of the identified uncertainties "to some degree, it is far from
clear that EPA has fully verified the appropriateness of a
reactivity-based approach in the context of a national rulemaking and
taken steps to ensure that the rule will result in the expected benefits
in *every affected airshed*." The commenter stated that EPA appeared to
suggest that the study by the Reactivity Research Working Group "fully
disposes of concerns regarding possible geographical/environmental
difference in VOC reactivity nation-wide." However, the commenter
concluded that "this justification appears far too qualified and
equivocal to form the basis of a nationwide regulatory program," citing
a "similarly unconvincing" "two sentence justification" in the proposal
preamble. The commenter was also concerned that the decision for this
national rule seemed to be based on the same studies that were used to
justify previous approval of a program for only California.

Because of the concerns discussed above, two commenters (AA, EE)
advocated for the use of a mass-based rule. The commenters pointed to
the uncertainty of the use of a reactivity-based approach, including
concerns over the toxicity of pollutants that are used as substitutes,
the potential inter-relationship with PM~2.5~ issues, downwind ozone,
and enforceability concerns. The commenters concluded that, given these
concerns, and the fact that a fully implemented rule only yields a
benefit equivalent to a 19 percent reduction of VOC, that EPA may be
"better served to establish a National rule based on the 1996 CARB rule
amended with 2002 mass-based limits known to be feasible." The
commenters stated that this is the approach used by two other states,
Oregon and Washington, who have aerosol coating rules. One commenter
(AA) further stated that since these limits would be feasible for all
manufacturers, the small manufacturer exemption, the extended compliance
date, and the variance provisions would all be unnecessary. Therefore,
the commenter concluded, this approach would achieve the most reductions
and would allow EPA time to conduct the required investigations to
address issues and not "rely on expectations that may not hold to be
true." One commenter (II) stated that "EPA appears to have neglected to
consider an approach that combines mass-based and reactivity-based
components." Another commenter (KK) stated that the MIR values should be
reviewed by a third party before their use in this rule.

**Response:** Under Clean Air Act section 183(e), EPA is charged with
developing regulations that implement best available controls for the
purposes of decreasing ground-level ozone formation. For aerosol
coatings, EPA believes that the proposed reactivity-based regulation is
best available control. The reactivity-based limits are based on those
adopted in CARB's reactivity-based rule and are designed to achieve the
same decrease in ozone formation that would have been achieved by CARB's
2002 mass-based limits, which are lower than CARB's 1996 mass-based
limits. However, while some of CARB's 2002 mass-based limits are now
considered unfeasible and are not in force, the reactivity-based limits
are now in effect and manufacturers are producing and selling compliant
products. Oregon and Washington have adopted CARB's 1996 mass-based
limits. However, even if these limits were lowered for some categories
to the 2002 limits, where deemed feasible, this hybrid approach proposed
by the commenters would not achieve the same level of ozone decrease
that the reactivity-based limits will. Furthermore, it is not clear that
manufacturers who are not currently subject to the CARB reactivity-based
limits would have any more or less difficulty meeting the hybrid mass
limits than they would meeting the reactivity-based limits in the
proposed rule. In other words, any mass-based rule would also likely
include provisions for small businesses and other variances.

The determination of best available control depends on EPA's
determination that the proposed relative reactivity factors can be used
to reasonably predict the changes in the ozone formation that will occur
due to changes in the emissions from this source category. After
thoughtful consideration of the available research, EPA believes that
this determination is justified. As described by commenter (II), EPA has
followed and contributed to the development of the science underlying
reactivity-based regulations since such an approach was proposed in the
early 1990s. EPA's position on the acceptability of reactivity scales
has evolved along with the science. The most recent results of research
performed under the Reactivity Research Working Group, cited in the
preamble, provide evidence that the relative reactivity factors in the
proposed rule are reasonably robust over a wide variety of environmental
conditions. Concerns about the potential for increased ozone downwind
are addressed in a separate section below. Although the recent research
suggests that other reactivity scales may more accurately represent the
behavior of ozone in current air quality models, it is not clear that
emission limits based on these scales would be achievable or that the
use of a different scale would lead to significantly different ozone
decreases from this source category. Furthermore, emission limits based
on a different scale than that used by CARB would lead to increased
costs to comply. Therefore, EPA believes that use of the proposed
relative reactivity factors is reasonable and will lead to net decreases
of ground-level ozone. The consideration of fine particle formation,
toxics exposures, and stratospheric ozone depletion are addressed below
in a separate section, as are concerns about the complexity of
enforcement.

**Comment:** One commenter (AA) disagreed with EPA's statement in the
preamble that this regulation was needed because there are areas of the
country that need VOC substitution strategies to address nonattainment
issues. The commenter (AA) argued that there are many opportunities to
reduce VOC mass by implementing readily available and proven programs,
"before embarking into VOC substitution." The commenter continued that
most nonattainment areas around the country have not taken aggressive
steps to limit VOCs; therefore, they contend that there are significant
reductions that can be obtained from programs, such as implementing RACT
or updating decades-old RACT programs, fuel strategies , and other area
source regulations like consumer products, architectural coatings, and
Stage I vapor recovery.

**Response:** Several of the commenters, including this commenter (AA),
inaccurately portray the choice between mass-based emission limits and
reactivity-based emission limits as a choice between emission reductions
and emission substitutions. For aerosol coating products, any new
emission limitation, whether it is mass-based or reactivity-based, will
be achieved by reformulating the product, changing the composition of
the associated emissions. With a reactivity-based limit, the
reformulation will be guided by relative reactivity factors that will
encourage manufacturers to use lower reactivity compounds and will limit
the overall ozone formation associated with the product. All of the VOC
components are included in the calculation; no compounds are exempted.
With a mass-based limit, manufacturers are encouraged to shift to more
powerful solvents, which are often higher in reactivity, and to use
VOC-exempt compounds, the use of which is not limited and which may have
non-negligible contributions to ozone formation if used in large enough
quantities. There is no explicit limit on the ozone formation associated
with the product. The precise impacts (on ozone, fine particles, air
toxics, or other environmental endpoint of concern) of either a
reactivity-based or mass-based set of emission limits are difficult to
predict given the reformulations that may be used to achieve the limits.
However, reactivity-based limits derived using a reasonable set of
relative reactivity factors provides the appropriate incentives to shift
formulations to lower reactivity compounds and limit the overall ozone
contribution of the affected products.

The commenter's (AA) assertion that reactivity-based regulations should
not be pursued until other mass-based VOC control measures, including
RACT, have been implemented or strengthened is irrelevant to the
decision of how EPA fulfills its obligations under Clean Air Act section
183(e) to implement best available controls. However, EPA does believe
that traditional mass-based VOC control measures continue to be
effective tools for addressing VOC contributions to ozone nonattainment
problems in many situations and that reactivity-based control measures
are most useful where mass-based controls have reached the limits of
technological feasibility. In the case of aerosol coatings, EPA has
determined that it is possible to use reactivity-based limits go beyond
what is achievable with mass-based limits, and therefore, has found
reactivity-based limits to be best available control.

2.  **Downwind Effects and Robustness of Relative Reactivity Scale**

**Comment:** Five commenters (AA, DD, FF, GG, and II) commented on the
state of the science of reactivity and whether EPA's statements about
the science of reactivity were correct. Three commenters (AA, DD, and
GG) questioned EPA's assertion that the expected realistic changes in
the formulation of aerosol products are unlikely to result in noticeable
increases in ozone downwind of the source. One commenter (AA) stated
that EPA does not know this to be the case. The commenter asserted that
this issue is important "for the simple fact that ozone non-attainment
areas in the Northeastern United States have the highest recorded ozone
values downwind of urban centers, and this effort has the potential to
increase ozone in the very place where ozone reductions are most needed,
confounding the ozone attainment plans that are being developed by the
states." The commenter also stated that increased ozone downwind from
urban centers could result in more impacts to agricultural and forested
areas of the country. The second commenter (DD) reiterated these
positions.

One commenter (AA) further stated that the statements made in the
preamble related to future ozone levels seem to be based on expectations
rather than demonstrations based on modeling efforts. He encouraged EPA,
given the potential for further tightening of the current ozone NAAQS,
to perform studies demonstrating that there would be no increase in
downwind ozone "so that the implementation of this rule does not worsen
ozone nonattainment problems found in the Northeastern United States."

**Response:** EPA recognizes commenter's concerns about downwind ozone
formation but continues to believe that the VOC reformulations resulting
from this reactivity-based regulation will reduce overall ozone
formation and exposure. First, any enhancements of downwind ozone caused
by upwind substitution of larger amounts of less reactive VOCs are
expected to be smaller than the concurrent reductions of upwind ozone.
Carter et al. (2003), in modeling large-scale VOC substitution
scenarios, found larger local ozone reductions and smaller downwind
ozone increases. Similarly, Arunachalam et al. (2003) found that
"high-versus-low reactivity substitution" is "an effective strategy for
reducing high levels of ozone," especially in or downwind of urban
areas. In a modeling exercise conducted to inform this rulemaking,
Luecken (2007; see docket) substituted lower reactivity VOCs for higher
reactivity VOCs in the Chicago area and found the resulting downwind
ozone disbenefits to be much smaller than the upwind ozone benefits. In
general, upwind ozone reductions are expected to occur in or near urban
areas, where ozone levels are highest, thus reducing overall population
exposure. Second, downwind areas, particularly remote, rural, or
suburban areas, are likely to be NOx-limited (Sillman, 1999; AQCD,
2006), thus restricting ozone formation from small additional amounts of
upwind anthropogenic VOCs. The implementation of other regulations such
as the Clean Air Interstate Rule will likely reduce NOx further in such
areas. Third, in downwind areas that may be VOC-limited, the
simultaneous VOC substitutions occurring in these areas may
counterbalance, to some extent, the introduction of VOCs from upwind.
Fourth, the reductions in upwind reactivity and ozone formation are
likely to reduce the direct transport of ozone and ozone precursors such
as aldehydes downwind from urban areas. Fifth, this reactivity-based
regulation eliminates the complete exemption for certain low-reactivity
VOCs, placing a limit on the amount of these previously unrestricted
compounds in any coating formulation and thus limiting these compounds'
potential to form ozone downwind.

EPA agrees that modeling can be useful for demonstrating the impacts of
regulatory changes. While EPA did not perform nationwide modeling
specific to this regulation, EPA believes the three studies cited above
support our contention that downwind ozone enhancements are likely to be
small, especially compared to upwind ozone reductions. Thus while
additional modeling will continue to shed light on VOC reactivity, EPA
believes there is an adequate basis for proceeding with this
reactivity-based regulation. As the science evolves, EPA will continue
to invest and participate in research into VOC chemistry and the use of
reactivity measures.

**Comment:** One commenter (II) stated that, while reactivity-based
approaches may provide significant benefits "where the science is
sufficiently robust to ensure that the expected benefits are achieved in
practice, the commenter stated that, based on the proposal, "it is not
clear that EPA has adequately addressed all the relevant technical
issues or that this reactivity-based regulation is appropriate at this
time." The commenter notes that EPA must adequately (and accurately)
account for the differences in the various environmental conditions (and
resulting variations in VOC behavior) throughout the United States. The
commenter stated that the complexity of the interactions of VOC in the
ambient air makes it extremely difficult to accurately predict the
actual VOC forming capacity of a chemical compound. The commenter stated
that "assuming an essentially uniform "reactivity" for a compound used
in any coating product anywhere in the country presents the potential
for an inaccurate assessment of the actual VOC-related effects of the
product nationwide." The commenter further stated that "EPA's
half-hearted assertion in the proposed rule that its scientific
understanding of VOC reactivity has evolved sufficiently to allow it to
reliably and accurately predict the behavior of individual species of
VOC in a regulatory context is far from unequivocal."

Another commenter (FF) had a different position and asserted that:

> Controlling VOC emissions from coatings and consumer products based on
> photochemical reactivity is a scientifically sound and appropriate
> means of addressing ozone formation potential. There can be enormous
> differences in the capacity of various VOCs to react in the atmosphere
> to form tropospheric ozone. As reflected in EPA\'s proposal,
> scientific research shows that photochemical reactivity has a more
> direct correlation to the ozone-forming potential (i.e. potential air
> quality impacts) of VOC emissions than does a simple mass-based
> measure of emissions. The impact of mass-based VOC emissions
> reductions on ozone formation potential is uncertain and can vary
> greatly depending on the VOC substitution decisions made to meet
> specific mass limits. Reactivity-base VOC emissions limits, by
> considering the rate and mechanism of photo oxidation in the
> troposphere, are reflective of the actual processes that lead to ozone
> formation. Relative photochemical reactivity thus provides a more
> rigorous scientific approach to assessing an individual compound\'s
> potential contribution to ozone accumulation than does consideration
> of its mass alone.

Accordingly, the commenter (FF) concluded that EPA\'s approach is
scientifically sound and represents a significant step forward in
aerosol coatings regulation.

**Response:** EPA acknowledges the difficulty in assessing reactivity in
widely different environmental conditions. As noted in the proposal, a
compound's reactivity can depend on the VOC:NO~x~ ratio, meteorological
conditions, and the mix of other VOCs. Many different methods have been
suggested for measuring the reactivity of individual compounds. EPA has
chosen the maximum incremental reactivity (MIR) scale, which is an ozone
yield scale derived by adjusting the NOx emissions in a base case
simulation to yield the highest incremental reactivity of the base
reactive organic gas mixture. These are environmental conditions where
ozone production is most sensitive to changes in VOC emissions and,
therefore, where VOC controls would be most effective. These tend to
reflect conditions in or near urban areas where VOC emissions are most
likely to produce ozone, and thus EPA believes the MIR scale is the most
appropriate for regulatory purposes (see also Carter, 1994). Research
conducted under the auspices of the Reactivity Research Working Group
(RRWG) has shown good correlation between the MIR scale and other
reactivity scales, including those computed with photochemical airshed
models (refs). Also, this research has supported the nationwide
applicability of reactivity scales, and the peer reviews of the RRWG
reports have specifically supported the use of the MIR scale for a
nationwide aerosol coatings regulation (see docket). For more detail,
refer to the proposal (72 FR 38952). As noted above, EPA will continue
to invest and participate in research into VOC chemistry and the use of
reactivity measures. Thus EPA recognizes the concerns of the first
commenter but believes that the reactivity concept and the MIR scale
provide an adequate basis for this regulation. EPA agrees with the
second commenter.

3.  **Particulate Matter, Stratospheric Ozone, and Toxic Impacts**

**Comment:** Three commenters (AA, DD, and GG) stated that EPA must
consider the potential for VOCs to increase the aerosol fraction of
measured ambient PM~2.5~. One of the commenters (AA) also cited concerns
with stratospheric ozone depleters.

One commenter (AA) said that EPA should consider "negative co-effects"
of the rule on fine particulate matter, "especially given the potential
for increase in emissions of low reactive VOCs on a mass-basis and the
impact this may have on the primary organic aerosol emissions and
secondary organic aerosol formation." The commenter (AA) stated that
this would be even more important in the near future, as the PM~2.5~
NAAQS is revised and given the fact that PM~2.5~ nonattainment of
coincident with ozone nonattainment in many areas in the country. The
commenter concluded that EPA must look at the impacts of increasing low
reactive VOCs on PM~2.5~ before establishing a regulatory framework that
encourages substitution. The commenter referenced a document to support
his position, a June 2007 Columbia Geosciences report to NARSTO, titled
"The Reactivity Research Working Group."

Another commenter (DD) stated that EPA:

> needs to address the issue of organic aerosols (both primary organic
> aerosols (POA) and secondary organic aerosols (SOA)) is much more
> important, relevant, and timely compared to what was discussed in the
> Reactivity Research Workgroup (RRWG) process (1998-2005), which forms
> the scientific basis of the proposed EPA rule. The RRWG process only
> emphasized the ozone-forming potential of VOCs. Any final rule
> therefore must consider its impact on the organic aerosol fraction of
> measured ambient PM2.5 (and the resulting policy issue of
> nonattainment of daily and annual PM~2.5~ standards). For example,
> ambient measurements of PM2.5 in urban areas across the country,
> including the Northeast, indicate that approximately 50 percent of
> PM~2.5~ mass on an annual basis is organic aerosol that is either
> emitted as POA (directly emitted) or SOA that is formed in the air
> through complex chemical reactions of VOCs. Recent ground-breaking
> work of the research team at Carnegie Mellon University \["Rethinking
> Organic Aerosols: Semivolatile Emissions and Photochemical Aging,"
> Allen L Robinson, et al., Science, Vol 315, pp. 1259-1262 (March 2,
> 2007).\], strongly implies that ozone-only regulations may need to be
> revised to control SVOC (semivolatile VOC) and IVOC (intermediate
> volatility VOC) emissions because of their importance as SOA
> precursors. The paper goes on to state, "Ultimately a relatively local
> urban emissions \[of VOCs\] problem is transformed into a regional
> source of oxidized...... organic aerosol." Just as some VOCs have
> higher/lower potential to form ozone than other VOCs, some VOCs are
> capable of producing higher/lower levels of organic aerosols than
> others. Based on high and low ozone-forming potential of VOCs, as well
> as high and low aerosol-forming potential of VOCs, the proposed rule
> needs to categorize various VOCs in "high ozone-high aerosol," "low
> ozone-low aerosol," "high ozone-low aerosol," and "low ozone-high
> aerosol" bins. Thus, the ozone reactivity factors included in the
> proposed rule need to be supplemented with aerosol reactivity factors,
> so as to jointly address the impact of this or similar rules on ozone
> and fine PM. In the absence of such an effort, the proposed ozone
> reactivity-based rule has the potential to increase the fine PM levels
> for cases where the substituted VOCs have high aerosol-forming
> potential even though they have low ozone-forming potential based on
> ozone-only reactivity factors included in Table 2A of the Proposal.

One commenter (AA) also noted that the table of reactivity factors also
includes compounds that have been banned under Title VI of the CAA
because they are considered stratospheric ozone depleters.

**Response:** With respect to the commenter's concerns about HAP
emissions from aerosol coatings, EPA notes that section 183(e) only
provides the Agency with authority to regulate VOC emissions from
consumer and commercial products for purposes of reducing ozone
nonattainment. Other provisions of the Act, such as section 112, provide
the statutory mechanism for reduction of HAP emissions. Thus, although
EPA shares the concerns of the commenter about unnecessary exposure to
HAPs, the Agency does not have authority like that of the State of
California to restrict or ban the use of specific HAPs as ingredients in
aerosol coatings. Nevertheless, EPA believes that sufficiently stringent
limits can have the beneficial effect of reducing the use of certain
HAPs such as toluene and benzene. Because these compounds are highly
reactive, the limits of the final rule will serve to restrict the use of
these compounds as ingredients in aerosol coatings as a practical
matter.

In reference to the comment concerning compounds included in Table 2A
that are banned under Title VI, EPA is clarifying that the compounds
listed on Tables 2A, 2B, and 2C are not a list of compounds approved for
use in aerosols. On the contrary, they are merely a list of compounds
for which we have relative reactivity factors. Therefore, if a compound
has been banned ban Title VI, or banned for use for any other reason,
they cannot be used, regardless of whether or not they appear on any
tables within this rule.

**Comment:** Four commenters (AA, DD, GG, KK) stated that it appeared
that EPA did not consider the toxicity of the chemicals in proposal and
mentioned several specific examples of chemicals that were on the list
of MIR values in the proposal that were of particular concern to the
commenters. One commenter (AA) noted that proposed Table 2 listed the
compounds, without any mention of whether the compound is a HAP or other
toxic compound, even though the list contains known HAPs with good
toxicity information/databases and health-based exposure values for
those without toxicity values. Three commenters (AA, DD, and KK) listed
specific examples of hazardous pollutants, including benzene (with a
reactivity factor of 0.81) and diisocyanates (with reactivity factors
ranging from 0 to 0.93). One commenter (KK) pointed to the example of
benzene (with an RF of 0.81), toluene (with an RF of 3.97), and m-xylene
(with an RF of 10.6). The latter commenter stated that, based on the RF
factors, manufacturers may "prefer" benzene for their ingredient, even
though toxicological studies have proven that benzene is more toxic than
other compounds. One commenter (AA) concluded that EPA overlooked the
fact that all VOCs are not equal when it comes toxic potential. One
commenter (DD) suggested that EPA consider a substitution protocol for
VOCs that can include "low to high" toxicity in addition to low to high
potential for ozone formation.

**Response**: EPA is aware that many VOCs are also HAPs. Nevertheless,
EPA notes that section 183(e) only provide the Agency with authority to
regulate VOC emissions from consumer and commercial products for
purposes of reducing ozone nonattainment. Other provisions of the Act,
such as section 112, provide the statutory mechanism for reduction of
HAP emissions. Thus, although EPA shares the concerns of the commenters
about unnecessary exposure to HAPs from consumer products, EPA does not
have authority like that of the State of California to ban the use of
specific HAPs as ingredients in aerosol coatings. Nevertheless, EPA
believes that sufficiently stringent limits can have the beneficial
effect of reducing the use of certain HAPs such as toluene and benzene.
Because these compounds are highly reactive relative to other VOCs, the
limits of the final rule will serve to restrict the use of these
compounds as ingredients in aerosol coatings as a practical matter.

**Comment:** Three commenters (BB, CC, and HH) provided input on the
specific comment request concerning the role of HAP in the determination
of BAC, including the potential for a voluntary program. One commenter
(BB) stated that they are opposed to direct consideration of HAP in a
VOC regulation. However, they point out that HAP reduction has been an
indirect benefit of the reactivity-based regulation in California, since
most HAP have high reactivity. Another commenter (CC) noted that many of
the primary industrial coatings that are packaged as aerosol coatings
are already subject to VOC and/or HAP content limits under other EPA,
state, and local regulations that are applicable to surface coatings and
surface coating operations. In these cases, the coating manufacturers
and formulators have already reduced VOC and HAP content to required
levels, which often represent the lowest amounts practicable. The
commenter believes that any additional approaches to address the HAP
emissions from aerosol coatings, including the use of a voluntary
program, would be redundant.

One commenter (HH) stated that it would be "inappropriate and
unnecessary for EPA to adopt or implement measures (voluntary or
otherwise) to control the increased use of hazardous air pollutants
(HAPs) like the chlorinated solvents as alternatives to solvents with
higher maximum individual reactivity (MIR) values in aerosol coatings."
The commenter stated that EPA has no statutory authority to implement a
voluntary program intended to reduce the use of HAPs in aerosol product
formulation.

The commenter (HH) went on to discuss that there were several other
programs that appropriately addressed specific hazardous pollutants,
including:

-   Section 112 of the Clean Air Act, which "provides a comprehensive
    framework for the regulation of HAPs."

-   The Federal Hazardous Substances Act, which requires specific
    labeling of products containing products that it classifies as
    "hazardous substances." The commenter stated that products
    containing the specific pollutant of concern listed by EPA in the
    preamble, methylene chloride, were determined to be hazardous
    substances. Therefore, these products must contain specific warning
    labels. Therefore, addition labeling or other requirements
    (voluntary or mandatory) should not be required.

-   Another potential solvent of concern, due to its low reactivity
    factor, could be perchloroethylene. However, the commenter stated
    that perchloroethylene has "relative low volatility that may not be
    advantageous in some aerosol coating formulations."

-   Multiple solvents are also subject to labeling requirements under
    California's Proposition 65. Since many coatings that are formulated
    (and labeled) to meet California's requirements are sold nationwide,
    these products have additional labels in place.

The commenter (HH) concluded that no additional program is warranted.

**Response:** EPA concurs with the commenters and is not promulgating
any voluntary HAP reduction program at this time. Existing programs
appear to be sufficient to help ensure that the unwanted outcome of
increased toxicity of aerosol coating products is sufficiently
mitigated. EPA reserves the right to revisit the potential for such a
program, for this or another reactivity-based rulemaking, at a later
date.

4.  **Regulated entity and Small Business Exemption**

**Comment**: Two commenters (CC, JJ) requested changes to definitions to
ensure that the applicability of the aerosol coating rule was clear. One
commenter (CC) stated that the definition of "manufacturer" in §59.503
refers to manufacturers of consumer products. However, other parts of
the proposed rule refer to manufacturers of aerosol coatings not limited
to consumer products. The commenter requests that EPA clarify the
definition of "manufacturer" and use it consistently throughout the
document. One commenter (JJ) was concerned that the definition of
aerosol coating products could be interpreted to include products that
are also subject to regulation under the national consumer product rule.
The commenter noted that CARB is considering the same overlap issues but
has not yet reached a conclusion on the best way to address the overlap.
The commenter stated that many aerosol consumer products function by
applying a coating on a surface and that of those "coatings" many also
could fit the undefined terms of "pigments or resins." The commenter
listed two categories that are most likely to overlap with consumer
products:

> *Clear Coating* means a coating which is colorless, containing resins
> but no pigments except flatting agents, and is designed and labeled to
> form a transparent or translucent solid film.
>
> *Vinyl/Fabric/Leather/Polycarbonate Coating* means a coating designed
> and labeled exclusively to coat vinyl, fabric, leather, or
> polycarbonate substrates or to coat flexible substrates including
> rubber or thermoplastic substrates.

The commenter (JJ) noted that many regulated consumer products, such as
furniture polishes and automobile polishes, apply a clear coating and
could be interpreted to be subject to this regulation. Similarly, a
broad range of products, including rubber and vinyl protectants,
footwear care products, and fabric protectors could be interpreted as
being subject to the aerosol coating regulation as a
vinyl/fabric/leather/polycarbonate coating. The commenter asked that EPA
consider adding a statement to the definition of "aerosol coating
product" that clearly states that a product should not be subject to
both the consumer product and aerosol coating regulations. The commenter
suggested the statement say," Products defined as consumer products and
subject to VOC limits in the national consumer products regulation are
not considered aerosol coating products."

**Response:** EPA has revised the definition of manufacturer, as well as
several other terms, to clarify the intent of this rulemaking. The words
"consumer products" in the definition of "manufacturer" has been
corrected to "aerosol coating products."

EPA agrees with the commenter that there is a potential overlap issue
with the consumer products rule. Like CARB, we are continuing to
evaluate the potential overlap between the aerosol coatings rule and the
consumer products rule. It is EPA's intention that no product should be
subject to both rules. EPA currently is developing proposed amendments
to the national consumer products rule at 40 CFR 59 subpart C and
intends to address this overlap issue when the regulation for consumer
products is proposed.

**Comment:** One commenter (BB) requested clarification on the
applicability of this rule to any aerosol coatings that are registered
under FIFRA.

**Response:** EPA is providing a one year extension to the January 1,
2009 compliance date for all coatings that must be registered under the
Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C section
136-136y)(FIFRA). This is identical to the extension provided to
FIFRA-registered compounds in another regulation under §183(e) of the
CAA, the national regulation for consumer products (63 FR 48819). This
additional time is provided because to the time needed for registration
of products under FIFRA. Therefore, the compliance date for aerosol
coating products that must be registered under FIFRA is January 1, 2010.

**Comment:** Two commenters (CC, KK) commented on the requirement to
report all VOC ingredients in a coating at or above 0.1 weight percent.
One commenter (CC) noted that the proposed rulemaking includes numerous
references to "0.1 percent by weight," which relate to the definition of
"weight fraction," defined in §59.503 as the "weight of an ingredient
divided by the total weight of the product, expressed to thousandths of
a gram of ingredient per gram of product (excluding container and
packaging)." While the commenter notes that the metric and quantity
thresholds are taken from the CARB Aerosol rule, the commenter wanted to
point out several potential difficulties, including:

-   Product composition information required by other EPA regulations
    (notably the NESHAPS MACT standards) use the thresholds in the OSHA
    Hazard Communication Standard (i.e., 1.0 percent by weight for most
    ingredients, and 0.1% by weight for substances identified as
    carcinogens, or "1.0 / 0.1 percent by weight" thresholds). To
    require companies to record and track the composition of ALL organic
    compounds in aerosol coating formulations to 0.1% by weight
    represents a potential major increase in time and effort.

-   The use of the proposed 0.1 percent by weight threshold for all
    organic compounds is a major divergence from recordkeeping and
    reporting requirements for product/material compositions in EPA's
    existing air program policies and rules.

-   The definition of "Impurity" uses the "1.0 / 0.1 percent by weight"
    thresholds cited above. Thus, it directly contradicts the proposed
    0.1 percent by weight threshold for all organic compounds.

-   Suppliers of raw materials to the coating industry have no
    regulatory obligation to report the presence of ingredients below
    the composition thresholds cited above. Thus, a manufacturer of
    aerosol coatings may be unaware that a raw material contains
    ingredients below the "1.0 / 0.1 percent by weight" thresholds,
    whether those ingredients are organic compounds, impurities, etc.

-   Most aerosol coating formulations will include a relative handful of
    organic compounds, that function as solvents and propellants, and
    that will be present in amounts of single numbers to tens of percent
    by weight. Using the individual Reactivity Factors of these major
    constituents to calculate the Product Weighted Reactivity will
    outweigh any calculated effects of the individual Reactivity Factors
    of the minor constituents.

The commenter requested that the definition of "weight fraction" and
related references in the proposed rule be revised to reflect the
"1.0/0.1 percent by weight" thresholds from the OSHA Hazard
Communication Standard, and to be consistent with product composition
information in other EPA regulations.

One commenter (KK) stated that EPA must further justify this requirement
since Trade Barrier Treaty requires that, "a Member preparing, adopting
or applying a technical regulation which may have a significant effect
on trade of other member shall, upon request of another Member explain
the justification for that technical regulation in terms of the
provisions of paragraph 2 to 4." They concluded that a scientific basis
should be provided "and avoid unnecessary technical barriers to the
trade of related products."

**Response:** EPA acknowledges that there are several regulations and
programs that differentiate between carcinogens and non-carcinogens in
establishing reporting levels. However, for the purposes of this
regulation, EPA has concluded that reporting all volatile ingredients
that are present at or above 0.1 weight percent is the best approach to
ensuring that all volatile ingredients are accounted for in the
calculations. When calculating the contribution to ozone, there is no
justification for differentiating between those compounds that are
carcinogens and those that are not. Therefore, no changes were made the
reporting level in the final regulation.

Commenter KK did not explain how the requirement to report all
ingredients present at concentrations greater than or equal to 0.1 would
create a trade barrier. All products sold in the United States, whether
foreign or domestically manufactured, are subject to these same limits.
Therefore, EPA disagrees that a barrier is created by this action.

**Comment:** Four commenters (AA, BB, CC, and KK) provided input on the
exemption for small quantity generators. One commenter (CC) stated that,
while they cannot comment on the need at very small manufacturers, they
wanted to comment on specific situations that may exist at larger
companies. The commenter stated:

> However, we note that sometimes industrial end-use customers will
> specify that, in addition to their primary order for a coating in
> liquid form and in large containers (e.g., pails, drums, totes), that
> a small number (typically fewer than a dozen) of aerosol containers of
> the same product will also be provided. The aerosol containers of the
> primary coating product are used by the customer to touch-up or repair
> minor defects that occur in their production facilities after an
> article or part has been painted with the primary coating. The amount
> of product thus packaged, the number of aerosol containers, and the
> resultant emissions, (whether described by VOC or PWR metrics) are
> insignificant in comparison to the primary coating product. However,
> the recordkeeping requirements for these few containers of aerosol
> coatings would be the same as for the conventional aerosol coatings.
> This is unduly burdensome.

The commenter (CC) requested that EPA provide an exemption from the rule
for very small fill-offs of aerosol coatings. The commented stated that
such an exemption could be structured as a finite number, such as "fewer
than one dozen containers of a specific aerosol coating product per
year." Two commenters (AA, BB) were concerned about the potential
economic advantage created by the small quantity exemptions. One
commenter (AA) stated that the exemption for small generators at a
competitive advantage which they could "readily use" to expand market
share. Another commenter (BB) stated that they were unable to support a
proposal that specifically exempts manufacturers of certain products
from regulatory requirements unless the exemption us available to all
manufacturers of that type of product. The commenter (BB) is concerned
"with the anti-trust ramifications for any regulatory exemptions that
create a more beneficial regulatory climate for the products of one
manufacturer, but not another.

One commenter (KK) questioned the "reasonability" of the 7500 kg
exemption for small quantity manufacturers and also questioned, based on
the definition of "manufacturers," whether the exemption applied to
importers.

**Response:** EPA considered, but rejected, extending this small
quantity manufacturer exemption. The small quantity manufacturer was
established with the primary focus of small businesses that may make a
small quantity of aerosol coatings. Since small businesses do not always
do business across the country, EPA concluded that it was possible that
some may not have previously been exposed to the reactivity-based
requirements in California. While we have included the costs of
developing reformulated products in the cost assessment of this rule, we
also recognize that the average cost (i.e., on a "per can" basis) would
be higher for a company producing a smaller product line. Recognizing
this, we established this size cutoff to exempt those most likely to
experience the highest per-can reformulation costs.

EPA does not concur with the commenter concerns that the small quantity
manufacturer exemption creates a competitive advantage or antitrust
issues. The total mass of VOC in the exemption (7500 kg) represents less
than 0.01 percent of the total VOC used in aerosol coatings (based on
the 1990 survey). Even adjusting for emission reductions that have
occurred since 1990, the mass for this exemption would remain well below
one percent of the market. We disagree that this small piece of the
total aerosol coating market could give anyone a competitive advantage.

EPA also does not agree that creation of the exemption for small
quantity manufacturers creates an antitrust issue. Such issues generally
arise where members of an industry collude to create unfair market
advantage, as by agreeing not to compete on prices for their respective
products. EPA, in its capacity as government regulator, can promulgate
regulations with features such as exemptions for certain members of an
industry without violation of the applicable statutes and regulations
pertaining to antitrust issues. Moreover, EPA is obligated to take the
specific concerns of small entities into account in the regulatory
process and, where appropriate, to provide mechanisms such as exemptions
in order to mitigate disproportionate and unnecessary impacts upon small
businesses. In the case of this regulation, EPA has determined that it
is appropriate to provide an exemption of this type because it will
permit the implementation of a rule that will achieve significant VOC
emission reductions across the industry as a whole and the percentage of
emissions reductions that will be foregone by virtue of the exemption
are anticipated to be *de minimis*.

The 7500 kg exemption for small quantity manufacturers is not available
to importers or distributors, because the burden of reformulation is not
placed on them. The purpose of this exemption was to provide relief to
very small generators of aerosol coatings who might be adversely
affected by reformulation costs. EPA has concluded that distributors and
importers would not have this cost, therefore do not qualify for the
exemption. The definition of "manufacturer" has been modified to clarify
this intent. Language has been provided in the rulemaking package for
foreign manufacturers of aerosol coating who may want to pursue this
exemption. As discussed above, this exemption represents an extremely
small fraction of the total aerosol market. EPA does not agree that this
could potentially cause a "significant effect on trade."

4.  **Compliance Demonstration Requirements and Enforcement**

**Comment**: One commenter (AA) stated that, if EPA includes the small
manufacturer exemption in the final rule, it should include language
that reflects that these small entities should provided the information
on a chemical basis, CAS number, in addition to mass-based information.
The commenter believes that EPA should "understand the nature of the
products it exempts, as well as those it regulates.

**Response**: EPA agrees with this commenter. In order to be able to
implement the rule and to assess its impacts more effectively, EPA has
concluded that it is appropriate to require all regulated entities,
including those that are exempt from the PWR limits of the rule on the
basis that they are small quantity manufacturers, to provide EPA with
information about the formulation of their products and other
information needed by the Agency. Accordingly, all regulated entities,
including those that qualify for the exemption provided in §59.501(e),
are required to comply with the recordkeeping requirements of §59.510
and to submit to EPA those reports required in §59.511.

**Comment:** Two commenters (BB, CC) stated that the ongoing "notice of
change" reports, required within 30 days if any change in contact
information changes, is problematic. Both commenters noted that items
that trigger reporting requirement, such as the name, title, address,
telephone number, and email address of the certifying official could
change rapidly. The commenters further stated that, in some instances,
the person responsible for compliance with this regulation may not even
know that there has been a change in the street address of all
facilities or the telephone number of the person certifying compliance.
One commenter (BB) concluded that the requirement to submit a follow-up
report is unreasonable and that many companies will not be able to
comply with this. The commenter (BB) concluded that any change could be
noted by a facility during the data request period. The commenter
requested that the "notice of change" requirement be eliminated. The
other commenter (CC) noted that the 30 day timeframe for the report was
unreasonable and requested that, if the requirement for the "notice of
change" report is included in the final rule, the timing be extended to
60 days.

**Response:** In order to enforce this rule, EPA must have correct
contact information for those individuals who are responsible for
compliance. EPA does not agree that the information in the Initial
Notification is likely to change frequently. However, if this
information is subject to rapid change, the commenter's own words
demonstrate why this "notice of change" report is needed. It is
imperative that the person responsible for compliance with this rule is
immediately aware of changes in addresses and products manufactured.
This "notice of change" report will necessitate that communication.

We do not expect that a regulated entity will frequently change the
mailing address of a plant, the phone number for the plant, or even the
categories of coatings that they manufacture. For example, the main
number to a facility would likely stay the same because the number would
be frequently used by customers.

We do not agree that waiting until a data request (i.e., for detailed
formulation data) is received before updating the information is
appropriate. This would only slow the process; if an address had
changed, EPA may be unable to get the address to the proper person,
needlessly delaying compliance efforts. We maintain that a revised
notification of change within 30 days is necessary and not overly
burdensome. Therefore, this requirement has not been changed in the
final rule.

**Comment**: One commenter (CC) questioned the value of including a
description of how a batch will be defined in the Initial Notification.
The commenter stated that

> . . . the manufacture of a coating is a batch manufacturing process;
> the fill-off of part or all of a batch of coating into aerosol
> containers is another batch process; some of these containers may
> receive different labels, and each different group of labeled
> containers might be considered a different batch. It will be very
> difficult to define or describe "batch" in terms sufficiently general
> to cover any or all of the possible stages in the overall process of
> manufacturing an aerosol coating product. For purposes of
> demonstrating compliance with an applicable limit, it is important to
> both the company and the Agency for the company to have the ability to
> trace a given aerosol coating container back to the formulation
> information of its primary coating and the fill-off information of its
> propellant, for purposes of calculating the Product Weighted
> Reactivity. This can be done without the necessity of providing a
> description or definition of "batch" on the Initial Notification
> Report.

**Response:** Enforcement of this rule is dependent on the ability to
match formulation data for a specific batch to the product being
evaluated. The commenter's own statement demonstrates the potential for
numerous definitions of batch and clearly demonstrates why it is
important that EPA know how the facility is defining batch for the
purposes of their compliance demonstration. The commenter did not
provide a clear alternative for how this would happen without defining
batch. The only alternative would be for EPA to develop one single
definition for batch that would be applicable to all regulated entities.
Commenters own statements demonstrate how one definition would be
difficult. We contend that, even if one definition were possible, it
would be needlessly restrictive. EPA concluded that the flexibility to
define batch for each manufacturer is critical to ensuring the maximum
flexibility of this rule, while ensuring compliance can be verified.
Therefore, there is no change to this requirement in final rule.

**Comment**: Four commenters (AA, BB, CC, and II) questioned EPA's
requirement to maintain records for five years. One commenter (AA)
questioned how EPA determined the adequate length of time for retaining
records. The commenter questioned whether EPA had determined how long a
product would remain on a shelf and questioned whether five years were
sufficient. Two commenters (BB, CC) stated that the five year time
period was too long and would result in the warehousing of data. These
commenters stated that many companies have internal recordkeeping
policies that require the maintenance of records for a certain period of
time, generally ranging from two to four years. One commenter (CC)
stated that most aerosol coating products "will proceed through the
lifecycle of manufacture of coating, fill-off into aerosol containers,
distribution and sales, etc." The commenter further stated that
distributors and end-use customers try to minimize the time between
purchase and use of the coatings and will also be cognizant of
shelf-life recommendations made by the manufacturers of these products.
The commenters requested that the time period be made more reasonable,
not to exceed three years. One commenter (II) stated that EPA must
require that all records be maintained for a minimum of five years, the
statute of limitations applicable to enforcement claims under the Clean
Air Act.

**Response:** We agree with the commenters who state that five years is
the minimum time that records should be maintained. This does correlate
to the statute of limitations, as mentioned by the commenters, and also
matches the requirements under Title V of the CAA for major sources. We
maintain that this time period is necessary and appropriate since EPA
may need to retrieve records of formulation over time when assessing
compliance. While some commenters stated that various manufacturers
could have different internal policies for maintaining records, the
purpose of this rule is to specify requirements appropriate to this
rulemaking, not necessarily to conform to existing practices of all
regulated entities. We also understand that the five year retention time
could lead to warehousing of information. Warehousing of information is
acceptable as long as the facility can meet the requirements that the
"records must be in a form suitable and readily available for inspection
and review," as required by the revised regulatory language.

**Comment:** Two commenters (BB, CC) requested that the time period for
data requests for specific data \[in §59.511(c)(1)-(5)\] be extended
from 60 to 90 days. While the commenters had no concerns over the type
of information that is requested (brand name of products, copies of
labels, owner of trademark or brand names, product category, and product
formulation data), the commenters were concerned that the 60 days was
not sufficient time. The commenters requested that 90 days be provided,
which would be consistent with the CARB regulation.

**Response:** The ability to enforce this regulation in a timely manner
is critical. In addition, the requirement to respond to public requests
for emissions data is also critical. As discussed elsewhere in this
section, EPA has worked to balance the requirements for all record
keeping and reporting with the need to ensure compliance and respond to
the public. We considered, but rejected, requiring all formulation data
to be provided on an annual basis. The commenters provided no clear
reasons as to why 60 days was inappropriate, other than the fact that
CARB provides 90 days for these submissions. We did not find this
justification sufficient to change from 60 days and continue to believe
that 60 offers sufficient time and does not needlessly delay the
availability of the information to EPA or the public. Therefore, this
requirement was not changed in the final rule.

> **Comment:** Two commenters (BB, CC) were concerned that the proposed
> rule needlessly required changes to existing product tracking systems.
> One commenter (BB) questioned the need for EPA-provided category codes
> contained in Table 1. They believe that the codes are problematic and
> will lead to confusion and additional labeling concerns since, due to
> the date-coding requirements in the CARB rule, manufacturers have
> already created codes that have been in use since the mid-90s. They
> said that EPA-provided codes would require "changes in software
> programs, labeling text, and other recordkeeping practices." The
> commenter requested that these codes be removed and that the regulated
> entity be required to provide the category code at the same time they
> explain their date code system. The commenter provided the CARB
> language as an example:
>
> For any aerosol coating products subject to section
>
> 94522(a), if the manufacturer or responsible party uses a code
> indicating the date of manufacture or an abbreviation of the coating
> category as defined in section 94521, an explanation of the code or
> abbreviation must be filed with the Executive Officer prior to the use
> of the code or abbreviation.

Another commenter (CC) noted that each company has its own internal
procedures and tools for maintaining information relating to product
formulation, manufacturing of coatings, fill-off into aerosol
containers, distribution and sales, etc. The commenter noted that the
various date coding systems are just one example of the diversity of
individual approaches that have already been implemented by
manufacturers, importers, and distributors. The commenter stated that,
"insofar as these existing internal procedures and tools will enable the
company to provide required or requested information described in the
proposed rulemaking, that no changes or modifications to these existing
procedures and tools should be necessary or mandated.

**Response:** The inclusion of the category codes in Table 1 were meant
to simplify the compliance demonstration for regulated entities, not
complicate it. We understand that regulated entities, particularly those
subject to the CARB regulation, would likely have category codes already
established for their products that may differ from the ones listed in
Table 1 of the regulation. To require regulated entities to switch to
the ones listed in the proposal could create a burden with no
environmental benefit. Therefore, the final rule language has been
changed to offer the category codes in Table 1 as "default codes," but
to allow a regulated entity to use their own coding system, as long as
this system is explained in the Initial Notification.

**Comment:** Two commenters (BB, CC) requested clarification on the
definition of "regulated entities." One commenter (BB) provided six
different scenarios of combinations of formulators, the name on the
label, manufacturer, and distributor and requested that it be made clear
who has the responsibility to maintain records and submit reports in
each case. The commenters (BB, CC) stated that in some instances, the
person who may be responsible for maintaining some information may not
have access to some required information. For example, a manufacturer
who uses a filler to fill the aerosol may not have access to the batch
information, even if the manufacturer owns the formula. In addition, in
a private label situation, manufacturers may not know the date-code
information for its product. The commenter (BB) requests that the
proposal be modified to make it clear that the "regulated entity" is the
company, firm, or establishment that is listed on the product's label.
The commenter further requested that, if the label names two companies,
firms, or establishments, the rule make it clear that the entity
responsible for maintaining the information is the entity that the
product was "manufactured for" or "distributed by", as noted on the
label.

**Response:** EPA has revised the language in the final rule to clearly
indicate which regulated entity is responsible for compliance with each
part of the final rule. The manufacturer or importer is the regulated
entity for purposes of ensuring that the contents of the aerosol can are
at or below the product weighted reactivity limits in the rule. This is
true regardless of whether or not their name appears on the can. The
labeling, record keeping, and reporting requirements are the
responsibility of the distributor named on the can. If no distributor is
named on the can, then the manufacturer or importer is the regulated
entity for all requirements, regardless of whether or not their name is
on the can.

EPA is aware from comments on both this rule and the previously
promulgated Consumer Products rule that there is sometimes a concern
that the distributor named on the can might not have access to all of
the information required for demonstrating compliance with the
recordkeeping and reporting requirements. Therefore, we have added
provisions to the final regulation that allow a manufacturer or importer
to become a "certifying manufacturer." By submitting a letter to the
appropriate EPA Regional Office, a manufacturer or importer can assume
the responsibility for all or part of the requirements of the rule that
would otherwise be applicable to the distributor. The letter must
clearly indicate which requirements the manufacturer will assume
responsibility for and which will remain the responsibility of the
distributor. No requirements can be left out of this certification
letter. Once the letter has been submitted, the manufacturer or importer
assumes the compliance liability of the distributor. The certifying
manufacturer has the ability to revoke its responsibilities at any time
by submitting a letter to both the appropriate EPA Regional Office,
providing a 90 day notification period. At the end of the 90 days, the
distributor named on the can becomes the regulated entity for all
applicable requirements.

**Comment:** One commenter (CC) questioned the value of including the
"signature of certifying company official" on the Initial Notification.
The commenter stated that, if non-compliant products are identified in
the marketplace, the manufacturer would be "found in non-compliance and
dealt with accordingly." The commenter stated that it is the
responsibility of each manufacturer to know the law and comply with it
and the signature of certification and the certification statement are
an added administrative burden to both the Agency and the company. The
commenter further questioned whether a new certification statement would
be needed if the name or title of the certifying official changed.

**Response**: EPA maintains that the signature of the certifying
official is an important aspect of the Initial Notification and this
requirement remains in the final rule. This signature ensures that
responsibility for compliance with the regulation is clearly assigned
and also ensures that the responsible official has read and approved the
submittal to EPA. Under the promulgated rule (as under the proposed
rule), a new notification is required if any information in the Initial
Notification (such as contact information or addresses) has changed. A
new notification is also required if the regulated entity begins
producing coatings in a new category under this rule. Each notification
is subject to the requirement for a signature of the responsible
official, again to ensure that responsibility is assigned and that the
responsible official is aware of the revised submittal.

**Comment:** One commenter (KK) expressed concern about the requirement
in proposed section §59.511(c)(5) that regulated entities must provide
formulation data to EPA upon request that includes the PWR and weight
fraction of all ingredients in an aerosol coatings product, including
water, solids, each VOC present in an amount greater than 0.1 percent,
and any compounds assigned a reactivity value of zero. The commenter
asserted that such a requirement would be "unfavorable to the protection
of intellectual property rights and commercial secrets for the
manufacturers." They suggested that EPA only require information about
the VOC ingredients in the products, stating that that this information
would be sufficient for effective implementation of the rule.

**Response:** EPA disagrees with this commenter. EPA has determined that
the Agency should have the ability to request information about non-VOC
portion of the product formulations in order to facilitate effective
implementation of this rule. Because the limits of the final rule are
based upon the weight of ozone produced per weight of product, the
non-VOC portion must be known to facilitate this calculation. EPA
emphasizes, however, that the Agency is not requiring regulated entities
to provide speciated information about the individual ingredient in the
non-VOC portion of the product formulation, as all compounds with a
reactivity of "zero" are grouped in the compliance calculations of
§59.505. EPA has clarified the language in §59.511(d)(5) of the rule to
state that "water, **total** solids, ...and any **other** compounds
assigned a reactivity factor of zero..." (new words **bolded**).

EPA has made these clarifications to the final rule in order to preserve
a manufacturer's confidential business information about the specific
ingredients in an aerosol coatings formulation to the extent consistent
with the requirements of the CAA. Given the relative reactivity basis
for the final rule, detailed information about the composition of
coatings subject to the rule is "emissions data" under section 114 of
the CAA, and EPA's regulatory definition of such term in 40 CFR
§2.301(a)(2)(i). As such, this information is required by law to be
available to the public, regardless of whether EPA obtains the emissions
data by request or by a report required under this rule. Thus,
§59.516(c) of the final rule provides that information in reports
required under the regulation are not eligible for treatment as
confidential business information under 40 CFR part 2. EPA notes that
the reporting provisions of §59.511 do not preclude EPA from obtaining
more detailed information about the individual non-VOC ingredients in
products through other means, such as through inspections or requests
for information pursuant to section 114 of the CAA; provided, however,
that in such circumstances information that does not constitute
emissions data would be eligible for treatment as confidential business
information, in accordance with 40 CFR part 2 as appropriate. Therefore,
section §59.511(d)(5) of the final rule maintains the requirement
contemplated in proposed section §59.511(c)(5) that regulated entities
provide detailed information about aerosol coatings formulations upon
request by EPA. This provision is applicable to all regulated entities
under the rule.

**Comment:** One commenter (KK) stated that it was unreasonable that a
VOC not listed on Tables 2A, 2B, or 2C be assigned an RF factor of
22.04. They stated that this is\
"evidently unfair for manufacturers who develop green new components."
The commenter suggested that the section be changed to "improve
preciseness and rationality of the rule."

**Response:** The maximum RF factor is used to ensure that the
environment is protected from ozone that may be produced by a new,
previously unstudied, compound. However, the rule does allow anyone to
petition EPA for an RF value, if the petitioner provides sufficient data
to justify this value. The provision is necessary for this rule and has
not been changed.

**Comment:** Three commenters (BB, CC, and II) responded to EPA's
specific comment request concerning whether periodic reports are
necessary and what those reports should include, if required. Two
commenters (BB, CC) believe that no periodic reporting is needed and
should not be required since EPA has the ability to request this
information at any time.

One commenter (II) believed that more detailed records, including
formulation data, must be mandated by this rule, stating, "it is
manifestly unreasonable that EPA's rule fails to require adequate data
reporting for meaningful oversight and enforcement of the proposed
standards." The commenter quoted EPA's statement that "\[b\]ecause this
information is an integral part of determining compliance with the
product's reactivity-based limit, the list of VOCs would be considered
"emissions data," which must be generally available to the public." \[70
FR 1640, 1651\]. The commenter stated that "the proposed rule does not
even require submission of the core technical information required to
verify compliance for a reactivity-based aerosol coatings rule (as EPA
acknowledged in its approval of California's rule)- the VOC formulation
of the aerosol coatings themselves." The commenter stated that it "is
astounding, given the admitted complexity of reactivity-based regulatory
programs, that the EPA would deny itself and the public access to the
key information needed to evaluate compliance or non-compliance- the VOC
formulation of products being regulated." The commenter does not believe
that the proposed approach (i.e., the regulated entity responding to an
EPA request for data) is sufficient. The commenter stated that this
approach is "unacceptable and \[sic\] impermissible on its face,"
stating that "EPA may not, and certainly as a policy matter should not
promulgate a regulation that does not require submission of the data
sufficient to verify compliance."

The commenter (II) was also concerned that EPA was relying on the
labeling requirements to "facilitate enforcement" since this information
is "effectively useless" without formulation data. The commenter (II) is
concerned that the regulation "so as to hamstring effective enforcement
is outrageous and irresponsible, and clearly reflects a spineless
capitulation to industry pressure." The commenter stated that EPA must
include reporting requirements in the rule that will ensure it can
quickly and effectively verify compliance and intervene appropriately
where a violation occurs. The commenter concluded that EPA "may not
publish a rule without requiring that regulated report the core
emissions data that is necessary to establish compliance. The commenter
advocated for additional requirements- specifically routine independent
compliance verification testing, with EPA independently evaluating
random product samples to assess the accuracy of industry reporting.

Four commenters (AA, BB, CC, and DD) provided input on EPA's specific
comment request concerning whether additional information (e.g., a
centralized formulation database or additional reporting) should be
gathered and whether this additional information would ease enforcement
actions. One commenter (AA) stated that the rule is not "practically
enforceable" without this information. Another commenter (BB) felt the
additional information was not justified.

Two commenters (AA, DD) supported gathering additional information, with
one (AA) stating that they believe that without full electronic
reporting of all formulation data, the burden on EPA's compliance and
enforcement staff would be too great and that any effective enforcement
would be impossible. Even with this electronic information, one
commenter (AA) stated that EPA would need to go out into the field to
determine what is really happening. The commenters (AA, DD) recommended
that EPA make baseline compliance demonstrations for each product
formulation prior to rule implementation and at the time of each new
reformulation. The commenters stated that the recommended approach still
does not assure compliance since each batch of product could have
somewhat different components than exist in the baseline formulation.
One commenter (DD) said that a compliance determination would be needed
for each new batch to ensure that it meets the prescribed formulation
criteria.

One commenter (AA) acknowledged that the recommended enforcement would
require a tremendous staff workload commitment, as well as resources to
perform the necessary testing to determine product compliance. The
commenter stated that EPA needs to identify the resources it will use to
assure compliance with this rule. Therefore, the company will need to
understand their formulations and assure that each batch meets the
prescribed formulation. The commenter then questioned whether EPA has
ever completed an enforcement investigation for a regulation under
§183(e) of the CAA.

Two commenters (BB, CC) believe that the proposed recordkeeping and
reporting requirements are sufficient, with some changes noted elsewhere
in this document. The commenters believe that expanding these
requirements is unnecessary as EPA already has the ability to request
the information at any point in time.

One commenter (JJ) noted that the reactivity-based rule is
"arithmetically slightly more complex than simply adding up the percent
of each ingredient classified as a VOC, this slight increase in
complexity does not in any way deter enforceability determinations,
which are primarily based on the product formulation.

**Response**: EPA understands the concerns raised by all of the
commenters. The vast range of opinions demonstrates that a balanced
approach must be taken to ensure that all concerns are considered. When
EPA is establishing the record keeping and reporting requirements for a
rulemaking, we have the responsibility to balance the burden imposed by
the requirements with the need for a rule that is enforceable as a
practical matter. We must ensure that the information needed to ensure
compliance with this rulemaking is available, while ensuring that we do
not require industry to gather and submit information that will never be
used. This rulemaking, the first national VOC rule incorporating
reactivity-based limits, raises additional concerns about the types of
information that should be gathered. The final decision on this issue is
discussed in the preamble for the final rule.

**Comment**: One commenter (AA) stated that the requirement for
manufacturers to report basic information to EPA regional offices brings
to light a concern that the use of regional offices to collect national
product information is cumbersome and unwise. The commenter cited an
experience where the State of New York requested information on variance
and exceedance fee reports completed under the national AIM rule and
were unable to obtain these reports, reportedly because the reports were
not all maintained.

**Response**: EPA understands the commenters concerns. As discussed in
the response to the previous comment, EPA has given thoughtful
consideration to the best way to gather data for this rule, considering
the dual objectives of ensuring compliance and efficacy of the rule and
eliminating unnecessary burden on the regulated entity. We have
concluded that the approach discussed in the response to the previous
comment achieves those objectives.

> []{.mark}

5.  **Emission Reduction / SIP Credit**

**Comment:** Four commenters (AA, DD, FF, and JJ) provided comments on
the VOC/ozone emission reduction calculations. Two commenters (AA, DD)
stated that EPA projects that the rule will reduce both VOC emissions
and the amount of ozone generated from the use of aerosol coatings. The
commenters did not agree with EPA's assertion, stating that the
replacement of high reactivity compounds with lower reactivity ones
could potentially result in an increase of mass of VOC being emitted to
the atmosphere. One commenter (AA) went on to state, "given the unknowns
in photochemical atmospheric chemistry, this increased mass is just as
likely to result in more ozone formation as not." The other commenter
(DD) agreed with this statement, but cited the "complex nature of
photochemistry of urban and regional environments," rather than the
"unknowns in photochemical atmospheric chemistry."

Two commenters (FF, JJ) disagreed that a reactivity based rule could
lead to more ozone emissions than a mass-based rule. The commenters
asserted that mass-based limits are leading to the use of more reactive
VOCs. One commenter (FF) stated:

> As EPA has recognized in the preamble to the proposed rule, there is
> evidence that mass-based VOC limits in some products are leading to
> the increased use of more photochemically reactive VOCs and
> eliminating some of the anticipated environmental benefit (ozone
> reduction) of these regulations. The example in the preamble (70 FR
> 38962-38963) for flat coatings emissions reported in California\'s
> surveys for 2001 and 2005 (2000 and 2004 data, respectively) indicates
> that, despite a decrease in mass emissions of 11.5%, the total ozone
> formation potential from the category increased by 5.4%. This analysis
> of recent product surveys in California for architectural and
> industrial maintenance (AIM) coatings show as mass-based limits have
> been reduced formulators have been forced to replace less reactive
> solvents with more reactive solvents in the process causing some
> product categories to actually increase in ozone forming potential.
>
> In fact, the data in the California survey shows that, of the 39
> coating categories for which sufficient data is available for
> analysis, 25 categories experienced an increase in the average ozone
> formation potential per pound of VOC emitted. Those increases ranged
> from 1.6% for the \"Other Coatings\" category to a staggering 88.5 %
> for the \"Floor Coatings\" category. For all 39 categories in
> aggregate, the average ozone formation potential per pound of VOC
> emitted rose by 7.8%. This trend clearly shows that the selection of
> higher-reactivity VOC materials in numerous categories is
> significantly offsetting the air quality improvements anticipated by
> the current mass-based regulations. *\[A table showing the California
> data analysis was included with the comment.\]*
>
> EPA recognized this potential for mass-based approaches to cases,
> drive product formulators to use *more reactive compounds* albeit in
> smaller quantities and that substitutions can negate some of the
> expected benefits of the mass-based limits or, in some circumstances,
> even lead to a net increase in ozone-forming potential of the
> formulated products. \[70 FR 1648\] These data demonstrate that this
> is indeed what is occurring as mass-based VOC limits are driven lower.
> Such a circumstance could not occur with reactivity-based VOC
> emissions standards as the total ozone formation potential would be
> regulated, not simply the mass of VOC emissions.

Another commenter (JJ) stated that there are "significant scientific
studies providing data that confirm that reductions in the reactivity of
VOC emissions can be equally effective as reductions in the mass of VOC
in reducing ozone formation." The commenter stated that the studies,
including several that were funded by the RRWG "provide a clear picture
that both VOC mass and reactivity should be considered in ozone control
strategies." The commenter did note that the effectiveness of any
strategy to control ozone is limited in some areas since these areas are
"NOx limited."

One commenter (DD) had the further concern that EPA's proposal appears
to be encouraging the states to take credit for the adoption of the rule
before the rule is "on the books," citing a statement in the proposal
preamble, "\[W} e have calculated the reductions associated with the
rule in terms of mass VOC emissions and we will refer to a reduction in
mass of VOC emissions when discussing the impacts of the proposed
regulation."

**Response:** Our aerosol coatings reactivity rule establishes
product-weighted reactivity limits on the ingredient content of aerosol
coatings, which will, in turn, limit the ozone formed by the products.
Consequently, there may or may not be a reduction in the mass of VOC
emitted from the products, although ozone formation is reduced. EPA
agrees that our statement in the proposed rule concerning mass
reductions may have been in error.

Although we are confident that this rule will result in reduction in
ozone formation, reduction credits used by the States in rate of
progress demonstrations are expressed in terms of mass of VOC, not
ozone. Consequently, we had to develop an approach to estimate
equivalent VOC mass reductions from this rule for credit purposes. To
make this estimate, we calculated the VOC reductions that would have
been achieved by a mass-based rule equivalent in ozone formation
reduction to our reactivity-based rule. We based this calculation on
work done by CARB. CARB had previously developed a mass-based aerosol
coatings rule whose limits were later determined to be technologically
infeasible for certain product categories. The California
reactivity-based rule was developed by CARB as an equivalent replacement
for the mass-based rule's VOC limits. We agree with CARB's determination
that the ozone formation reduction achieved by their reactivity-based
rule is equivalent to ozone reductions that may have been achieved from
their earlier mass-based rule.

The compliance date for the rule is January 1, 2009. Consequently, the
rule cannot assure creditable VOC reductions prior to that date.
However, some States have areas that must achieve reductions prior to
2009. We have determined that approximately 90 percent of nationwide
aerosol coating production is accounted for by manufacturers who market
in California and, therefore, are expected to be complying with the CARB
regulation. Furthermore, from discussions with the industry, we are
aware that companies manufacturing for sale or distribution in
California generally manufacture the same formulation for nationwide
distribution. As a result, we are confident that a large majority of the
reductions that will be assured by the Federal rule are already being
achieved.

**Comment**: Two commenters (AA, DD) stated that EPA makes claims
regarding toxicity reductions based on reduced xylene and toluene use,
without attempting to qualify them. The commenters suggest that EPA look
at reformulation data from California to determine whether the CARB rule
(with identical limits to EPA's proposed rule) improved reduced toxicity
of the emissions.

**Response:** EPA was not attempting to quantify the amount of
reductions of xylene and toluene, but only providing qualitative
examples of some compounds, which are also HAP, that we expect to be
reduced with this rule. In other places in the preamble, we mention that
there are some compounds (e.g., methylene chloride) that are toxic/HAP
that could potentially be increased due to the relative reactivity
value. We asked for comments on whether or how we should seek to limit
the use of these compounds. Based on consideration of the comments and
EPA review, we have concluded that no voluntary program is warranted at
this time.

**Comment**: One commenter (AA) stated that the rule was unlikely to
realize the ozone benefits that EPA claims because of the exemptions for
small manufacturers; companies that are not currently in the California
market; and variances if the manufacturer cannot comply because of
technical reasons.

The commenter (AA) stated that they believed that the exemption
provision for small manufacturers (i.e., those that manufacture less
than 7,500 kilograms of total VOCs in aerosol coating products) would
have a "substantial impact on rule penetration" because he expected that
everyone who qualifies with the exemption would take advantage of it. T
he commenter (AA) believes that EPA should closely monitor these
entities to understand the impacts that this provision has on the
efficacy of the rule.

The commenter (AA) contends that the compliance extension to January 1,
2011 for any product not currently in the California market will reduce
the efficacy until the delayed compliance date for most areas around the
country. This commenter believes that the variance provisions make
quantification of the actual benefit more uncertain. The commenter
believes that it is not possible to predict how many of the
manufacturers will be able to satisfy the technology and economic
hardship provisions of the rule. The commenter concluded that it will be
important for EPA to establish a centralized review of the variance
provisions to assure the consistent, nationwide application of these
provisions.

The commenter (AA) concluded that the emission reduction stated in the
May 30, 2007 guidance to states on emission reduction are virtually
guaranteed not to be achieved due to these provisions in the rule. The
commenter stated that EPA should adjust these credits to account for the
reduced efficacy.

**Response**: EPA disagrees with the commenter that any of the
exemptions or additional compliance time provided by the rule has a
significant impact on the SIP credit or estimated emission reduction.
While the exact number of facilities that will both qualify for and
exercise each provision is unknown, EPA believes the number will be
small. In California, only one variance request was submitted. EPA has
estimated, and industry has concurred, that over 80 percent of the
aerosol coating products in the country were reformulated to meet the
California limits. EPA does not believe that the majority of the
regulated entities that have not come into compliance will qualify for
these provisions, which are targeted at providing relief for only the
smallest of operations. For example, each small quantity manufacturer
exemption of 7,500 kg per year exemption represents less than 0.01
percent of the estimated emissions from this category (based on the 1990
emissions estimates). Even a worst case scenario where half of the
estimated 40 small businesses qualified for this exemption would only
represent 0.2 percent of the total of the uncontrolled emissions.
Therefore, all emissions estimates and credit assessments remain
unchanged.

6.  **Clarifications / Specific Rule Questions**

**Comment:** Two commenters (BB, CC) questioned whether 2A contained the
appropriate reactivity factors. The commenters stated that this table
contains some inconsistencies with the Table of MIR Values that was
included in the California Aerosols Coating Regulation. This table was
amended in 2003 to include updated MIR values for certain compounds. The
2003 amendments added 102 new compounds to the table and 14 MIR values
were updated or assigned a more accurate value. The commenters requested
that the reactivity factors be updated for the following compounds:

-   N-pentadecane

-   N-C18

-   4,8-dimethyl tetradecane

-   1-heptane

-   1-pentadecene

-   C-15 terminal alkenes

-   C7 terminal alkenes

-   2,4,4-trimethyl-2-pentene

-   Dipropylene glycol methyl ether isomer
    (2-\[2methoxypropoxy\]-1-propanol;

-   2-(2-butoxyethoxy)-ethanol;

-   ethylene oxide;

-   acetic acid;

-   propionic acid; and

-   2-ethyl hexanoic acid

**Response:** Although CARB updated the reactivity values for 14
existing compounds in 2003, they indicated that these values would not
automatically go into effect, but would instead be used when CARB
develops new reactivity limits. Since CARB has not adopted new limits,
only the original reactivity values that were adopted in CARB\'s 2000
rulemaking are the ones that apply to CARB\'s current reactivity limits.

EPA chose to mirror CARB\'s reactivity limits, adopted in June 2000, and
the reactivity values on which those limits were based to minimize
confusion to industry. If EPA had incorporated the 14 updated reactivity
values from 2003 in this current rulemaking, then that action would
necessitate developing revised reactivity limits to take into account
the new values. This action would likely result in EPA and CARB having
different reactivity limits for the same coating category.

No changes were made to the reactivity values in Tables 2A, 2B, and 2C.
However, as explained in the final preamble, the number of compounds on
Table 2A has been reduced.

**Comment:** One commenter (CC) recommended that EPA include the
Chemical Abstracts Service Registry Number (CASRN) for every specific
compound contained on Tables 2A, 2B, and 2C. The commenter pointed out
that EPA and other agencies use these numbers in virtually every other
regulatory list. This would ease identifying a specific organic
compound, especially larger molecules with more complex molecular
structures and different naming conventions.

**Response:** EPA concurs and has provided CAS numbers for all compounds
where a CAS number is available to assist in compliance demonstrations.