MEMORANDUM TO:

David

S. Small, Acting Secretary FROM:

Lisa

A. Vest, Hearing Officer RE: Proposed Amendments

to Regulation

No. 1141

of the State

of Delaware Regulations Governing

the Control

of Air Pollution: “Limiting Emissions

of Volatile Organic Compounds

From Consumer

and Commercial Products”- Section

2.0 (Consumer Products)

and Section

4.0 (Adhesives

& Sealants) DATE: February

10, 2009 I. Background: A public hearing

was held

on Wednesday,
January

28, 2009,

at 6:00 p.m.

at the DNREC Priscilla Building conference

room,

156

S. State Street, Delaware,

to receive public comment

on the proposed amendment to existing Delaware Regulation

1141, “Limiting Emissions

of Volatile Organic Compounds

From Consumer

and Commercial Products”: Section

2.0 (Consumer Products)

and Section

4.0 (Adhesives

& Sealants). The purpose

of this amendment

is to reduce volatile organic compounds (VOCs)

from some commercial

and consumer products

sold, distributed, manufactured

or used

in Delaware.

VOCs

and other compounds

can react

in the lower atmosphere

during

hot, sunny
days

to form groundlevel ozone.

High levels

of ground-level

ozone

can damage

lung tissue, aggravate respiratory conditions

and make people
more susceptible

to respiratory infections.
Children

are especially vulnerable

to ozone’s harmful effects.Currently,Delawaredoesnotmeetfederalground-levelozoneairqualitystandards.DelawareisoneoftwelveNortheaststates(andtheDistrictofColumbia)thatarepartoftheOzoneTransportCommissioncreatedunderthefederalCleanAirAct,whichworkstodevelopandimplementsolutionstotheground-levelozoneproblemintheNortheastandMid-Atlanticregions.ThisproposedamendmenttoDelawareRegulationNo.1141isbasedontherecentlydevelopedOzoneTransportCommissionmodelrules,whichinturnwerebasedonsimilarCaliforniarulesthathavebeeninexistencesince1998.Theamendment,oncepromulgated,willreduceVOCemissionsinDelawareandwillbecomepartofDNREC’splantoattainthe8-hourground-levelozoneNationalAmbientAirQualityStandard(NAAQS)by2010.TheproposedamendmenttoRegulationNo.1141revisesexistingSection2.0byaddingthesale,distribution,andmanufactureof23additionalconsumerproductsandproducttypestothe89productsalreadyintheoriginalrule,whichbecameeffectiveinDelawarein2005.Theseproductsincludepersonalhygieneandgrooming,homecleaning,andcleaningofelectricalandelectronicequipment.Ifadopted,Section2.0ofthisamendmentwouldreducesuchVOCemissionsinDelawarebyupto220tonsperyear.Additionally,anewsectiontoexistingRegulation1141,entitledSection4.0,“AdhesivesandSealants”isproposedatthistime.ThisnewsectionwouldestablishVOClimitsforcommercially-usedadhesiveand2sealant products, including

25 adhesives,

4 adhesive primers,

5 sealants and

3 sealant primers.

The products

are primarily

used

in home construction,

carpet

and roof installation,

auto repair,

and tire retreading operations.

If adopted, Section

4.0

is projected

to reduce

VOC emissions by approximately

365 tons
per year. Various members

of the public attended

this hearing

on January 28, 2009

to offer public comment

with regard

to the aforementioned amendments

to Delaware’s

existing Regulation

1141,

and those comments

will

be addressed

below. Proper notice

of the hearing

was provided

as required

by law. IL Summary

of flear1n Record: At the time

of the hearing

on January

29, 2009, Gene Pettingill, Engineer

Ill with

the Department’s

Division

of Air and Waste Management,

offered

the Department’s

51 exhibits pertaining

to the proposed amendment

to Delaware’s Regulation

1141. Those exhibits were entered

into
the record

by this Hearing Officer

at that time.

For brevity’s

sake,

a copy

of that extensive Exhibit

List

is attached
hereto

as Attachment

“A”, and

is expressly incorporated

into this Hearing Officer’s Report

and
the public hearing record

in this matter.

Mr. Pettingill

then proceeded

to give

a brief presentation regarding

the Department’s proposed regulatory changes concerning Regulation

1141, specifically, revisions

to existing Section

2.0 (Consumer Products)

and
the proposed addition

of Section

4.0 (Adhesives

& Sealants). 3Mr.PettingilbeganbyexplainingthatRegulation1141governstheemissionofVOCs,whichtheDepartmentneedstorestrictinordertomeettheground-levelozonelevelssetbyfederalregulations.Section2.0ofRegulation1141(the“ConsumerProducts”portionofthatregulation),wasoriginallyadoptedin2002underwhatwasthenreferredtoastheOne-HourFederalGround-LevelOzoneStandard.Asaresultofthatpromulgation,inconcertwithseveralothercurrentregulations,Delawaremet.thatfederalstandardin2005.However,thefederalstandardshaverecentlybeenchangedtoaneight-hourozonestandard,andsoDelawarenowneedstomodifyitscurrentregulationsinordertocomeintocompliancewiththisupdatedfederalstandard.TheOzoneTransportCommissiOn,whichiscomprisedof12states(andtheDistrictofColumbia)alongtheNortheastandtheMid-AtlanticRegion,wasestablishedbyCongresstohelpindividualstatespromulgateregulationstomeetfederalground-levelozonestandards.Tothatend,theyhavecreatedasetamodelmlesthatthestatescanutilizewhendraftingtheirindividualregulationstomeettheaforementionedfederalstandards.Mr.PettingillexplainedthattheDepartmentutilizedtheOTC’smodelruleonconsumerproductswhendraftingthepresentproposedamendmentstoSection2.0,aswellastheadditionofSection4.0forDelaware’sexistingRegulationNo.1141.TheDepartmentheldapublicworkshoponJuly30,2008toallowinformedpublicinputintothedraftproposedregulations.4FollowingtheconclusionoftheDepartment’spresentationatthepublichearingonJanuary28,2009,therewereseveralmembersofthepublicthatofferedbothquestionsandcommentsfortheDepartmentwithregardtothisproposedpromulgation.Thesecomments,alongwiththeDepartment’sresponsestosame,wereprovidedtothisHearingOfficerinaformalResponseDocumentdatedFebruary9,2009.ThisResponseDocumentisattachedheretoasAttachment“B”,andisexpresslyincorporatedhereinaspartofthepublicrecordinthismatter.Attachment“B”alsoincludesacopyoftheactualproposedamendmentsasrevisedtoDelaware’sexistingRegulation1141,whichisalsobeingexpresslyincorporatedintothepublicrecordgeneratedinthismatteratthistime.TheaforementionedResponseDocumentfromtheDepartment’sDivisionofAir&WasteManagement(ascontainedinAttachment“B”)encompassesthefullrangeofcommentascontainedinthepublicrecord.Thereweretencomments,ofwhichtheDepartmentrecommendsadoptionofeightandrejectionoftwo.Eachcommentwasmeticulouslyorganizedaccordingtoitssource(e.g.,transcript,exhibit,letter,etc.),followedbyathoroughandrationaldiscussionoftheissuebasedontherecord.Inmostinstances,nochangeswerewarranted,butinothersituationsminoramendmentsweredesirabletoreflectexistingrealities,tocorrectobviouserrors,ortoclarifywording.Noneoftheseminorchangesweredeemedsubstantivetorequireanotherhearing.5ItshouldbenotedthattheDepartmentadheredtoallappropriateDelawarestatutesandtheregulatorydevelopmentprocessduringthedevelopmentoftheseproposedamendmentstoRegulationNo.1141.Additionally,theDepartmentcompleteditsreviewofthisproposalundertheRegulatoryFlexibilityAct,anddeterminedthatthisproposedamendmentpromulgationislawful,feasibleanddesirable,andthattherevisionsasproposedshouldbeappliedtoallDelawarecitizensandmembersoftheregulatedcommunityequallyinordertoprovideincreasedpublichealthtoDelaware’scitizens.III.ConclusionsandRecommendations:Asnotedearlier,theDepartment’sResponseDocumentnotonlycapturestherelevantaspectsofthepublicrecord,butalsoprovidesathoroughdiscussionoftheissuesalongwiththeDepartment’srecommendedresolutionofeach.ThisHearingOfficerfoundthedimensionsofsaidResponseDocumenttobeveryrationalandevenhanded,andtheproposedresolutionstobereasonableandconsistentwiththerecord.Basedontheabovediscussion,IconcludethattheDepartmenthasprovidedappropriatereasoningregardingtheneedfortheproposedamendmentstoexistingDelawareRegulation1141,LimitingEmissionsofVolatileOrganicCompoundsFromConsumerandCommercialProducts”-Section2.0(ConsumerProducts)andSection4.0(Adhesives&Sealants),andhasthoroughlyaddressedstakeholderissuesaswellastakenthestepsnecessarytoprotectthepublichealthof6the citizens

of Delaware. Accordingly,

I recommend promulgation

of these proposed amendments

to this regulation

in the customary manner provided

by law. Further,

I recommend

the following findings: 1.
The Department

has jurisdiction

under

its statutory authority to make

a determination

in this proceeding; 2.
The Department
provided adequate

public notice

of the proceeding

and
the public hearing

in

a manner required

by the law and regulations; 3.
The Department

held

a public hearing

in

a manner required

by the law and regulations; 4.
The Department

has reviewed

this proposed amendment

in the light

of the Regulatory Flexibility

Act, and has determined

it to be lawful, feasible

and desirable,

and that

the revisions

as proposed

should

be applied

to
all Delaware
citizens

and members

of the regulated community

equally

in order

to provide increased

public health

to Delaware’s
citizens,

as well

as

to provide greater consistency
between current

state

air toxics standards

and

the recently promulgated

federal standard

on which

this proposed amendment

is based; 5. Promulgation

of this proposed amendment

would update Delaware’s requirements

to
be consistent

with

the federal requirements,

and

is one

of several regional measures

being 7

# adopted

to aid

in the attainment

and maintenance

of theeighthour ozone NAAQS

by 2010; 6.
The Department anticipates

that

the revisions

to Section

2.0 (Consumer Products)

will result

in 220 tons

per year VOC reduction

in the State

of Delaware,

and that

the addition

of Section

4.0 (Adhesives

& Sealants)

will result

in

a reduction

of approximately

365 tons
per year VOC reduction

as well; 7.

The Department’s
Response Document

dated February

9, 2009, provides

a thorough, accurate

and balanced summary

of the record,

and

is expressly incorporated

herein

for that purpose. 8.
The Department

has

an adequate
record

for its decision,

and

no further public hearing

is appropriate

or necessary; 9.
The Department’s

proposed regulatory amendments

to Delaware’s
existing Regulation

1141,

as published

in the January

1, 2009 Delaware Register

of Regulations

and

as revised

and

set forth within Attachment

“B” hereto,

is adequately supported,

not arbitrary

or capricious,

and

is consistent

with

the applicable

laws

and regulations. Consequently,

it should

be approved

as

a final regulation, which
shall

go into effect

ten days after

its publication

in the next available

issue

of the Delaware Register

of Regulations;

and 810.
The Department

shall submit

the proposed regulation

as

a final 1 regulation

to the Delaware Register

of Regulations

for publication

in its next available

issue,

and shall provide written notice

to the persons affected

by the Order. A A. VEST earing Officer /ahear/Reg.

1 141.Amndmt.09.Sect.2.O

and 4.0

9