RE: Proposed Amendments to Regulation No. 1141 of the State of

Delaware Regulations Governing the Control ofAir 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.
implement solutions to the ground-level ozone problem in the Northeast

and Mid-Atlantic regions. This proposed amendment to Delaware

Regulation No. 1141 is based on the recently developed Ozone Transport

Commission model rules, which in turn were based on similar California

rules that have been in existence since 1998. The amendment, once

promulgated, will reduce VOC emissions in Delaware and will become

part of DNREC’s plan to attain the 8-hour ground-level ozone National

Ambient Air Quality Standard (NAAQS) by 2010.

The proposed amendment to Regulation No. 1141 revises existing

Section 2.0 by adding the sale, distribution, and manufacture of 23

additional consumer products and product types to the 89 products

already in the original rule, which became effective in Delaware in 2005.

These products include personal hygiene and grooming, home cleaning,and cleaning of electrical and electronic equipment. If adopted, Section

2.0 of this amendment would reduce such VOC emissions in Delaware by

up to 220 tons per year.

Additionally, a new section to existing Regulation 1141, entitled

Section 4.0, “Adhesives and Sealants” is proposed atthis time. This new

section would establish VOC limits for commercially-used adhesive and

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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 offlear1n 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).

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was originally adopted in 2002 under what was then referred to as the

One-Hour Federal Ground-Level Ozone Standard. As a result of that

promulgation, in concert with several other current regulations,

Delaware met. that federal standard in 2005. However, the federalstandards have recently been changed to an eight-hour ozone standard,

and so Delaware now needs to modify its current regulations in order to

come into compliance with this updated federal standard.

The Ozone Transport CommissiOn, which is comprised of 12 states

(and the District of Columbia) along the Northeast and the Mid-Atlantic

Region, was established by Congress to help individual states promulgate

regulations to meet federal ground-level ozone standards. To that end,

they have created a set a model mles that the states can utilize when

drafting their individual regulations to meet the aforementioned federal

standards. Mr. Pettingill explained that the Department utilized the

OTC’s model rule on consumer products when drafting the present

proposed amendments to Section 2.0, as well as the addition of Section

4.0 for Delaware’s existing Regulation No. 1141. The Department held a

public workshop on July 30, 2008 to allow informed public input into the

draft proposed regulations.

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the Department’s responses to same, were provided to this Hearing

Officer in a formal Response Document dated February 9, 2009. This

Response Document is attached hereto as Attachment “B”, and is

expressly incorporated herein as part of the public record in this matter.

Attachment “B” also includes a copy of the actual proposed amendments

as revised to Delaware’s existing Regulation 1141, which is also being

expressly incorporated into the public record generated in this matter at

this time.

The aforementioned Response Document from the Department’s

Division of Air & Waste Management (as contained in Attachment “B”)

encompasses the full range of comment as contained in the public

record. There were ten comments, of which the Department recommends

adoption of eight and rejection of two. Each comment was meticulously

organized according to its source (e.g., transcript, exhibit, letter, etc.),

followed by a thorough and rational discussion of the issue based on the

record. In most instances, no changes were warranted, but in other

situations minor amendments were desirable to reflect existing realities,

to correct obvious errors, or to clarify wording. None of these minor

changes were deemed substantive to require another hearing.

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the Regulatory Flexibility Act, and determined that this proposed

amendment promulgation is 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.

III. Conclusions and Recommendations:

As noted earlier, the Department’s Response Document not only

captures the relevant aspects of the public record, but also provides athorough discussion of the issues along with the Department’s

recommended resolution of each. This Hearing Officer found the

dimensions of said Response Document to be very rational and evenhanded, and the proposed resolutions to be reasonable and consistent

with the record. Based on the above discussion, I conclude that the

Department has provided appropriate reasoning regarding the need forthe proposed amendments to existing Delaware Regulation 1141,

Limiting Emissions of Volatile Organic Compounds From Consumer andCommercial Products” - Section 2.0 (Consumer Products) and Section

4.0 (Adhesives & Sealants), and has thoroughly addressed stakeholder

issues as well as taken the steps necessary to protect the public health of

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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

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reduction in the State of Delaware, and that the addition of

Section 4.0 (Adhesives & Sealants) will result in a reduction ofapproximately 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 therecord, 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 ofRegulations; and

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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

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