SUPPLEMENTAL BASIS STATEMENT CHAPTER152 

### CONTROL OF VOLATILE ORGANICCOMPOUNDS FROM CONSUMERPRODUCTS List ofCommenters 

### (1) JosephT. Yost Director, State Affairs Consumer Specialty Products Association (2) Frances K

. Wu 

### Associate General Counsel Cosmetic, Toiletry, and Fragrance Association (3) AnneArnold Manager, Air QualityPlanning Unit US Environmental ProtectionAgency, Region 1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Upcoming Federal Regulations 1 . Comment: The commenters noted that the US Environmental Protection Agency intends to revise the existing national rule for consumer products. EPA is expected to publish a proposed rulemaking in September 2007 and issue a final rule in January 2008, with an anticipated effectiveness date ofJanuary 2009. Commenter (3) suggests that Maine should ensure its rule is at least as stringent as the proposed federal rule. Commenter (2) questions the necessity of Maine proceeding with this rulemaking in consideration of the upcoming Federal proposal . Commenter (1) strongly urges Maine tojoin other state agencies to work with EPAin developing revisions to the national regulations. (commenter 1,2, 3) Response: While the Department agrees that a national approach to regulating consumer products would be the most efficient way ofreducing VOCemissionsfromthis sector, we cannot speculate or count on future actions by the US EPA . The Ozone Transport Commission has developed the model rule on which the proposed amendments are based as part of a regional approach to reducing VOCemissions and ozone airpollution in the Northeast and Mid-Atlantic. The sooner these technologyforcingstandards are in place, the sooner we can benefitfromthe reductions in emissions . Because EPA is basing its rulemaking proposal largely on the OTC model, the Department assumes that the existing rule and proposed amendments will be as stringent as whatever EPAproposes; however, if they are not, the Federal standards will take precedence over Maine'sstandards . Effective Dates 2. Comment: The commenter supports the effective date ofJanuary 1, 2009 established in the proposed regulation, however this commenter points out that the effective date for products registered under the Federal Insecticide, Rodenticide and Fungicide Act (FIFRA) the effective should be given additional time for compliance due to the approval process theseproducts have to go through with both US EPA and the Maine Board of Pesticides Control . Section 3(E) gives these products an additional year under the existing rule, but not in the amendments. (commenter 3) Response: The omission of this additional yearfor compliancefor FIFRA-relatedproducts was an oversight on thepart of the Department in drafting these amendments. The Department has revisedsubsection 3(E) ofthe draft rule to read: "Products registered under FIFRA . For those consumer products that are registered under the Federal Insecticide, Fungicide, and Rodenticide Act, (FIFRA; 7 U .S.C . Section 136- 136y), the effective date ofthe VOCstandards specified in Table ofStandards is AMY Oo one year after the datespecifiedin subsection 3(A) ofthis Chapter. " Definitions 3. Comment: The commenter pointed out that under the definition of "Existing Product," the draft rule amendments specify September 1, 2004 as the date that defines "Existing Product." While September 1, 2004 is the official effective date of the original rule, the standards did not go into effect until May 1, 2005. The commenter asserts that the latter date should be referenced in the definition. (commenter 3) Response: The Department agrees with the commenter and has revised subsection 2(A)(20) of the proposed draft regulation to read: "Existing product. "Existing Product" means any formulation ofthe same product category and formsold, supplied, manufactured, or offered fo sale in Maine prior to September 1, 2004 Mav 1. 2005. or any subsequently introduced identical formulation. " 4 . Comment : The commenter suggests that the Department revise the definition of Volatile Organic Compound (VOC) in Maine to incorporate the US EPA definition in order to eliminate the need to change Maine's definition every time EPAchanges its definition. Response: The Department cannot incorporate by referencefuture changes, so that even if the existing Federal definition were incorporated into Chapter 100, Definitions, where it currently appears, the Department would still have to make revisions each time EPA updated its own definition. References 5 . Comment: The commenter pointed out two section references appearing in the Table of Standards in Section 3which the Department failed to revise. First the internal reference for the regulatory provisions governing the Charcoal Lighter Material product category must be re-numbered to read "See 3(F) ." Second, the reference to provisions governing the Floor Wax Stripper category must be renumbered to read "See 3(H) ." (commenter 3) Response: The Department has made the recommended revisions to the references.Product Dating Requirements

6. Comment: The commenters pointed out that the Department neglected to revise the date code explanation filing date in subsection 6(B)(1) to reflect the effective date of categories added in this rulemaking. (commenter 2, 3) Response: The Department has revised subsection 6(B)(1) of the proposed regulation to read: "Ifa manufacturer uses a code indicating the date of manufacturefor any consumer productsubject to Section 3, an explanation ofthe date portion ofthe code must befiled with the Department no later than May 1, 2005 or products with an effective date ofMay 1. 2005 or January 1. 2008for Productswith an effective d ate ofJanuarv 1, 2009 . " Reporting Requirements 7. Comment: The commenters note that the Department erroneously included a provision to address situations in which a responsible party does not have or cannot provide information requested by the Department in subsection 7(C)(3) when this provision belongs in 7(A) . (commenter 2, 3) Response: The Department has moved the languagefromsubsection 7(C)(3) to subsection 7(A) ofthe revised draft regulation as requested . Claims of Confidentiality 8 . Comment: The commenters requested that the following information be added to subsection 7(A) of the proposed draft regulation: "any claimof confidentiality shall be handled in accordance with Departmental policies governing records that may contain confidential information, SOP Number OC PE 00006, and applicable law ." (commenter 2, 3) Response: The Department appreciates thefact that manufacturers may be required in some instances to submit documents that contain confidential business information underprovisions of this rule. The Department has a Standard Operating Procedure to ensure that documents that are submitted with claims of confidentiality are treated appropriately and in accordance with applicable law

. However, the Department declines to make this addition because this issue was handled in the 2004 promulgation of this rule with the addition of a note outlining the Department's confidentialityprovisions followingsubsections S(B), 6(B), 7(B), 8, and 9 in order to emphasize the Department's commitment to handling such documents properly. This confidentiality note was inadvertently deletedfromall but one section during the process of drafting the amendments andhas been reinserted in all five locations in the reviseddraft. Testing Standards 9. Comment: The commenter noted that the OTC Model Rule included a flexibility provision in incorporating the ASTM standard incorporated by reference in Section 9of the proposed regulation and suggests that the Department do the same, adding the language, "including any subsequent amendments." (Commenter 3)Response: While the Department acknowledges the practicality in maintaining consistency

with ASTM

standards as they are revised, all revisions to Department regulations need to be approved by the Board of Environmental Protection. Thus, the Department cannot write flexibilityforfuture standards into the rule. IfASTM makes changes to the standards in the future, the Department would need to take amendments to Chapter 152 through the MAPA (MaineAdministrative Procedures Act) process at that time. Safety Concerns Regarding Flammability 10 . Comment: The commenter urges the Department to consider excluding the electrical cleaners fromthe proposed ban on the use of chlorinated solvents in product formulations since the use of two of the three chemical compounds is necessary for the production of a nonflammable product. Subsection 3(M) of the proposed regulation would ban the use of perchloroethylene (Perc), trichloroethylene (TCE) and methylene chloride in electrical cleaners. The commenter urges the DEPto consider the compelling safety concerns about flammability and allowmanufacturers to continue to use Perc to formulate this narrowlydefined product category. Since these products are generally used on and around energized surfaces, these products must be formulated with nonflammable compounds to avoid flash fires that have the potential to cause serious burns. The commenter points out that although the energized electrical cleaner category does not fall under this prohibition, consumers may not read the label carefully enough, and could potentially used an electrical cleaner on an energized surface, potentially resulting in a dangerous situation. After weighing the immediate and acutely dangerous flammability risks and also considering the fact that banning the use Perc will not reduce VOCemissions, the commenter believes that it would be reasonable to allow manufacturers to continue to use these solvents to formulate electrical cleaners. The commenter does not object to the Department banning the use of TCE and methylene chloride in this product category. (Commenter 3) Response: The Department appreciates and shares the commenter's concernfor the safety of consumers using theseproducts. However, according to a CARB (California Air Resources Board) survey of consumerproducts conducted in 2001, 64percent ofsales ofelectrical cleaners did not contain perchloroethylene, methylene chloride or trichloroethylene . This tells us that alternatives to chlorinated solvents do exist and were used in the majority ofproducts sixyears ago . Reducing emissions ofperchloroethylene is a high priority ofMaine's air qualityprogram, due to the health effects, and thefact that ambient levels are consistently monitored at levels in excess ofMaine'sstandards . We also want to avoid an increase in the use ofchlorinatedsolvents to resultfrommanufacturers reformulating theirproducts to meet the VOClimits setforth in this Chapter . In addition, Chapter 152, has separate categories for "Electrical cleaner" and "Energized electrical cleaner" and does not prohibit the use ofperchloroethylene, methylene chloride or trichloroethylene in the latter category ofproducts which are intendedfor use in cleaning or degreasing electrical equipment when an electric current or residual electrical potential exists. While it is indeed possible that a consumer could inadvertentlyuse an electrical cleaner on an energized surface, it is not possible for the Department to guard against all potential misuse of

products by consumers. The Department believes this exemption ofenergized electrical cleaners should adequately address the commenter's concern.