SUPPLEMENTAL BASIS STATEMENT 

CHAPTER 152 

CONTROL OF VOLATILE ORGANIC COMPOUNDS FROM CONSUMER PRODUCTS 

List of Commenters 

(1) Joseph T. Yost 

Director, State Affairs 

Consumer Specialty Products Association 

(2) Frances K. Wu 

Associate General Counsel 

Cosmetic, Toiletry, and Fragrance Association 

(3) Anne Arnold 

Manager, Air Quality Planning Unit 

US Environmental Protection Agency, Region 1 

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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 of January 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 to join other state agencies to work 

with EPA in 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 of reducing VOC emissions from this 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 VOC emissions and ozone air pollution in the Northeast and Mid-Atlantic. 

The sooner these technology forcing standards are in place, the sooner we can benefit from the 

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 EPA proposes ; however, if they are not, the Federal standards will take 

precedence over Maine's standards. 

Effective Dates 

2. Comment: The commenter supports the effective date of January 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 these 
products 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 year for compliance for FIFRA-related products 

was an oversight on the part of the Department in drafting these amendments. The Department 

has revised subsection 3(E) of the 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 of the VOC standards specified in Table of Standards is AMY Oo 

one year after the date specified in subsection 3(A) of this 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 of the same product category and form sold, 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 EPA changes its definition . 

Response: The Department cannot incorporate by reference future 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 3 which 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: "If a manufacturer uses a code indicating the date of manufacture for any consumer 

product subject to Section 3, an explanation of the date portion of the code must be filed with the 

Department no later than May 1, 2005 or products with an effective date of May 1. 2005 or 

January 1. 2008 for Products with an effective date 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 language from subsection 7(C)(3) to subsection 

7(A) of the 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 claim of 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 the fact that manufacturers may be required in some 

instances to submit documents that contain confidential business information under provisions 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 confidentiality provisions following subsections 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 deleted from all but one section during the process of 

drafting the amendments and has been reinserted in all five locations in the revised draft. 

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 9 of 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 

flexibility for future standards into the rule. If ASTM makes changes to the standards in the 

future, the Department would need to take amendments to Chapter 152 through the MAPA 

(Maine Administrative Procedures Act) process at that time. 

Safety Concerns Regarding Flammability 

10. Comment: The commenter urges the Department to consider excluding the electrical 

cleaners from the 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 DEP to consider the compelling safety concerns about 

flammability and allow manufacturers 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 VOC emissions, 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 concern for the safety 

of consumers using these products. However, according to a CARB (California Air Resources 

Board) survey of consumer products conducted in 2001, 64 percent of sales of electrical 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 of products six years 

ago. Reducing emissions of perchloroethylene is a high priority of Maine's air quality program, 

due to the health effects, and the fact that ambient levels are consistently monitored at levels in 

excess of Maine's standards. We also want to avoid an increase in the use of chlorinated solvents 

to result from manufacturers re formulating their products to meet the VOC limits set forth in this 

Chapter. In addition, Chapter 152, has separate categories for "Electrical cleaner" and 

"Energized electrical cleaner" and does not prohibit the use of perchloroethylene, methylene 

chloride or trichloroethylene in the latter category of products which are intended for 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 inadvertently use 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 of energized 

electrical cleaners should adequately address the commenter's concern.