State ofRhode Island 

Department ofEnvironrnental Management 

Office of Air Resources 

In Re: Adoption of proposed amendments to Air Pollution Control Regulations Nos. 25, 31 

and 33 and proposed new Air Pollution Control Regulation No. 44. 

DECISION 

Introduction 

On 20 January 2009 a notice was published in the Providence Journal-Bulletin and was mailed to 

interested parties announcing a public hearing and comment period to accept comments on the 

adoption of proposed amendments to Air Pollution Control Regulations Nos. 25, 31 and 33 and 

proposed new Air Pollution Control Regulation No. 44. The public hearing was held on 20 

February 2009 in Room 300 of the Department of Environmental Management Building, 235 

Promenade Street, Providence, Rhode Island. The public comment period extended until 4:00 

PM on 20 February 2009. 

The proposed revisions to Regulation No. 31, "Control ofVolatile Organic Compounds (VOC) 

from Consumer Products," and No. 33, "Control ofVOC from Architectural Coatings and 

Industrial Maintenance (AIM) Coatings," and proposed new Regulation No. 44, "Control of 

VOC from Adhesives and Sealants," would limit the volatile organic compound (VOC) content 

of 102 categories of consumer products, 53 categories of architectural and industrial maintenance 

coatings and 40 categories of adhesive and sealant products. These rules also include the 

following provisions: 

• Limits on toxic contaminants in antiperspirants and deodorants and other consumer products 

(Regulation No. 31); 

• Requirements for charcoal lighter materials, aerosol adhesives and floor wax strippers 

(Regulation No. 31 ), 

• Requirements for products containing ozone-depleting compounds (Regulation No. 31 ); 

• Painting practice and thinning specifications (Regulation No. 33); 

• Requirements for rust preventative coatings, lacquers, and AIM coatings not specifically 

listed in the Regulation No. 33; 

• VOC content and vapor pressure limits for surface preparation solvents (Regulation No. 44); 

• Specifications for the content and use of cleanup solvents, including the removal of adhesives 

and sealants from. the parts of spray equipment (Regulation No. 44); 

• Specifications for air pollution control equipment if such equipment is employed in lieu of 

the use of compliant adhesive/sealant products (Regulation No. 44); 
• Specifications for the storage and disposal of absorbent materials contaminated with 

adhesives, sealants, primers or solvents subject to Regulation No. 44: 

• Product labeling requirements (Regulations Nos. 31, 33 and 44); and 

• Record keeping, reporting and testing requirements (Regulations Nos. 31, 33 and 44). 

The proposed revision to Regulation No. 25, "Control ofYolatile Organic Compound Emissions 

from Cutback and Emulsified Asphalt," would prohibit the use of cutback asphalt and limit the 

YOC content of emulsified asphalt used for road paving, maintenance or repair during the ozone 

season (April through September). 

The proposed amendments and new regulation are based on control measures developed by the 

Ozone Transport Commission (OTC) and have previously been adopted by neighboring states. 

Based on the OTC analysis of the technical and economic feasibility of these measures, the 

Office of Air Resources has determined that implementation of these regulatory changes 

significantly reduce YOC emissions but would not have a significant adverse economic impact 

on small businesses, cities or towns. 

Decision 

It is the decision of the Hearing Officer to adopt the proposed amendments to Air Pollution 

Control Regulations Nos. 25, 31 and 33 and proposed new Air Pollution Control Regulation No. 

44, modified as discussed in the response to comments that follows. The final amended 

regulations and new regulation are appended to this Decision. 

Since the compliance date for the Regulation No. 25 amendments has been changed to May 1, 

2010, the amended regulation will not be filed with the Secretary of State until October 2009, so 

that the existing limitations in Regulation No. 25 will remain in effect until the end of the 2009 

ozone season. 

I Date 

Approved: 

Date W. Michael Sullivan 

Director 

2 
Response to Comments 

This section will present the Rhode Island Department of Environmental Management's (RJ 

DEM's) response to the comments received at the public hearing and during the public c<;:>mment 

period. Each comment has been paraphrased and is followed by Rl DEM's response. Similar 

comments have been grouped together. A list of commenters is attached. 

General Comments 

Comment: The regulations are consistent with the Ozone Transport Commission's (OTC's) 

model rules for these source categories. Rhode Island should submit these rules to EPA as a 

State Implementation Plan (SIP) revision once adopted. (EPA) 

Response: The regulations will be submitted as SIP revisions when final. 

Comments on Air Pollution Regulation No. 25, "Control of Volatile Organic Compound 

Emissions from Cutback and Emulsified Asphalt" 

Comment: For consistency purposes, the effective date in subsection 25.2.1 should read, "on 

or after." (EPA) 

Response: The wording in subsection 25.2.1. has been changed in response to this comment. 

Comment: There are two subsections "25.2.2." This should be corrected. (EPA) 

Response: The numbering error was corrected in response to this comment. 

Comment: Subsection 25.2.2 refers to an exemptiop that is allowed with written approval of 

the Director. This should be revised to read: "written approval is granted by the Director and the 

EPA." (EPA) 

Response: The regulation was changed as suggested in response to the comment. 

Comment: Rhode Island is moving too fast in adopting this regulation. The compliance date 

of J uly-1, 2009 does not allow sufficient time for affected parties to evaluate the ramifications of 

the amendments. Existing Department of Transportation (DOT) specifications and municipal 

budgets may interfere with compliance this year. (Hudson) I'm concerned about possible 

consequences to my business if this regulation is adopted this year. (Peckham) 

3 
Response: The DOT and the public works departments of all of the municipalities in the 

State were notified about the proposed amendments and none of these entities submitted 

comments. However, to allow affected parties (primarily municipalities) and private companies 

such as Mr. Peckham's sufficient time to identify alternative products, the compliance date in the 

regulation has been changed to May 2010. In a further effort to ease any inconvenience that the 

regulation may cause to the State or municipalities or private businesses, the effective period for 

the restrictions has been changed from April through September to May through September to 

allow sufficient time for patching winter potholes. Note that the regulation applies only to road 

paving, so paving of other surfaces, such as parking lots and driveways, is not affected by the 

rule. 

Comment: The Public Hearing Notice states that "these regulatory changes significantly 

reduce YOC emissions but would not have a significant economic impact on small business, 

cities and towns." Has Rl DEM adequately detern1ined that this is true? The only neighboring 

state that has thus far adopted a similar regulation is Connecticut and that regulation will not be 

effective until this coming ozone season. (Hudson) 

Response: RI DEM has received information that indicates that alternative products are 

available and are not significantly more expensive than the ones currently in use. However, the 

postponement of the compliance date to 201 0 will allow for Rl DEM to evaluate the success of 

the implementation of a similar regulation this summer in Connecticut to determine whether the 

Rhode Island regulation should be further amended prior to implementation. 

Comment: The proposed changes leave much to interpretation. Areas that need further 

clarification include: 

• Use of cold patching materials 

• Definition of road paving- does it mean only public roads? 

• Application of asphalt for use other than on roads 

• Should specify that cutback asphalt may be manufactured in Rhode Island for sale outside the 

State or for applications other than on roads (Hudson) 

Response: The regulation was not changed in response to this comment. RI.DEM believes 

the regulation is clear on each point the commenter suggested were in need of further 

clarification. The regulation, as proposed, does not include exemptions for cold patching 

materia1s. The term "road" is generally understood to mean an open way (generally public) for 

travel or transportation. Although roads open to the public are generally owned by the State or 

municipalities, there may be instances where they are privately owned. Adding a definition of 

"road" to the regulation would not serve to further clarify applicability. 

4 
Further, the applicability section clearly states that the regulation applies 

who 

to "any person 

....... solicits the use of or applies asphalt for road paving, maintenance 

Manufacture of asphalt and 

or repairs." 

application of asphalt on surfaces other than roads are not covered by 

this regulation. 

Comments on Regulation No. 31, "Control of Volatile Organic Compounds (VOC) from 

Consumer Products" 

Comment: Sections 31.2.3, 31.2.4 and 31.2.5 should required EPA approval of innovative 

products exemptions, alternative control plans and variances, respectively, to ensure that they are 

consistent with the emissions reductions in the SIP. (EPA) 

Response: Since Regulation No. 31 recognizes innovative products exemptions, alternative 

control plans and variances that are in effect in other states, there is no approval process specified 

in the regulation for those exemptions. However, the persons claiming such exemptions must 

supply documentation of the other state's approval to the Rl DEM upon request. In response to 

the comment, this requirement was revised in each of the above sections to require that the 

documentation be submitted to both RI DEM and the EPA ~ 

Comment: The VOC limit for charcoal lighter material should refer to subsection 31.3.5, not 

31.3.7. (EPA, CSPA) 

Response: This typographical error was corrected in response to the comment. 

Comment: The Consumer Specialty Products Association (CSPA) and the Personal Care 

Products Council (PCPC) support the DEM's proposal to develop regulatory requirements for 

consumer products that are based on the the OTC Model Rule and are consistent with the 

requirements in other States. (CSP A and PCPC) 

Response: No response required. 

Comment: The proposed regulation includes an exemption for products that are "sold, 

offered for sale or manufactured in Rhode Island for shipment and use outside of Rhode Island" 

(paragraph 31.2.2(a). Rhode Island should also include a provision that has been adopted in 

other states that exempts companies that exercise "reasonable prudent precaution" to ensure that 

a non-compliant product is not shipped to the State. (CSP A) 

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Response: The regulation was not changed in response to this comment. Should the 

circumstances described by the commenter occur in Rl, Rl DEM will conduct an evaluation on a 

case-by-case basis considering a variety of factors, including intent, in determining the 

appropriate enforcement response to alleged violations of the regulation. 

Comment: The exemption for air fresheners comprised entirely of fragrance should be 

modified to be consistent with the OTC Model Rule. (CSPA) 

Response: In response to this comment, paragraph 31.2.2(d) has been modified to exempt 

"air fresheners comprised entirely of fragrance, compounds not defined as VOCs in the Rhode 

Island Air Pollution Control General Definitions Regulation and LVP-VOCs." 

Comment: In the Table of Standards, subsection 31.3. 9 is incorrectly referenced as being 

applicable to automotive brake cleaners, carburetor or fuel-injection air intake cleaners and 

engine degreasers. Those references should be removed. (CSPA) 

Response: The Table of Standards was corrected in response to this comment to remove the 

incorrect references. 

Comment: RI DEM omitted the 6 percent VOC limit for Hair Styling Gels that is contained 

in 12 states' fi.nal regulations and the California Air Resources Board (CARB's) current 

regulation. This category should be added to the regulation. (CSP A) 

Response: In the proposed regulation, hair styling gels are included in the definition of"hair 

styling product." The VOC limits for hair styling products in the Table of Standards are 6 

percent for aerosols and pump sprays and 2 percent for other forms. This is consistent with the 

recently promulgated amended consumer product rules in Massachusetts and Connecticut. The 

regulation was not changed in response to this comment. 

Comment: CSPA supports the July 1, 2009 compliance date in the proposed regulation. 

(CSPA). The PCPC supports having one date apply to all limits. (PCPC) 

Response: That date will remain in the final regulation. 

Note that the CSP A also commented on labeling requirements in the proposed regulation but that 

comment was withdrawn in an email from Joseph Yost to Barbara Morin dated February 27, 

2009. 

6 
Comments on Regulation No. 33, "Control of VOC from Architectural Coatings and 

Industrial Maintenance (AIM) Coatings" 

Comment: Although the compliance date is in section 33.3, Rl DEM should consider also 

adding it to the applicability section, 33.2.1, as was done in the other proposed regulations. 

(EPA) 

Response: 

comment. 

For clarity, the compliance date was added to section 33.2.1 in response to the 

Comment: In order to allow time for RI DEM to adopt these amendments and for paint 

manufacturers and distributors to implement these changes, the compliance date should be 

moved from July 1, 2009 to January 1, 2010. (National Painting and Coating Association 

(NPCA)) 

Response: The regulation was not changed in response to this comment. Rules with the 

same VOC limits and labeling requirements as those in the Rhode Island rule have been in effect 

in Connecticut since May 1, 2008 and in Massachusetts since January 1, 2009, so compliant 

products are currently available in the region. Moreover, the regulation allows the sale and use 

of noncompliant products manufactured prior to July 1, 2009 as long as the labels reflect the 

manufacturing date, so distributors and sellers will be allowed to sell existing inventory. 

Comment: To be consistent with the recently amended Illinois AIM rule, a defmition for 

"stone consolidant," along with a VOC limit of 450 g/1 for that category should be added to the 

regulation. (NPCA) 

Response: The regulation was not changed in response to this comment. Rl DEM believes 

that regional consistency is essential in regulating AIM coatings, and nearby states, including 

Connecticut and Massachusetts, have not adopted a separate limit for this category. It does not 

appear that Illinois has adopted an AIM rule, as stated in the comment. However, Indiana has 

adopted a limit of 450 g/1 for s~one consolidants. This limit is included in the 2007 CARB 

Suggested Control Measures (SCM) for architectural coatings. The SCM recommends a number 

of changes to the rule, including the deletion of 15 coating categories, the addition of stone 

consolidants and nine other categories, lowering the VOC ·limits for 19 categories, revising 

numerous definitions for clarification or to make the definition more stringent, modifying 

provisions for exceptions to the Most Restrictive VOC Limit provision, deleting the Averaging 

Compliance Option and changing reporting requirements. 

1 The OTC states are now evaluating 

I State of California, "2007 Air Resources Board Suggested Control Measures for Architecrural Coatings." 

http://www.arb.ca.gov/coatings/arch!TSD Chapters J-4.pdf 

7 
the California recommendations and may recommend that they be adopted as part of a strategy to 

further reduce emissions in OTC states in order to meet the 2007 ozone standard. . 

Comment: For consistency with the AIM rules in OTC states, the words "to seal in 

effloresecence" should be added to the definition of"specialty primer, sealer and undercoater" and 

in 33.4.1(g), which lists labeling requirements for that source category. (NPCA) 

Response: The suggested phrase was added to the definition and labeling requirements, as 

suggested. This phrase is not included in the Massachusetts or Connecticut AlM regulation, but it 

is included in those in Delaware and Pennsylvania and, according to the Hearing Officer's Decision 

on the amended Delaware regulation, this addition received no negative comments when proposed 

in that state. 

Comment: To be consistent with the recently amended Ohio AIM rule, add "conjugated oil 

varnish" to the definitions and to the VOC table with a limit of 450 g/1. (NPCA) 

Response: The regulation was not changed in response to this comment in order to be 

consistent with the regulations in the other OTC states, which have not adopted a limit for this 

category. The NPCA may want to suggest this revision to the OTC as it considers recommending 

further amendments to AIM requirements in the states in the region. 

Comment: Since protection of carbonate stone used in institutional construction requires the 

use of penetrating reactive sealers that are incompatible with aqueous carriers, add "reactive 

penetrating carbonate stone sealer" to the definitions and to the VOC table with a limit of 600 g/1. 

(NPCA) 

Response: The regulation was not changed in response to this comment in order to be 

consistent with the regulations in the other OTC states, which have not adopted a limit for this 

category. The NPCA may want to suggest this revision to the OTC as it considers recommending 

further amendments to AlM requirements in the states in the region. 

Comment: NPCA appreciates that Rl DEM included a 90 day period for manufacturers to 

report information on coatings containing perchloroethylene and methylene chloride upon request 

However, since the 2007 CARB SCM discontinued this reporting requirement, RI DEM should 

consider deleting it. 

8 
Response: The regulation was not changed in response to this comment. California deleted the 

requirement because it had collected sufficient data on the use of coatings containing those toxics in 

that state, but Rhode Island may also want to gather state-specific information about the usage of 

those materials. Note that Massachusetts also requires this information to be maintained by the 

manufacturer and that the information has to be reported to RI DEM only if requested. 

Comments on Regulation No. 44, "Control of VOC from Adhesives and Sealants" 

Comment: For consistency with other regulations, the compliance date in 44.2.1 should read 

"on or after" instead of"on and after." (EPA) 

Response: The wording of 44.2 .1 was changed in response to this comment. 

Comment: Additional regulation of industrial use of adhesives is not necessary because many 

of those companies are already subject to YOC and Hazardous Air Pollutant (HAP) standards 

which are policed through facility operating permits. Additional requirements would make 

compliance more complicated, limit operational flexibility and increase the regulatory burden on 

those facilities. (Lord) 

Response: The regulation was not changed in response to this comment. The OTC model 

rule, which is the basis of Regulation No. 44, was developed after extensive discussions with 

potentially affected industry groups and contains numerous exemptions aimed at limiting its 

applicability to operations that are not adequately addressed by other regulatory requirements. 

Comment: The regulation allows for use of a control device to meet the limits, but, if a 

facility determines that a control device is necessary, the compliance deadline of July 1, 2009 

does not leave enough time for such a device to be installed. (Lord) 

Response: In response to this comment, a new paragraph has been added to subsection 44.3.5 

which states the following: "Facilities that intend to comply with this regulation using air 

pollution control equipment may apply to the Director for an extension to the compliance date 

specified in subsection 44.2.1. Extension requests must be received, in writing, by July 1, 2009 

and must include the date by which a permit application or registration form will be submitted 

and the date by which the control equipment will be installed 

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Comment: RI DEM should include an exemption for use of noncomplying adhesives or 

solvents in the repair and manufacture of submarines if necessary to meet military perfonnance 

specification, similar to that adopted by the CT DEP. (General Dynamics). 

Response: In response to this comment, the foll~wing exemption was added to the list in 

subsection 44.2.3: "The use of adhesives, cleanup solvents and surface preparation solvents in 

the repair and manufacture of submarines, when the use of noncomplying material is necessary to 

meet military perfonnance specifications, provided that records of the use of such noncompliant 

materials are maintained in accordance with the specifications in section 44.5 of this regulation." 

Comment: The tem1s "as applied" and "as supplied" should be defined. (General Dynamics) 

Response: The regulation was not changed in response to this comment. Those tenns are 

used throughout Rhode Island regulation without definition and are understood by the regulated 

community. RI DEM will consider adding a definition for those tenn.s to the Rhode Island 

General Definitions Regulation the next time that regulation is amended. 

Comment: "Chlorinated polyvinyl chloride plastic" or "CPVC plastic" is defined in the 

regulation as "a polymer of the vinyl chloride monomer that contains 67% chlorine and is 

nonnally identified with a CPVC marking." CPVC can have a chlorine content ranging from 

56.7% to 74% by mass. Since CPVC plastic is readily identified in commercial use, CT DEP 

deleted this definition from its regulation. RI DEM should do the same. (General Dynamics) 

Response: The definition was deleted in response to this comment. Note that Regulation No. 

44 continues to include a definition for "chlorinated polyvinyl chloride welding adhesive" or 

"CPVC welding adhesive" as "an adhesive labeled for welding of chlorinated polyvinyl chloride 

plastic." 

Comment: Regulation No. 44 defines "cleanup solvent" as "a VOC-containing material used 

to remove a loosely held uncured (i.e., not dry to the touch) adhesive or sealant from a substrate, 

or clean equipment used in applying a material." To be consistent with an updated definition in 

the CT DEP regulation, this definition should be changed to "a VOC-containing solvent used to 

remove a loosely held uncured adhesive or sealant from a substrate or to clean equipment used in 

applying an adhesive, sealant or a priiner." (General Dynamics) 

Response: The definition of"cleanup solvent" was changed as suggested in the comment. 

10 
Comment: The term "reactive adhesive" used in the definition for "cyanoacrylate adhesive" 

should be changed to "reactive diluent adhesive" since that term is defined in the regulation. This 

is consistent with CT DEP's regulation. (General Dynamics) 

Response: The suggested change was made to the definition of"cyanoacrylate adhesive" in 

response to the comment. 

Comment: To avoid confusion, the definition of"laminate" should be changed to "a product 

made by bonding two or more sheets or layers." (General Dynamics) 

Response: 

comment. 

The suggested change was made to the definition of "laminate" in response to the 

Comment: For clarity, a statement should be added to the definition of"nonmembrane roof 

installation or repair adhesive" that states, "Adhesive intended for use in the installation of prefabricated single-ply roo( membrane is not 'nonmembrane roof installation or repair adhesive.'" 

(General Dynamics) 

Response: The regulation was not changed in response to this comment because the 

definition of "nonrnembrane roof installation or repair adhesive" in the proposed regulation states 

that it is "not intended for the installation of prefabricated single-ply flexible roofing membrane." 

Comment: The definition of"polyvinyl chloride plastic" specifies that it contains 57% 

chlorine. Like with CPVC, PVC can have a range of chlorine concentrations. Since PVC plastic 

is readily identified in commercial use, Rl DEM should delete this definition, as was done in 

Connecticut. (General Dynamics) 

Response: In response to this comment, the definition of"polyvinyl chloride plastic" was 

deleted. Note that the regulation continues to define "polyvinyl chloride welding adhesive" or 

"PVC welding adhesive" as "any adhesive intended by the manufacturer for use in the welding of 

PVC plastic pipe." 

Comment: The following statement should be added to the definition of"sealant": "Sealers 

and other materials that are applied to a single substrate to protect or decorate are not "sealants." 

(General Dynamics) 

Response: To be consistent with the CT DEP regulation, the above statement was added to 

the definition of "sealant." 

I I 
Comment: The wording of the definition of"single-ply roof membrane" should be changed 

to be consistent with the CT DEP regulation. (General Dynan1ics) 

Response: The wording change was made in response to the comment. 

Comment: The tem1 "tire tread adhesive" in the definitions should be changed to "tire retread 

adhesive to be consistent with Table 44-1 . (General Dynamics) 

Response: That tem1 was changed in response to the comment. 

Comment: Paragraphs 44.2.3(d) and 44.3.3(b) and the footnote to Table 44-2 should clarify 

that exempt compounds, as well as water, are not included in VOC content. 

Response: The words "and exempt compounds" were added to the exclusion of water in the 

calculation ofthe vapor pressure of a surface preparation solvent in 44.3.3(b). That phrase was 

not added to 44.2.3(d) or to the footnote because those statements refer to the weight VOC, Jess 

water, and VOC is defined to exclude the exempt compounds. 

12 
Commenters: 

Anne Arnold, Manager 

Air Quality ~Janning Unit 

US EPA Region 1 

.1 Congress St., Suite 1100 

Boston, MA 02114-2023 

Karen Hudson Desrosiers 

The Hudson Companies 

89 Ship St. 

Providence, RI 02903 

Julian Peckham 

Peckham Brothers Asphalt 

220 Paradise A venue, 

Middletown, RI 02842 

D. Douglas Fratz, Vice President, Scientific 

& Technical Affairs 

Joseph T. Yost, Director, Strategic Issues 

Advocacy 

Consumer Specialty Products Association 

900 17'h St, NW, Suite 300 

Washington, DC 20006 

Frances K. Wu, Associate General Counsel 

Personal Care Products Council 

1101 17'h St., NW, Suite 300 

Washington, DC 20036 

David F. Darling, P .E. 

Director, Environmental Affairs 

National Paint and Coatings Association 

1500 Rhode Island Ave., NW 

Washington, DC 20005 

Karen M. Bond 

Environmental Compliance Specialist 

Lord Corporation 

1000 West Grandview Blvd. 

Erie, P A 16509 

13 

Donna F. Elks 

Manager, Environmental Resources 

Management 

General Dynamics - Electric Boat 

7 5 Eastern Point Road 

Groton, CT 06340