ENCLOSURE 3

RECORD OF HEARING AND SUMMARY OF TESTIMONY

As required by 40 CFR 51.102(e), the complete record of the hearing, along with a list of witnesses and the text of the written presentations or summary of the oral presentations, is located at th e Air Division of the Department of Environmental Quality. The Department contact to access this information is the Director, Air Division.

As required by Section 2.1(h) of Appendix V of 40 CFR Part 51, a copy of the testimony received and responses there to, is attached. Included is a brief statement of the subject, the identification of the commenter, the summary of the comment and the response (analysis and action taken). Each issue is discussed in light of all of the

comments received that affect that issue. All comments have been reviewed and responses developed based on an evaluation of the issues raised in consideration of the overall goals and objectives of the air quality program and the intended purpose of

the document under review.

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- 3.DOCCOMMONWEALTH OF VIRGINIA

STATE AIR POLLUTION CONTROL BOARD

SUMMARY AND ANALYSIS OF PUBLIC TESTIMONY FOR

REGULATION REVISION D06
CONCERNING

CONSUMER AND COMMERCIAL PRODUCTS

(9VAC5 CHAPTER 45 )

INTRODU CTION

At the October, 2008 meeting, the Board authorized the Department to promulgate for public comment a proposed regulation revision concerning consumer and commercial products

.

A public hearing was advertised accordingly and held in the DEQ Northern Virginia Regional Office on July 22, 2009 and the public comment period closed on August 10,

2009 . The proposed regulation amendments subject to the hearing are summarized below followed by a summary of the public participation process and an analysis of the public testimony, along with the basis for the decision of the Board.

SUMMARY OF PROPOSED AMENDMENTS

The proposed regulation amendments concerned provisions covering consumer and commercial products . A summary of the amendments follows:

The propos ed regulatory action adds a new chapter (9VAC5

- 45) specifically for regulations pertaining to consumer and commercial products and is applicable to specific product types and the owners that are involved in the manufacture, distribution,

retail sales and i n some cases, the marketing and use of those products. In Part I of the new chapter, special provisions specify the general testing, monitoring, compliance, notification, recordkeeping and reporting requirements that are applicable to all articles

in the new chapter and specify certain other sections of the regulations that are not generally applicable. Exceptions to the special provisions are addressed in each individual article of the new chapter.

In Part II of the new Chapter 45:

1. The proposed regu latory action establishes standards for portable fuel containers for products manufactured before and after January 1, 2009 as new Articles 1 and 2 in Chapter 45, respectively, and applies to all of the products subject to the current provisions of Article 42 of 9VAC5

- 40, Emission Standards for Portable Fuel Container Spillage. Article 1 clarifies some Article 42 exemptions and definitions, adds anotherexemption category, removes obsolete standards and their associated administrative

requirements, and prov ides criteria for sell

- through of products. Because Article 1 applies to all products manufactured before January 1, 2009 and is designed to replace Article 42, the compliance schedule proposed for Article 1 is the same as that in Article

42. Article 2 a pplies to all portable fuel container products manufactured on or after January 1, 2009 and requires board pre

- certification of new portable fuel container products as compliant with new labeling requirements and with new and more stringent design and perf ormance standards. Article 2 also includes applicability to a new category of owner, and adds (i) new and revised exemptions, (ii) new certification procedures, (iii) new testing standards, and (iv) alternative compliance provisions for innovative products over those provisions now applicable under Article 42. The new Article 2 specifies a compliance deadline no later than January 1, 2009. Article 42 will be repealed at an appropriate time after the standards in the new Articles 1 and 2 are

effective.

2

. The proposed regulatory action establishes standards for consumer products manufactured before and after January 1, 2009 as a new Articles 3 and 4 in Chapter 45, respectively and applies to all of the products subject to the current provisions of

Article 5 0 of 9VAC5

- 40, Emission Standards for Consumer Products. Article 3 pertains to consumer products manufactured before January 1, 2009, clarifies some definitions and standards, makes the alternative control plan (ACP) procedures more flexible,

revises labe ling, reporting and other administrative requirements, and clarifies sell

through criteria. Because Article 3 applies to all products manufactured before January 1, 2009 and is designed to replace Article 50, the compliance schedule proposed for

Article 3 is the same as A rticle 50. Article 4 applies to all consumer products manufactured after January 1, 2009 and includes all of the changes made in Article 3, adds more definitions and standards for some new product categories and establishes new labeling a nd other administrative requirements. Article 4 specifies a compliance deadline no later than January 1, 2009. Article 50 will be repealed at an appropriate

time after the standards in the new Articles 3 and 4 are effective.

3

. The proposed regulatory a ction establishes standards for architectural and industrial maintenance coatings and incorporates all of the provisions of Article 49 of 9VAC5

- 40

, Emission Standards for Architectural and Industrial Maintenance Coatings into a new Article 5 in Chapter 45, except that the new Article 5 removes some obsolete reporting requirements and changes the remaining one to a recordkeeping requirement. Because the standards and other provisions of the new Article 5 are not substantively changed from what is in Article 49, no new compliance dates are proposed. Article 49 will be repealed at an appropriate time after the new Article 5 standards are effective.

4

. The proposed regulatory action will add a new regulation, Article 6 in the new chapter

45

, that establishes new emission standards for adhesives and sealants . The provisions of this article apply to owners who sell, supply, offer for sale or manufacture for sale commercial adhesives, sealants, adhesive primers or sealant primers that contain volatile organic co mpounds within the Northern Virginia and Fredericksburg VOC Emissions Control Areas. The provisions will also apply to owners that use, applyfor compensation or solicit the use or application of such products in those areas.

Exempted from the regulation is any such product manufactured in the Northern Virginia or Fredericksburg VOC Emissions Control Areas for shipment and use outside of these areas. The provisions of this regulation will not apply to a manufacturer or distributor who sells, supplies, or o ffers for sale such products that do not comply with the VOC standards as long as the manufacturer or distributor can demonstrate both that the product is intended for shipment and use outside of those areas and that the

manufacturer or distributor has tak en reasonable precautions to assure that the product is not distributed in those areas. A number of product

- specific exemptions are also allowed. VOC content limits are specified for different product categories. Control technology guidelines are offered as an alternate means of achieving compliance with the standards. Test methods, registration requirements and recordkeeping procedures are provided. This article specifies a compliance deadline of January 1, 2009.

5

. The proposed regulatory action establ ishes standards for asphalt paving operations and incorporates all of the provisions of Article 39 of 9VAC5

- 40, Emission Standards for Asphalt Paving Operations as a new Article 7 in Chapter 45. Applicability provisions in Article 7 apply to owners instea d of sources and a new definition of paving operations is added that clarifies the types of operations to which the provisions of the regulation apply. Since the standards and other provisions in this article are not substantively changed, no new complia nce date is proposed. Article 39 will be repealed at an appropriate time after the new Article 7 is effective.

SUMMARY OF PUBLIC PARTICIPATION PROCESS

A public hearing was held at the DEQ Northern Virginia Regional Office in Woodbridge

, Virginia on Jul y 22, 2009

. Four members of the general public attended the hearing,

with two of those offering oral or written testimony

. One additional set of written

comments w as received during the public comment period from one of the public hearing speakers . As r equired by law, notice of this hearing was given to the public on

or about June 8, 2009 in the Virginia Register and in two major newspapers on the Northern Virginia Air Quality Control Region (the Washington Times and the Fredericksburg Free

- Lance Star)

. In addition, personal notice of this hearing and the opportunity to comment was given by mail to those persons on the Department's list to receive notices of proposed regulation revisions. A list of hearing attendees and the complete text or an account o f each person's testimony is included in the hearing report which is on file at the Department.

ANALYSIS OF TESTIMONY

Below is a summary of each person's testimony and the accompanying analysis. Included is a brief statement of the subject, the identifi cation of the commenter, the text of the comment and the Board's response (analysis and action taken). Each issue is discussed in light of all of the comments received that affect that issue. The Board hasreviewed the comments and developed a specific r esponse based on its evaluation of

the issue raised. The Board's action is based on consideration of the overall goals and objectives of the air quality program and the intended purpose of the regulation.

1. SUBJECT : Uniform regulation provisions.

COMM ENTER : Joe Yost, Consumer Specialty Products Association (CSPA)

.

TEXT : CSPA strongly believes in the importance of promulgating uniform regulations for consumer products throughout the Ozone Transport Region (OTR). Thus, CSPA is on record as supporti ng the recently revised OTC Model Rule because it promotes uniform state regulations in broad regions of the country. The Department's new VOC limits are consistent with standards established by regulations adopted by

other states in the Mid

- Atlantic and Northeast Region. The fact that these VOC limits are consistent throughout the OTR makes these challenging new regulatory standards workable. Therefore, CSPA o ffers g eneral s upport for the Department’s p roposed

a mendment

.

RESPONSE : The D epartment app reciates the CSPA's support of the proposed revisions to the consumer products regulations. No changes have been made to the proposed regulation based upon this comment.

2. SUBJECT : Inappropriate effective dates.

COMMENTER : Joe Yost, CSPA

.

TEXT : As a threshold matter, the proposed January 1, 2009, effective date established by Articles 3 and 4 would create impermissible “after the fact” regulatory requirements. CSPA strongly urges the Department to establish an effective

date no earlier than Janu ary 1, 2010, for the VOC limits and related enforcement provisions in Articles 3 and 4.

RESPONSE : This comment is acceptable and appropriate changes reflecting the intent of the comment have been made to the proposal.

3. SUBJECT : Inappropriate effecti ve dates.

COMMENTER : Joe Yost, CSPA

.

TEXT : The Department should also revise Articles 3 and 4 to maintain

the additional 1

- year deferral of the standards applicable to all FIFRA

- regulated products. Any changes required for FIFRA

- related products w ill also require federal approval which takes about a year. CSPA supports an effective date no earlier than January 1, 2011, for all FIFRA

- regulated products.RESPONSE : This comment is acceptable and appropriate changes

reflecting the intent of the com ment have been made to the proposal.

4. SUBJECT : Enforcement overlap between consumer products

r egulations

.

COMMENTER : Joe Yost, CSPA

.

TEXT : CSPA supports the Department’s pro vision (9VAC5

- 45

- 310 D) in

Article 3 for dealing with products manufacture d before the effective date for the VOC limits. This provision is consistent with the parallel provision in the OTC Model Rule

and other states’ regulations. In addition, t his provision ensures efficient enforcement of this regulation and does not impose unnecessary administrative burdens on the

Commonwealth’s retailers.

RESPONSE : The Department appreciates the CSPA's support of the proposed revisions to the consumer products regulations. No changes have been made to the proposed regulation based upo n this comment.

5. SUBJECT : Availability of ACP information to the public.

COMMENTER : Joe Yost, CSPA

.

TEXT : The Department states that the proposed revisions to the current alternative control plan (ACP) provision make the current regulatory provis ion more flexible. CSPA agrees with this assessment and supports the proposed revisions to the ACP. However, CSPA has serious concerns about the proposed revisions to the manner in which the Department handles information submitted to meet the requirements of the ACP provision. Specifically, CSPA has serious concerns that, as currently drafted, proposed 9VAC5

- 45

- 320 K and 9VAC5

- 45

- 440 K would impose a burden of proof on manufacturers to make “...a showing satisfactory to the board under

9VAC5

- 170

- 60 B that th e information meets the criteria in 9VAC5

- 170

- 60 C...” before the information will be treated as confidential. CSPA believes that this proposed revision imposes a substantial and unnecessary burden of proof on companies seeking approval of an ACP agreement.

RESPONSE : The proposed language more closely meets the requirements of 9VAC5

- 170

- 60 in that such records must be made available to the public unless the owner makes an adequate demonstration that the information is confidential. Merely stating that t he information is a trade secret and requesting that it be withheld from the public as confidential is insufficient to meet the requirements of law and regulation . The Department has procedures in place to p rotect such

information until an owner either ma kes, or fails to make, an adequate demonstration. Virginia law and regulation requires that the information be made available to the public and places the burden on the owner to make the demonstration that it should bewithheld instead.

No changes have been made to the proposed regulation based upon this comment.

6. SUBJECT : Consumer products five

- year record retention requirement.

COMMENTER : Joe Yost, CSPA

.

TEXT: CSPA has concerns about the length of time that the Department will require companie s to maintain records. The proposal will require companies maintain records for five calendar years. CSPA respectfully recommends that Department revise this administrative requirement since it is inconsistent with common industry practices, and recordke eping provisions in EPA’s National Consumer Product Rule, California’s Consumer Products Regulation, the OTC Model Rule and several other states’ regulations, which only require companies to maintain records for three years. However, to be fair, several s tates impose a five

- year record

- retention period. But, since EPA, CARB and a majority of states with OTC

- based regulations impose a

three

- year recordkeeping requirement, CSPA recommends that the Department follow this approach.

RESPONSE : This comment is acceptable and appropriate changes reflecting the intent of the comment have been made to the proposal.

7. SUBJECT : Single

- ply roofing adhesive and sealants standards

.

COMMENTER : Phil Abraham, Vectre Corp. representing Jared Blum

, EP D M Roofing Assoc iation

.

TEXT : The proposal should be modified to allow a two

- year phase

- in period for the standards for single

- ply roofing adhesives, sealants and adhesive primers

in Table 45

- 6A so that the standards only apply from May 1, 2010 to September 30,
2010, from May 1, 2011 to September 30, 2011, and on and after January 1, 2012

.

RESPONSE : This comment is acceptable and appropriate changes reflecting the intent of the comment have been made to the proposal

.

8. SUBJECT : Single

- ply roofing adhesive and sea lants standards

.

COMMENTER : Phil Abraham, Vectre Corp. representing Jared Blum of

the EP D M Roofing Association

TEXT : The proposal should be modified to allow manufacturing,

distribution and sale of high

- VOC single

- ply roofing adhesives, sealants, a nd sealant primers year

- round during the phase

- in period (until January 1, 2012). Since the

necessary lead

- time for manufacturing, distribution and stocking sufficient high

- VOC product for use during the fall, winter and spring months of the phase

- in peri od is long

,a prohibition on the manufacture, distribution and sale of these products during the

summer months would cause unnecessary construction delays in the fall, winter and spring months. The new standards should not apply to the manufacture, distri bution and sale of single

- ply roofing products until January 1, 2012.

RESPONSE : This comment is acceptable and appropriate changes reflecting the intent of the comment have been made to the proposal.

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