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 the 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 thereto, 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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COMMONWEALTH 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)

INTRODUCTION

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 proposed 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 in 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 regulatory 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 another 
exemption category, removes obsolete standards and their associated administrative 

requirements, and provides 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 applies 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 performance 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 50 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 labeling, reporting and other administrative requirements, and clarifies sellthrough 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 Article 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 and 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 action 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 compounds within the Northern Virginia and Fredericksburg 

VOC Emissions Control Areas. The provisions will also apply to owners that use, apply 
for 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 offers 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 taken 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 establishes 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 instead 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 compliance 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 July 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 was received during the public comment period from one of the public 

hearing speakers. As required 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 of 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 identification 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 has 
reviewed the comments and developed a specific response 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.

COMMENTER: 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 supporting 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 offers general support for the Department’s proposed 

amendment.

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 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 January 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 effective 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 will 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 comment have been made to the proposal.

4. SUBJECT: Enforcement overlap between consumer products

regulations.

COMMENTER: Joe Yost, CSPA.

TEXT: CSPA supports the Department’s provision (9VAC5-45-310 D) in 

Article 3 for dealing with products manufactured 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, this 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 upon 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 provision 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 the 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 the 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 protect such 

information until an owner either makes, 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 be 
withheld 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 companies 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 recordkeeping 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 states 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, 

EPDM Roofing Association.

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 sealants standards.

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

the EPDM Roofing Association

TEXT: The proposal should be modified to allow manufacturing, 

distribution and sale of high-VOC single-ply roofing adhesives, sealants, and 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 period 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, distribution 

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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