1 

## PENNSYLVANIA

CONSUMER PRODUCTS

25 Pa. Code Chapter 130, Subchapter B (relating to

consumer products) and Subchapter C (relating to architectural and industrial maintenance coatings)

37 Pa.B. 5117 (September 15, 2007)

Environmental Quality Board Regulation #7-416 (Independent Regulatory Review Commission #2636)



# Comment/Response Document2 

### Pennsylvania Consumer Products

On September 15, 2007, the Environmental Qu ality Board (Board, EQB) published a notice of public hearing and comment period on a proposed rulemaking concerning

revisions to 25 Pa. Code Chapter 130, Subchapter B to implement additional control measures for the consumer products category (37 Pa.B. 5117). The Board subsequently amended this notice by announcing revised dates for the public comment period and public hearings for this proposed ru lemaking, first on October 6, 2007, at 37 Pa.B. 5379 and then on October 27, 2007, at 37 Pa.B. 5799. The public comment period closed on December 26, 2007.

Three public hearings were held on the proposed rulemaking as follows:

November 26, 2007 Department of Environmental Protection 1 p.m. Rachel Carson State Office Building

Room 105

400 Market Street Harrisburg, PA 17105

November 26, 2007 Department of Environmental Protection 1 p.m. Southeast Regional Office

Delaware River Conference Room

2 East Main Street Norristown, PA 19401

November 26, 2007 Department of Environmental Protection 1 p.m. Southwest Regional Office

Waterfront A & B Conference Room

400 Waterfront Drive Pittsburgh, PA 15222

This document summarizes the testimony r eceived during the public hearings and the written comments received from the public during the public comment period. Each public comment is provided with the id entifying commentator number for each

commentator that made that comment. A list of the commentators, including name, affiliation (if any), and locati on, can be found at the beginning of this document. In addition, the comments received from the I ndependent Regulatory Review Commission (IRRC) are summarized and responses provided.

The Board invited each commentator to prepare a one-page summary of the commentator’s comments. One one-page summary was submitted for this rulemaking.3 

### Table of Commentators for the Environmental Quality Board Consumer Products Rulemaking #7-416 (IRRC #2636)

ID Name/Address Submitted one page Summary

for distribution to EQB Provided Testimony Requested Copy of Final Rulemaking

following EQB

Action

1. 2

. Daniel B. Pourreau, Ph.D.

Technical Adviser Lyondell Chemical Company Newtown Square, PA 19073 √ √

2. 2

. David F. Darling, P.E.

Director, Environmental Affairs National Paint and Coatings Association (NPCA) Washington, DC 2005

3. 2

. Alison Keane, Counsel

Government Affairs, NPCA Washington, DC 2005

4. Joseph Yost

Director of State Affairs Consumer Specialty Products Association (CSPA) Washington, DC 2008 √

5. 2

. D. Douglas Fratz

Vice President, Scientific &

Technical Affairs

CSPA Washington, DC 2006 √

6. Frances K. Wu, Esq.

Associate General Counsel

Personal Care Products Council Washington, DC 20036

7. Independent Regulatory Review

Commission Harrisburg, PA 171014 General Support

1. Comment: The commentator supports the Depa rtment’s proposed amendments to Chapter 130, Subchapter B (Consumer products). (1)

Response: The Department of Environmental Pr otection (Department) appreciates the commentator’s support of this rulemaking. The proposed rulemaking is consistent with regulatory initiatives recommended by the Ozone Transport Commission (OTC) to address transport of ozone precursor emissions throughout the Ozone Transport Region (OTR). The measures recommended by the OTC are reasonably necessary to achieve

and maintain the health-based 8-hour ozone National Ambient Air Quality Standard (NAAQS) in this Commonwealth. Add itionally, on March 12, 2008 EPA issued a

revised 8-hour ozone standard that coul d require additional emission reductions.

2. Comment: The members of the Consumer Sp ecialty Products A ssociation (CSPA) appreciate the opportunity to work cooperati vely with the Pennsyl vania Department of

Environmental Protection and ot her interested stakeholders in identifying regionally consistent technologically and commercially feasible regulatory standards needed by Pennsylvania (and other states) to achieve and/or maintain the eight-hour ground level ozone standard mandated by the federal Clean Air Act. (4, 5)

Response: The Department thanks the commenta tors for their efforts in promoting regulatory standards needed by this Commonwealth and othe r member jurisdictions of

the OTR to achieve and maintain th e 8-hour ozone NAAQS throughout the region.

Promulgation of Uniform Consumer Produc ts Regulations throughout the Ozone Transport Region

3. Comment:

Let the record clearly reflect the fact that the Board is proposing to incorporate stringent technology-forcing regulatory standards for 12 product categories that were adopted recently by the California Air Resources Board (CARB). These proposed volatile organic compound (VOC) standards may pose a significant challenge for some Consumer Specialty Products Association (CSPA) members. This challe nge could be particularly acute for the small- and medium-sized companies that manufacture and market their products on a regional (as opposed to a nationwide) basis.

Although some CSPA member companies ma y have legitimate concerns about the difficulty and expense that they may incur in complying with these new VOC limits contained in the Board’s proposed amendments, CSPA’s members support the promulgation of uniform regulations because it is vitally important that interstate commerce is not impaired by the promulgation of different state regulations in the OTR.

Moreover, adoption of uniform regional regula tions is a practical necessity for small businesses since they generally lack the staff resources to ensure that the companies’5 products comply with a patchwork of different (and potentially conflicting) state-specific requirements. Therefore, CSPA strongly beli eves that it is critically important that Pennsylvania and other OTR States promulgate uniform regulatory requirements for consumer products to improve air quality without imposing unnecessary impediments to interstate commerce. (4, 5)

Response: The Department appreciates the co mmentators’ efforts in promoting regulatory standards for consumer products th at are consistent throughout the OTR. The Department recognizes that promulgating co nsistent regulations across the OTC will assist companies in complying with thes e measures. The proposed rulemaking is consistent with regulatory initiatives reco mmended by the OTC to address transport of ozone precursor emissions throughout the OT R. The Department acknowledges that the OTC’s Model Rule is based on consumer product standards recently adopted by the

CARB.

4. Comment: CSPA supports the Board’s pr oposed amendments to the

Commonwealth’s current Cons umer Product Regulation sin ce these new provisions are

consistent with the OTC Model Rule. CSPA is on record as actively supporting the OTC’s efforts to revise its comprehensive M odel Rule that has – and will continue to – promote the adoption of uniform and consistent regulations throughout the Mid-Atlantic, Northeast and Midwest Regions. (4, 5)

Response: The Department appreciates the co mmentators’ efforts in promoting regulatory standards for consumer products th at are consistent throughout the OTR. The Department recognizes that promulgating co nsistent regulations across the OTC will assist companies in complying with thes e measures. The proposed rulemaking is consistent with regulatory initiatives reco mmended by the OTC to address transport of ozone precursor emissions throughout the OTR.

5. Comment: Members of the Personal Care Produc ts Council (PCPC) (formerly the Cosmetic, Toiletry and Fragrance Association) have a strong interest in maintaining the quality and safety of the products they se ll throughout the United States and beyond. While the members of the PCPC have suppor ted efforts by the U. S. Environmental Protection Agency (EPA) and environmental authorities in several states to reduce emissions from consumer products as part of their efforts to improve air quality, it is of critical importance that implementing regulatio ns ensure the feasibility of continuing to sell such products across state lines while ma intaining consistent quality and safety. In the pursuit of this goal, the members of th e PCPC have worked cooperatively with the EPA, the CARB, the OTC and the growing numbe r of jurisdictions that have taken action to adopt the OTC Model Rule to ensure th e greatest degree of consistency possible among the regulations of these many jurisdictions. (6)

Response: The Department appreciates the co mmentators’ efforts in promoting regulatory standards for consumer products th at are consistent throughout the OTR. The Department recognizes that promulgating co nsistent regulations across the OTC will assist companies in complying with thes e measures. The proposed rulemaking is6 consistent with regulatory initiatives reco mmended by the OTC to address transport of ozone precursor emissions throughout the OTR.

6. Comment: The members of the Personal Ca re Products Council commend DEP on substantially adhering to the revised OTC Model Rule in its development of the current proposal. The Council worked closely with th e OTC on the adoption of both its original regulation and the 2006 updated ve rsion. The Council’s suppor t for these efforts stems

from the critical need of Council members to have state regulations that are both technologically and commercially feasible fo r compliance and that permit the sale of uniform products across state lines. (6)

Response: The Department appreciates the Council ’s efforts in promoting regulatory standards for consumer products that ar e consistent throughout the OTR. The Department recognizes that promulgating co nsistent regulations across the OTC will assist companies in complying with thes e measures. The proposed rulemaking is consistent with regulatory initiatives reco mmended by the OTC to address transport of ozone precursor emissions throughout the OTR.

7. Comment:

In the Preamble, the EQB states:

This proposed rulemaking is consistent with regulatory initiatives that will be undertaken in other jurisdictions in the Ozone Transport Region to address regional transport of oz one precursor emissions.

Commentators commend the EQB for the promul gation of a regulation that is consistent with other regulations being implemented throughout the Ozone Transport Region. We agree that this will minimize the impact of the regulation on businesses and competition. However, the EQB is not in control of the actions taken in the other Ozone Transport Region jurisdictions. If other jurisdictions were to implement different regulations or do their regulations on a different timetable, Pennsylvania businesses and consumers could be disadvantaged. Therefore, in the final-form submittal of this regulation, the EQB should explain the following:

• The status of the implementation in ot her Ozone Transport Region jurisdictions.

The EQB's response will be used in our consideration of whether the final-form regulation is in the public interest. (7)

Response:

As per the request of the commentator, a summary of the status of the adoption of consumer product amendments consistent with the OTC Model Rule is provided herein.7 • Connecticut adopted its rule on July 26, 2007, with an effective date of January 1, 2009.

• Maine adopted its rule on December 15, 2007, with an effective date of January 1, 2009.

• Maryland adopted its rule on J une 18, 2007, with an effective date of January 1, 2009.

• Massachusetts adopted its rule on Octobe r 19, 2007, with an effective date of January 1, 2009.

• New Jersey published its proposed ru lemaking on November 5, 2007, and the public comment period closed January 4, 2008. New Jersey proposed an effective date of January 1, 2009.

• Delaware intends to hold a public hear ing in June, 2008, and intends to publish a final rule August 1, 2008, with an e ffective date of January 1, 2009.

• New Hampshire, New York, Rhode Island, Vi rginia and the Dist rict of Columbia have rules in development.

8. Comment:

In the Preamble, the EQB states:

This proposed rulemaking is consistent with regulatory initiatives that will be undertaken in other jurisdictions in the Ozone Transport Region to address regional transport of oz one precursor emissions.

Commentators commend the EQB for the promul gation of a regulation that is consistent with other regulations being implemented throughout the Ozone Transport Region. We agree that this will minimize the impact of the regulation on businesses and competition. However, the EQB is not in control of the actions taken in the other Ozone Transport Region jurisdictions. If other jurisdictions were to implement different regulations or do their regulations on a different timetable, Pennsylvania businesses and consumers could be disadvantaged. Therefore, in the final-form submittal of this regulation, the EQB should explain the following:

• A comparison of the content of the regulations promulgated by other Ozone Transport Region jurisdictions with Pe nnsylvania's final-form regulation.

The EQB's response will be used in our consideration of whether the final-form regulation is in the public interest. (7)

Response:

Each jurisdiction, with the exception of Verm ont, has or intends to adopt the OTC Model Rule, some with changes based on their ne ed, discretion or regul atory procedure and formatting conventions. However, the VOC co ntent limits of the products and the basic provisions of the rules are c onsistent across the jurisdicti ons. The minor differences8 between the rules are not sufficient to interfer e with the development of a regional control strategy or regional market.

9. Comment:

In the Preamble, the EQB states:

This proposed rulemaking is consistent with regulatory initiatives that will be undertaken in other jurisdictions in the Ozone Transport Region to address regional transport of oz one precursor emissions.

Commentators commend the EQB for the promul gation of a regulation that is consistent with other regulations being implemented throughout the Ozone Transport Region. We agree that this will minimize the impact of the regulation on businesses and competition. However, the EQB is not in control of the actions taken in the other Ozone Transport Region jurisdictions. If other jurisdictions were to implement different regulations or do their regulations on a different timetable, Pennsylvania businesses and consumers could be disadvantaged. Therefore, in the final-form submittal of this regulation, the EQB should explain the following:

• How Pennsylvania's final-form regul ation minimizes the economic impact on Pennsylvania businesses and consumers.

The EQB's response will be used in our consideration of whether the final-form regulation is in the public interest. (7)

Response:

The final-form amendments to Chapter 130, Subchapter B, Consumer Products, are

uniform and consistent with the OTC Model Rule and the consumer product regulations promulgated by the other member jurisdictions of the OTR. Manufacturers will not need to develop a Pennsylvania-spec ific product to comply with the final-form rulemaking.

The amendments to Chapter 130, Subchapter B, Consumer Products, may slightly increase costs to purchasers of consumer produc ts, but the cost increas e is expected to be negligible because much of the reformul ation of products has been completed as manufacturers developed products to meet these limits in other areas of the country.

CARB estimated that the cost effectiveness of VOC limits with an effective date (in California) of December 31, 2006, to be a bout $4000 per ton of VOC reduced. CARB

further estimated that the aver age increase in cost per unit to the manufacturer to be about $0.16 per unit. Assuming CARB’s estimates for the OTR provides a conservative estimate, because some of the one-time res earch and reformulation costs incurred for products sold in California will not have to be incurred again for products sold in the

OTR.9 Using the OTR’s conservative estimate then, it is estimated that for Pennsylvania, if none of the reformulation had yet been comple ted, the reduction of VOC content for the affected consumer products would cost approximately $4000 per ton of emissions

reduced. The VOC emission reduction benefit for the additional regulated consumer products is estimated to be 2.1 tons per day (tpd) and 767 tons annuall y. It is estimated that the reductions will be approximately 0.13 pound per resident per year. Total cost to the users is estimated to be approximately $3.1 million. This is an average of $0.26 per resident per year.

The production of low-VOC consumer products for these additional categories may require some new product development, but mu ch of this work has already been done because of similar regulatory efforts in California.

Definitions – Reason ableness and Clarity

10. Comment: Exemptions:

The definition of "Construction, panel and floor covering adhesive" exempts products that "weigh more than 1 pound and consist of more that 16 fluid ounces, less packaging." There are similar exemptions in the defin itions of "Contact adhesive" and "General purpose adhesive." Why did the EQB place no limit on the VOC content of large containers of these products, but then pl ace the limits in Section 130.211 on the identical product in a smaller container? The EQB should explain why these exemptions are reasonable and will not adversely affect the stated goal to reduce VOCs emitted from consumer products. (7)

Response: The Department anticipates that the la rger containers of construction, panel and floor covering adhesives, contact adhesi ves and general purpose adhesives will be regulated by the Department’s proposed Ch apter 130, Subchapter D amendment, relating to adhesives, sealants and primers. The Subchapter D amendment will be consistent with the requirements of the OTC 2006 Adhesives, Sealants and Primers Model Rule and is scheduled to be proposed to the EQB in the summer of 2008.

11. Comment: Deodorant Body Spray:

Paragraphs (i) and (ii) of this definition refer to a "product with 20% or less fragrance." It is not clear how to apply the 20% figure. Fo r example, the "Table of Standards" in Section 130.211 uses "percent VOC by weight ." (Emphasis added.) The regulation should specify what the 20% figure is relate d to, such as weight or volume. (7)

Response: The Department agrees and has revise d the definition of the term “deodorant body spray” in the final-form rulemaking to cl arify that the 20% fragrance is by weight.10 Reasonable Effective Date (§ 130.211)

12. Comment: As currently drafted, the proposed regulation establishes an effective date of January 1, 2009, for the new VOC limits and related administrative and enforcement provisions. CSPA believes th at the proposed effective date will allow sufficient time for companies to comply w ith the technology-forci ng VOC limits. This reasonable “lead time” is particularly importa nt for small- and medium-sized businesses that may only sell products in Pennsylvania (o r in the Mid-Atlantic Region) since these companies will likely need time to ensure that their products comply with these strict new regulatory limits. (4, 5)

Response: The Department appreciates the commentators’ support.

13. Comment: As of the date of these comments, the regulation requires compliance in less than a year. The EQB should explain how the effective date of January 1, 2009, is reasonable and feasible for businesses and consumers. (7)

Response: The staff of the OTC and member stat es formed a workgroup to discuss additional control measures for consumer produc ts during a series of conference calls and workshops held from the spring of 2004 through the autumn of 2006. Representatives of the major consumer products trade associ ations, including the Consumer Specialty Products Association, the American Solven ts Council and the Pe rsonal Care Products Council, participated in several of the conference calls with the OTC Workgroup and worked with the group to set the date of January 1, 2009, as the effective date. The members of these industry groups are fa miliar with the OTC 2006 final consumer products model rule, are supportiv e of the initiative, and are aware that this proposed regulation is under consideration for final-form rulemaking.

Additionally, the majority of cu rrently marketed products have already been reformulated

to meet the California VOC limits which were adopted in July 2005. Mo st of these limits were effective in California by December 31, 2006. The proposed standards are identical to the California standards, thus the manu facturers of the regulated products have had over two years to develop compliant products.

Sell-through of Products Manufactured Before the Applicable Effective Date (§ 130.217)

14. Comment: CSPA supports the Board’s propos al for dealing with products manufactured before the applicable effective date for the VOC limits. See proposed § 130.217. This provision is entirely consistent with the parallel pr ovision in the OTC Model Rule that imposes a sell-thr ough limitation only on products that do not display

either the date of manufacture or an appropriate date code.

Marketing studies conducted several years ago concluded consistently that at least 90% of all consumer products are sold within one year after the date of manufacture. More than 90% of the remaining products are sold in the second and third year, thus exhausting11 any remaining stock within a three-year pe riod. This trend is increasing as “big box” stores like Wal-Mart, Target and others focus relentlessly on product sales “velocity” ( i.e ., the time a product remains on the store sh elves). Simply stated, if a particular manufacturer’s products cannot be sold quickly, the “big box” stores simply switch to a competitive manufacturer’s product.

In summary, the practical realities of i ndustry-wide competition and prevailing retailer practices result in the overwhelming number of products being sold within the 12-18 months after the date of manufacture. (4, 5)

Response: The Department appreciates the commentators’ support.

Alternative Control Pl an Provision (§ 130.452)

15. Comment:

CSPA urges the Board to consider adopti ng a narrowly-tailored amendment to the

Commonwealth’s current Alte rnative Control Plan (ACP) provision. (§ 130.452)

CSPA’s recommended amendment will have the effect of producing a measurable net environmental benefit for Pennsylvania.

As currently drafted, the cu rrent regulation expressly recognizes an ACP agreement approved by CARB pursuant to California C ode of Regulations, T itle 17, Subchapter 8.5, Article 4, §§ 94540-55. As a threshold matte r, CSPA strongly supports Pennsylvania’s pragmatic approach for addressing this innova tive and necessary regulatory provision. Given the fact that CARB expends a consider able amount of time and effort to review and approve an ACP, it makes little practical sense for Pennsylvania (or other states) to mechanically duplicate California’s intricate and complicated process. Moreover, the OTC Consumer Products Workgroup, in cons ultation with their agency lawyers, developed model language that ba lanced: (1) the need to pres erve state sovereignty; and (2) the recognition that it is both unrealistic and unreasonable for any state agency to attempt to duplicate CARB’s comprehensive review process for approving an ACP.

1. Before granting an ACP, CARB carefully weighs the environmental benefits against

the environmental deficits.

As part of CARB’s very thorough review pro cess in considering a company’s request for an ACP, the agency balances the following considerations:

Emission deficit – one or more products that exceed the applicable VOC limit; and

Emission credit – one or more products with a VOC content that is lower than the applicable limit ( i.e ., produces a net environmental benefit).12 In reaching its decision to approve an ACP, CARB determines whether the aggregate emission credits exceed the aggregate emission de ficits. The end result is a net positive for the environment ( i.e ., the pluses outweigh the minuses).

2. As currently written, the Commonwealth ’s ACP Provision may have the unintended effect of limiting the environmental benefits.

Since 1989, CARB has continuously revise d the California Consumer Products Regulation. As part of this process, CARB has promulgated new VOC limits for previously unregulated product categories. In addition, CARB continues to set new and more restrictive VOC limits for currently regulated products (some of these product categories have been regulated as many as thre e times). Consequently, it is possible that there may be a very limited number of inst ances some products used in CARB’s ACP compliance calculations may not be subject to the VOC limits set forth in the Table of Standards at § 130.211.

As currently drafted, the Commonwealth’s ACP provision could have the unintended effect of denying a CARB-approved ACP simply because one (or more) products in the emission deficit side of the equation may not be subject to the VOC limits in the Table of Standards. In this situation, the overall uncontrolled emissions ( i.e ., environmental burden) in Pennsylvania would actually be less than the total emission deficit used by CARB to calculate the compliance average. Consequently, the Commonwealth will

receive a positive overall increase in total emission credits ( i.e ., a net environmental benefit).

To remedy this unintended problem, CSPA urges the Board to make the following

technical revision to the current ACP provision set forth at 25 Pa. Code § 130.452.

( Italicized text = CSPA text added to the Board’s proposed regulation)

§ 130.452. Exemption.

A manufacturer of consumer products whic h has been granted an ACP agreement by the CARB under the ACP provision in Subchapter 8.5, Article 4, Sections 94540-94555, of Title 17 of the CCR shall be exempt from § 130.211 (relating to table of standards) for the period of time that the CARB ACP agreement remains in effect provided that all ACP products used for emissions credits within the CARB ACP agreement are contained in § 130.211. A manufacturer claiming such an ACP agreement on this basis shall submit to the Department a copy of the CARB ACP decision (that is, the Executive Order), including the conditi ons established by CARB applicable to the exemption.

Under CSPA’s proposed amendment, all emission credits used in CARB’s compliance calculations would still be subj ect to applicable VOC limits in Pennsylvania. Thus, this

technical amendment ensures that a manufact urer with an approved ACP in California that includes one or more products not regu lated in Pennsylvania, but which is still13 producing a net environmental benefit would not inadvertently be denied an ACP in Pennsylvania. Moreover, this revision would make Pennsylvania’s ACP provision consistent with the corresponding provision in the Ohio EPA’s recently promulgated final regulation and the Illinois EPA’s final draft regulation. (4, 5)

Response: The amendments to the Consumer Products regulation are designed to

reduce VOC emissions within our borders and downwind areas in the OTR. The promulgation and implementation of the re gulation in Pennsylva nia will allow the Department to make progress in achieving a nd maintaining the NAAQS. The Alternative Control Plan approach outlined in the final-form regulation preserves this Commonwealth’s right and oblig ation to determine on a cas e-by-case basis if an ACP will be environmentally beneficial, prior to granting approval of the plan. Adding the phrase “used for emission credits” would allo w noncomplying product to be sold in this

Commonwealth that could not be sold elsewhere in the OTR. Therefore, the requested exception has not been included in the final-form regulation.

16. Comment: The Consumer Specialty Products A ssociation believes that, as written, the regulation may have the unintended effect of limiting the environmental benefits of the regulation. The commentator suggests ad ding the phrase "used for emission credits"

to this section so that the first sentence of this section in the final regulation would end: "...provided that all ACP products used for emission credits within the CARB ACP agreement are contained in § 130.211." (Emphasis added.) The EQB should consider including this phrase in the final-form regulation. (7)

Response: While the Department appreciates the point that the CSPA makes in its comment, the amendments to the consumer pr oducts regulation are c onsistent with the OTC’s Model Rule strategy, which is desi gned to reduce ozone precursors in the

Commonwealth and downwind areas. The a ddition of the CSPA suggested language would create inconsistency among the member jurisdictions of the OTR. Moreover, adding the phrase “used for emission cred its” would allow noncomplying product to be

sold in this Commonwealth that could not be sold in the other OTC states. The Department does not see a need to create such an exception.

Is Proposal Needed to Meet SIP Commitments?

17. Comment: We raise the threshold question of whether it is necessary to proceed with the current proposal for the state of Pe nnsylvania to meet its SIP commitments. On May 30, 2007, the Director of the U.S. EPA's Office of Air Quality Planning Standards issued a memorandum to U.S. EPA Regional O ffices and to all states preparing ozone State Implementation Plans. The memora ndum establishes the VOC Emission Reduction

Credits that states can claim due to the U. S. EPA commercial and consumer product rules to be proposed imminently (proposed rule scheduled for publication in early 2008), with new limits to take effect January 1, 2009. The U.S. EPA will allow a per capita Emission Reduction Credit (i.e., percent beyond ex isting rule) of 0.9 pounds per capita (or 29 percent) beyond that achieved by the 1998 regulation for consumer and commercial products. In addition, the memorandum states that the U.S. EPA will provide 75 percent14 partial credit for those states with areas n eeding reduction credits in earlier years (e.g., 2008). This credit is justified by the fact that the majority of currently marketed products have already been reformulated to meet the California VOC limits. The commentator therefore urges DEP to seriously consider suspending action on its current proposal. Avoiding an additional state rulemaking proceeding would substantially simplify compliance and enforcement, reduce the costs of regulation, and dispel any chance of unintended but significant differences between the regulations. (6)

Response: Emission reductions from this consumer product rulemaking are necessary as they are identified in the contingency meas ure plan in the Commonwealth’s attainment demonstration for the 8-hour ozone NAAQS for the Philadelphia area. Additionally,

emission reductions from this rulema king will support the 8-hour ozone NAAQS

attainment demonstration for the Pittsbur gh-Beaver Valley Area; the original redesignation request and maintenance plan submitted to EPA for the Pittsburgh region is no longer approvable because of a violati on of the standard during the 2007 ozone season. The May 30, 2007, EPA memorandum refe renced by the commentator stated that EPA’s consumer product rule revision w ould be proposed in J une 2007 and finalized in December 2007, with compliance being required by January 1, 2009. The EPA now expects to propose the rule in May of 2008, with compliance required by May 1, 2009. Additionally, the EPA notes on page 4 of its May 30, 2007, memorandum that, “... if the EPA rule does not provide the reduction antic ipated for a particular area, any State claiming credit from the Federal rule will be responsible for developing measures to make up the shortfall.” In li ght of that, a nd the fact that on March 12, 2008, the EPA

announced a revised 8-hour ozone standard of 0.075 parts per million, it is important for the Commonwealth to develop and implement emission reduction strategies to reduce ozone precursor emissions within our bor ders. Based on 2004-2006 data, at least 23 counties are monitoring nonattain ment of the March 12, 2008, 8-hour ozone standard.

Proposed Language: Use of the Term ‘Designed’

18. Comment: The commentator notes one deviati on from the OTC Model Rule that is problematic. Throughout the proposal, the te rm "designed" appears to have been replaced with "formulated or labeled" — e.g., a "hair mousse" is defined as a "hairstyling

foam formulated or labeled [replacing `designed'] to facilitate styling of a coiffure and provide limited holding power." The commenta tor believes the proposal should revert to the use of the term "designed" throughout, to promote consistency with the OTC Model Rule. "Designed" has a connotation of "intende d," which is largely in alignment with the federal Food and Drug Administration's intende d use doctrine. This doctrine basically holds that the intended use of the product is determined by the claims a manufacturer makes about the product, i.e., claims appear ing on the label or in the labeling. By contrast, "formulated" refers to the ingr edients and composition of a product, without reference to claims. As written, the current language of the propos al — "formulated or labeled" — suggests that a pr oduct can be defined solely on the basis of either 1) its claims, or 2) what may be in the product. Gi ven the vast array of ingredients used in the personal care products industry a nd the fact that many ingred ients are used for multiple product categories, it would be a fundamental policy shift, not to mention impracticable,15 for the state to decide a product's categoriz ation on the basis of an ingredient or ingredients. Therefore, th e proposal should be revised to use the term "designed" wherever it originally appeared in the definiti onal sections of the ru le, or, alternatively,

"formulated and labeled" — but not "formulated or labeled." (6)

Response: The Department appreciates the commentator’s concern about the change from the use of the word “designed” to the phrase “formulated or labeled.” The Department has reverted to the wording us ed by the OTC Model Rule for all of the

definitions.

Definition of VOC and Exempt Solvent

19. Comment: Commentators are pleased to see that the proposed amendments are

silent on the definition of a VOC or an Exem pt Solvent, which means that the general definitions in Chapter 121.1 will apply to the amended consumer products rule. Both definitions make reference to the federal definition of a VOC, which was last amended in 2004 to exclude tertiary butyl acetate (TBA C) based on its negligible ozone-forming potential. This reference to the federal definition was a key reason why Pennsylvania

was one of the first states to be able to use TBAC as a tool to reduce ozone formation from a variety of product and point source em issions. Your VOC rules are, therefore, automatically updated when the US EPA excludes a compound from the VOC definition.

This saves DEP resources and allows the quick use of negligibly reactive compounds instead of reactive ones, which help s to reduce ozone levels. (1, 2, 3)

Response: The Department appreciates the comme ntators’ support, and agrees that the general definitions of the te rms “VOC-volatile organic compound” and “exempt solvent” found in § 121.1 (relating to definitions) appl y to the consumer products subchapter. Additionally, the Department has added, at final, the term “VOC-volatile organic compound” to Chapter 130, Subchapter B, w ith the definition: “An organic compound which participates in atmospheric photoche mical reactions; that is, an organic compound

other than those which the Administra tor of the EPA designates in 40 CFR 51.100 (relating to definitions) as having ne gligible photochemical reactivity.”

20. Comment: Commentators state that Subchapter C (relating to architectural and industrial maintenance coatings) includes de finitions for the terms VOC and Exempt Compounds that are inconsistent with the federal definitions, Pennsylvania’s general definitions, Pennsylvania’s consumer products definitions and those of all other OTC

states. These outdated definitions were left over from the OTC model rule and should be

deleted.

Commentators respectfully request that the Board approve the deletion of the VOC and Exempt compound definitions in Subchapter C as part of the final consumer products rule. This will harmonize the Pennsylvania VOC definitions and make the latest VOC exempt compounds available as tools to reduce ozone and PM formation from architectural coating emissions statewide. It will also eliminate the need to revise16 Subchapter C each time the federal VOC definition is amended, thus saving DEP resources. (1, 2, 3)

Response: The requested revision is within the scope of this rulemaking. The Department has revised the definition of the term “VOC-volatile organic compound” in Chapter 130, Subchapter C and added this term and definition to Subchapter B as part of this final-form consumer products rulemaki ng; the definition will read: “An organic compound which participates in atmospheric ph otochemical reactions; that is, an organic compound other than those which the Administrator of the EPA designates in 40 CFR 51.100 (relating to definitions) as ha ving negligible photochemical reactivity.” This revision will harmonize the VOC definitions in Chapters 121 and 130 and in Subchapters B and C of Chapter 130, and will make the most currently VOC exempt compounds available as tools to reduce ozone and particulate matter formation. The term “exempt compound” and its definition in Subchapter C did not need revision.