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 Document 
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Pennsylvania Consumer Products 

On September 15, 2007, the Environmental Quality 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 rulemaking, 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 received during the public hearings and the 

written comments received from the public during the public comment period. Each 

public comment is provided with the identifying commentator number for each 

commentator that made that comment. A list of the commentators, including name, 

affiliation (if any), and location, can be found at the beginning of this document. In 

addition, the comments received from the Independent 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. 
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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 17101 

 
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General Support

1. Comment: The commentator supports the Department’s proposed amendments to 

Chapter 130, Subchapter B (Consumer products). (1) 

Response: The Department of Environmental Protection (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. Additionally, on March 12, 2008 EPA issued a 

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

2. Comment: The members of the Consumer Specialty Products Association (CSPA) 

appreciate the opportunity to work cooperatively with the Pennsylvania Department of 

Environmental Protection and other 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 commentators for their efforts in promoting 

regulatory standards needed by this Commonwealth and other member jurisdictions of 

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

Promulgation of Uniform Consumer Products 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 challenge 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 may 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 regulations is a practical necessity for small 

businesses since they generally lack the staff resources to ensure that the companies’ 
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products comply with a patchwork of different (and potentially conflicting) state-specific 

requirements. Therefore, CSPA strongly believes 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 commentators’ efforts in promoting 

regulatory standards for consumer products that are consistent throughout the OTR. The 

Department recognizes that promulgating consistent regulations across the OTC will 

assist companies in complying with these measures. The proposed rulemaking is 

consistent with regulatory initiatives recommended by the OTC to address transport of 

ozone precursor emissions throughout the OTR. 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 proposed amendments to the 

Commonwealth’s current Consumer Product Regulation since 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 Model 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 commentators’ efforts in promoting 

regulatory standards for consumer products that are consistent throughout the OTR. The 

Department recognizes that promulgating consistent regulations across the OTC will 

assist companies in complying with these measures. The proposed rulemaking is 

consistent with regulatory initiatives recommended by the OTC to address transport of 

ozone precursor emissions throughout the OTR. 

5. Comment: Members of the Personal Care Products Council (PCPC) (formerly the 

Cosmetic, Toiletry and Fragrance Association) have a strong interest in maintaining the 

quality and safety of the products they sell throughout the United States and beyond. 

While the members of the PCPC have supported 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 regulations ensure the feasibility of continuing to 

sell such products across state lines while maintaining consistent quality and safety. In 

the pursuit of this goal, the members of the PCPC have worked cooperatively with the 

EPA, the CARB, the OTC and the growing number of jurisdictions that have taken action 

to adopt the OTC Model Rule to ensure the greatest degree of consistency possible 

among the regulations of these many jurisdictions. (6) 

Response: The Department appreciates the commentators’ efforts in promoting 

regulatory standards for consumer products that are consistent throughout the OTR. The 

Department recognizes that promulgating consistent regulations across the OTC will 

assist companies in complying with these measures. The proposed rulemaking is 
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consistent with regulatory initiatives recommended by the OTC to address transport of 

ozone precursor emissions throughout the OTR. 

6. Comment: The members of the Personal Care 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 the OTC on the adoption of both its original 

regulation and the 2006 updated version. The Council’s support for these efforts stems 

from the critical need of Council members to have state regulations that are both 

technologically and commercially feasible for 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 are consistent throughout the OTR. The 

Department recognizes that promulgating consistent regulations across the OTC will 

assist companies in complying with these measures. The proposed rulemaking is 

consistent with regulatory initiatives recommended 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 ozone precursor emissions. 

Commentators commend the EQB for the promulgation 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 other 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. 
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• 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 June 18, 2007, with an effective date of 

January 1, 2009. 

• Massachusetts adopted its rule on October 19, 2007, with an effective date of 

January 1, 2009. 

• New Jersey published its proposed rulemaking 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 hearing in June, 2008, and intends to publish a 

final rule August 1, 2008, with an effective date of January 1, 2009. 

• New Hampshire, New York, Rhode Island, Virginia and the District 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 ozone precursor emissions. 

Commentators commend the EQB for the promulgation 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 Pennsylvania'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 Vermont, has or intends to adopt the OTC Model 

Rule, some with changes based on their need, discretion or regulatory procedure and 

formatting conventions. However, the VOC content limits of the products and the basic 

provisions of the rules are consistent across the jurisdictions. The minor differences 
8 

between the rules are not sufficient to interfere 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 ozone precursor emissions. 

Commentators commend the EQB for the promulgation 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 regulation 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-specific 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 products, but the cost increase is expected to be 

negligible because much of the reformulation 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 about $4000 per ton of VOC reduced. CARB 

further estimated that the average 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 research and reformulation costs incurred for 

products sold in California will not have to be incurred again for products sold in the 

OTR. 
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Using the OTR’s conservative estimate then, it is estimated that for Pennsylvania, if none 

of the reformulation had yet been completed, 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 annually. 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 much of this work has already been done 

because of similar regulatory efforts in California. 

Definitions – Reasonableness 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 definitions 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 place 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 larger containers of construction, panel 

and floor covering adhesives, contact adhesives and general purpose adhesives will be 

regulated by the Department’s proposed Chapter 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. For 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 related to, such as weight or volume. (7) 

Response: The Department agrees and has revised the definition of the term “deodorant 

body spray” in the final-form rulemaking to clarify 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 that the proposed effective date will allow 

sufficient time for companies to comply with the technology-forcing VOC limits. This 

reasonable “lead time” is particularly important for small- and medium-sized businesses 

that may only sell products in Pennsylvania (or 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 states formed a workgroup to discuss 

additional control measures for consumer products 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 associations, including the Consumer Specialty 

Products Association, the American Solvents Council and the Personal 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 familiar with the OTC 2006 final consumer 

products model rule, are supportive of the initiative, and are aware that this proposed 

regulation is under consideration for final-form rulemaking. 

Additionally, the majority of currently marketed products have already been reformulated 

to meet the California VOC limits which were adopted in July 2005. Most of these limits 

were effective in California by December 31, 2006. The proposed standards are identical 

to the California standards, thus the manufacturers 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 proposal 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 provision in the OTC 

Model Rule that imposes a sell-through 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 exhausting 
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any remaining stock within a three-year period. 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 shelves). 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 industry-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 Plan Provision (§ 130.452)

15. Comment: 

CSPA urges the Board to consider adopting a narrowly-tailored amendment to the 

Commonwealth’s current Alternative 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 current regulation expressly recognizes an ACP agreement 

approved by CARB pursuant to California Code of Regulations, Title 17, Subchapter 8.5, 

Article 4, §§ 94540-55. As a threshold matter, CSPA strongly supports Pennsylvania’s 

pragmatic approach for addressing this innovative and necessary regulatory provision. 

Given the fact that CARB expends a considerable 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 consultation with their agency lawyers, 

developed model language that balanced: (1) the need to preserve 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 process 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). 
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In reaching its decision to approve an ACP, CARB determines whether the aggregate 

emission credits exceed the aggregate emission deficits. 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 revised 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 three times). Consequently, it is possible that 

there may be a very limited number of instances 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 which 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 conditions established by 

CARB applicable to the exemption. 

Under CSPA’s proposed amendment, all emission credits used in CARB’s compliance 

calculations would still be subject to applicable VOC limits in Pennsylvania. Thus, this 

technical amendment ensures that a manufacturer with an approved ACP in California 

that includes one or more products not regulated in Pennsylvania, but which is still 
13 

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 regulation in Pennsylvania will allow the 

Department to make progress in achieving and maintaining the NAAQS. The Alternative 

Control Plan approach outlined in the final-form regulation preserves this 

Commonwealth’s right and obligation to determine on a case-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 allow 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 Association believes that, as written, 

the regulation may have the unintended effect of limiting the environmental benefits of 

the regulation. The commentator suggests adding 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 products regulation are consistent with the 

OTC’s Model Rule strategy, which is designed to reduce ozone precursors in the 

Commonwealth and downwind areas. The addition of the CSPA suggested language 

would create inconsistency among the member jurisdictions of the OTR. Moreover, 

adding the phrase “used for emission credits” 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 Pennsylvania 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 Offices and to all states preparing ozone 

State Implementation Plans. The memorandum 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 existing 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 percent 
14 

partial credit for those states with areas needing 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 measure plan in the Commonwealth’s attainment 

demonstration for the 8-hour ozone NAAQS for the Philadelphia area. Additionally, 

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

attainment demonstration for the Pittsburgh-Beaver Valley Area; the original 

redesignation request and maintenance plan submitted to EPA for the Pittsburgh region is 

no longer approvable because of a violation of the standard during the 2007 ozone 

season. The May 30, 2007, EPA memorandum referenced by the commentator stated 

that EPA’s consumer product rule revision would be proposed in June 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 anticipated for a particular area, any State 

claiming credit from the Federal rule will be responsible for developing measures to 

make up the shortfall.” In light of that, and 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 borders. Based on 2004-2006 data, at least 23 

counties are monitoring nonattainment of the March 12, 2008, 8-hour ozone standard. 

Proposed Language: Use of the Term ‘Designed’

18. Comment: The commentator notes one deviation from the OTC Model Rule that is 

problematic. Throughout the proposal, the term "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 commentator 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 "intended," which is largely in alignment with the 

federal Food and Drug Administration's intended 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 appearing on the label or in the labeling. By 

contrast, "formulated" refers to the ingredients and composition of a product, without 

reference to claims. As written, the current language of the proposal — "formulated or 

labeled" — suggests that a product can be defined solely on the basis of either 1) its 

claims, or 2) what may be in the product. Given the vast array of ingredients used in the 

personal care products industry and the fact that many ingredients 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 categorization on the basis of an ingredient or 

ingredients. Therefore, the proposal should be revised to use the term "designed" 

wherever it originally appeared in the definitional sections of the rule, 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 used 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 Exempt 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 (TBAC) 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 emissions. 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 helps to reduce ozone levels. (1, 2, 3)

 

Response: The Department appreciates the commentators’ support, and agrees that the 

general definitions of the terms “VOC-volatile organic compound” and “exempt solvent” 

found in § 121.1 (relating to definitions) apply to the consumer products subchapter. 

Additionally, the Department has added, at final, the term “VOC-volatile organic 

compound” to Chapter 130, Subchapter B, with the definition: “An organic compound 

which participates in atmospheric photochemical 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 having negligible photochemical reactivity.” 

20. Comment: Commentators state that Subchapter C (relating to architectural and 

industrial maintenance coatings) includes definitions 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 revise 
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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 rulemaking; the definition will read: “An organic 

compound which participates in atmospheric photochemical 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 having 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.