New York Codes, Rules and Regulations › Title 6 - DEPARTMENT OF ENVIRONMENTAL CONSERVATION › Chapter III - AIR RESOURCES › Subchapter A - PREVENTION AND CONTROL OF AIR CONTAMINATION AND AIR POLLUTION › Part 235 - Consumer Products › Subpart 235-11 - Alternative Control Plan (ACP) for Consumer Products › Section 235-11.1 - Alternative control plan for consumer products

Current through Register Vol. 46, No. 28, July 10, 2024
The purpose of this Subpart is to provide an alternative
						method to comply with the Table of Standards specified in section
						235-3.1(a)  of this
						Part. This alternative is provided by allowing responsible ACP parties the
						option of voluntarily entering into separate alternative control plans for
						consumer products, as specified in Subparts 235-1 through 235-11 of this Part.
						Only responsible ACP parties for consumer products may enter into an ACP. When
						approved by the director, Division of Air Resources, Department of
						Environmental Conservation, the Alternative Control Plan (ACP) will be
						submitted to the United States Environmental Protection Agency as a State
						Implementation Plan revision for approval.
(a) Any manufacturer of consumer products
					 which have been granted an ACP agreement by the CARB under the provisions in
					 sections 94540-94555 of Title 17 of the California Code of Regulations (see
					 Table 1, section
					 200.9  of this Title) shall be
					 exempt from the Table of Standards in section
					 235-3.1(a)  of this
					 Part for the period of time that the CARB ACP agreement remains in effect
					 provided that all ACP products within the CARB ACP agreement are contained in
					 the Table of Standards in section
					 235-3.1(a)  of this
					 Part. Any manufacturer claiming such an ACP agreement on this basis must submit
					 to the director, Division of Air Resources, Department of Environmental
					 Conservation a copy of the CARB ACP decision ('i.e.', the Executive Order),
					 including all conditions established by CARB applicable to the
					 exemption.
(b) Manufacturers of
					 consumer products that have been granted an ACP agreement under the ACP
					 provision in sections 94540-94555 of Title 17 of the California Code of
					 Regulations (see Table 1, section
					 200.9  of this Title) based on
					 California specific data, or that have not been granted an exemption by the
					 CARB may seek an ACP agreement in accordance with subdivisions (c) through (m)
					 of this section.
(c) 'Requirements
					 and process for approval of an ACP'.
(1) To be
					 considered by the director, Division of Air Resources, Department of
					 Environmental Conservation for approval, an application for a proposed ACP
					 shall be submitted in writing to the director, Division of Air Resources,
					 Department of Environmental Conservation by the responsible ACP party and shall
					 contain all of the following:
(i) an
					 identification of the contact persons, phone numbers, names and addresses of
					 the responsible ACP party which is submitting the ACP application and will be
					 implementing the ACP requirements specified in the ACP agreement;
(ii) a statement of whether the responsible
					 ACP party is a small business or a one-product business, as defined in section
					 235-2.1(fg) and
					 235-2.1(dx)  of
					 this Part;
(iii) a listing of the
					 exact product brand name, form, available variations (flavors, scents, colors,
					 sizes, etc.), and applicable product category(ies) for each distinct ACP
					 product that is proposed for inclusion in the ACP;
(iv) for each proposed ACP product identified
					 in subparagraph (iii) of this paragraph, a demonstration to the satisfaction of
					 the director, Division of Air Resources, Department of Environmental
					 Conservation that the enforceable sales records to be used by the responsible
					 ACP party for tracking product sales meet the minimum criteria specified in
					 clause ('e') of this subparagraph. To provide this demonstration, the
					 responsible ACP party shall do all of the following:
('a') provide the contact persons, phone
					 numbers, names, street and mail addresses of all persons and businesses who
					 will provide information that will be used to determine the enforceable sales;
					 and
('b') determine the enforceable
					 sales of each product using enforceable sales records as defined in section
					 235-2.1(bk)  of
					 this Part; and
('c') demonstrate, to
					 the satisfaction of the director, Division of Air Resources, Department of
					 Environmental Conservation, the validity of the enforceable sales based on
					 enforceable sales records provided by the contact persons or the responsible
					 ACP party; and
('d') calculate the
					 percentage of the gross New York State sales, as defined in section
					 235-2.1(ck)  of
					 this Part which is comprised of enforceable sales; and
('e') determine which ACP products have
					 enforceable sales which are 75 percent or more of the gross New York State
					 sales. Only ACP products meeting this criteria shall be allowed to be sold in
					 the State of New York under an ACP;
(v) for each of the ACP products identified
					 in clause (iv)('e') of this paragraph, the inclusion of the following:
('a') legible copies of the existing labels
					 for each product;
('b') the VOC
					 content and LVP content for each product. The VOC content and LVP content shall
					 be reported for two different periods, as follows:
('1') the VOC and LVP contents of the product
					 at the time the application for an ACP is submitted; and
('2') any VOC and LVP contents of the
					 product, which have occurred at any time within the four years prior to the
					 date of submittal of the application for an ACP, if either the VOC or LVP
					 contents have varied by more than plus/minus ten percent (+ 10.0%) of the VOC
					 or LVP contents reported in subclause ('l'), of this
					 clause;
(vi) a
					 written commitment obligating the responsible ACP party to date-code every unit
					 of each ACP product approved for inclusion in the ACP. The commitment shall
					 require the responsible ACP party to display the date-code on each ACP product
					 container or package no later than five working days after the date an ACP
					 agreement approving an ACP is signed by the director, Division of Air
					 Resources, Department of Environmental Conservation;
(vii) an operational plan covering all the
					 products identified under clause (iv)('e') of this paragraph for each
					 compliance period that the ACP will be in effect. The operational plan shall
					 contain all of the following:
('a') an
					 identification of the compliance periods and dates for the responsible ACP
					 party to report the information required by the director, Division of Air
					 Resources, Department of Environmental Conservation in the ACP agreement
					 approving an ACP. The length of the compliance period shall be chosen by the
					 responsible ACP party provided, however, that no compliance period shall be
					 longer than 365 days. The responsible ACP party shall also choose the dates for
					 reporting information such that all required VOC content and enforceable sales
					 data for all ACP products shall be reported to the director, Division of Air
					 Resources, Department of Environmental Conservation at the same time and at the
					 same frequency; and
('b') an
					 identification of specific enforceable sales records to be provided to the
					 director, Division of Air Resources, Department of Environmental Conservation
					 for enforcing the provisions of this Part and the ACP agreement approving an
					 ACP. The enforceable sales records shall be provided to the director, Division
					 of Air Resources, Department of Environmental Conservation no later than the
					 compliance period dates specified in clause ('a') of this subparagraph;
					 and
('c') for a small business or a
					 one-product business which will be relying to some extent on surplus trading to
					 meet its ACP limits, a written commitment from the responsible ACP party(ies)
					 that they will transfer the surplus reductions to the small business or
					 one-product business upon approval of the ACP; and
('d') for each ACP product, all VOC content
					 levels which will be applicable for the ACP product during each compliance
					 period. The plan shall also identify the specific method(s) by which the VOC
					 content will be determined and the statistical accuracy and precision
					 (repeatability and reproducibility) calculated for each specified method;
					 and
('e') the projected enforceable
					 sales for each ACP product at each different VOC content for every compliance
					 period that the ACP will be in effect; and
('f') a detailed demonstration showing t he
					 combination of specific ACP reformulations or surplus trading (if applicable)
					 that is sufficient to ensure that the ACP emissions will not exceed the ACP
					 limit for each compliance period that the ACP will be in effect, the
					 approximate date within each compliance period that such reformulations or
					 surplus trading are expected to occur, and the extent to which the VOC contents
					 of the ACP products will be reduced ('i.e.', by ACP reformulation). This
					 demonstration shall use the equations specified in Subparts 235-2 and 235-3 of
					 this Part for projecting the ACP emissions and ACP limits during each
					 compliance period. This demonstration shall also include all VOC content levels
					 and projected enforceable sales for all ACP products to be sold in the State of
					 New York during each compliance period; and
('g') a certification that all reductions in
					 the VOC content of a product will be real, actual reductions that do not result
					 from changing product names, mischaracterizing ACP product reformulations that
					 have occurred in the past, or any other attempts to circumvent the provisions
					 of this Part; and
('h') written
					 explanations of the date-codes that will be displayed on each ACP product's
					 container or packaging; and
('i') a
					 statement of the approximate dates by which the responsible ACP party plans to
					 meet the applicable VOC content limit for each product in the ACP;
					 and
('j') an operational plan
					 (reconciliation of shortfalls plan) which commits the responsible ACP party to
					 completely reconcile any shortfalls in any and all cases, even, to the extent
					 permitted by law, if the responsible ACP party files for bankruptcy protection.
					 The plan for reconciliation of shortfalls shall contain all of the following:
('1') a clear and convincing demonstration of
					 how shortfalls of up to five percent, 10 percent, 15 percent, 25 percent, 50
					 percent, 75 percent and 100 percent of the applicable ACP limit will be
					 completely reconciled within 90 working days from the date the shortfall is
					 determined; and
('2') a listing of
					 the specific records and other information that will be necessary to verify
					 that the shortfalls were reconciled as specified in this clause; and
('3') a commitment to provide any record or
					 information requested by the director, Division of Air Resources, Department of
					 Environmental Conservation to verify that the shortfalls have been completely
					 reconciled;
(viii) a declaration, signed by a legal
					 representative for the responsible ACP party, which states that all information
					 and operational plans submitted with the ACP application are true and
					 correct.