[Federal Register Volume 62, Number 13 (Tuesday, January 21, 1997)]
[Proposed Rules]
[Pages 2984-2987]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-1370]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[Region II Docket No. NJ26-1-161, FRL-5678-3]
Approval and Promulgation of Implementation Plans; New Jersey;
Consumer and Commercial Products Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is announcing the
proposed approval of a revision to the New Jersey State Implementation
Plan (SIP) for the attainment and maintenance of the national ambient
air quality standards for Ozone. The SIP revision was submitted by the
New Jersey Department of Environmental Protection and consists of the
adopted new rule Subchapter 24, ``Control and Prohibition of Volatile
Organic Compounds (VOCs) from Consumer and Commercial Products,'' which
establishes limits on the amount of VOCs contained in certain consumer
and commercial products. The intended effect is to reduce the emission
of VOCs which will assist in attaining the health based ozone air
quality standard.
DATES: Comments must be received on or before February 20, 1997.
ADDRESSES: All comments should be addressed to: Ronald J. Borsellino,
[[Page 2985]]
Chief, Air Programs Branch, Environmental Protection Agency, Region 2
Office, 290 Broadway, New York, New York 10007-1866.
Copies of the state submittal(s) are available at the following
addresses for inspection during normal business hours: Environmental
Protection Agency, Region 2 Office, Air Programs Branch, 290 Broadway,
25th Floor, New York, New York 10007-1866.
New Jersey Department of Environmental Protection, Office of Air
Quality Management, Bureau of Air Quality Planning, 401 East State
Street, CN418, Trenton, New Jersey 08625.
FOR FURTHER INFORMATION CONTACT: Kirk J. Wieber, Environmental
Engineer, Air Programs Branch, Environmental Protection Agency, 290
Broadway, 25th Floor, New York, New York 10007-1866, (212) 637-4249.
SUPPLEMENTARY INFORMATION:
Background
On January 25, 1996, the New Jersey Department of Environmental
Protection (NJDEP) submitted to EPA a revision to the New Jersey State
Implementation Plan (SIP) for the attainment and maintenance of the
national ambient air quality standards (NAAQS) for Ozone. The revisions
to the New Jersey Ozone SIP reflect the adoption to New Jersey
Administrative Code (N.J.A.C) of 7:27-24 entitled ``Control and
Prohibition of Volatile Organic Compounds from Consumer and Commercial
Products,'' (Subchapter 24). This new rule was adopted by New Jersey on
October 3, 1995, and became effective upon publication in the New
Jersey Register on November 6, 1995. This portion of New Jersey's Ozone
SIP submittal was found to be complete on March 15, 1996, pursuant to
EPA's completeness criteria that are set forth in 40 CFR Part 51
Appendix V.
State Submittal
New Jersey's January 25, 1996 SIP revision submittal consists of
new rule Subchapter 24, which establishes limits on the amount of
volatile organic compounds (VOC) or high volatility organic compounds
(HVOC) contained in certain consumer and commercial products. Certain
products manufactured after April 30, 1996, and sold for use in New
Jersey are subject to these VOC content limits. The types of consumer
and commercial products regulated by this new rule and the
corresponding VOC content limits are listed in the table below.
VOC Content Limits for Consumer Products
------------------------------------------------------------------------
Maximum allowable VOC content
Consumer product category (percent by weight)
------------------------------------------------------------------------
Air Fresheners:
Single phase aerosol................. 70
Double-phase aerosol................. 30
Liquid/pump.......................... 18
Solid/gel............................ 3
Antiperspirants:
Aerosol.............................. HVOC 60
Non-aerosol.......................... HVOC 0
Bathroom and tile cleaners:
Aerosols............................. 7
All other forms...................... 5
Carburetor choke cleaners.............. 75
Cooking sprays, aerosol................ 18
Deodorants:
Aerosol.............................. HVOC 20
Non-aerosol.......................... HVOC 0
Dusting aids:
Aerosol.............................. 35
All other forms...................... 7
Engine degreasers...................... 75
Fabric protectants..................... 75
Floor polishes/waxes:
Products for flexible flooring 7
material.
Products for nonresilient flooring... 10
Wood floor wax....................... 90
Furniture maintenance products, aerosol 25
General purposes cleaners.............. 10
Glass cleaners:
Aerosols............................. 12
All other forms...................... 8
Hair mousses........................... 16
Hair sprays............................ 80
Hair styling gels...................... 6
Household adhesives:
Aerosol.............................. 75
Contact.............................. 80
Construction and panel............... 40
General purpose...................... 10
Structural waterproof................ (\1\)
Insecticides:
Crawling bug......................... 40
Flea and tick........................ 25
Flying bug........................... 35
Foggers.............................. 45
Lawn and garden...................... 20
Laundry prewash:
Aerosol/solids....................... 22
All other forms...................... 5
Laundry starch products................ 5
Nail polish removers................... 85
Oven Cleaners:
Aerosol/pump sprays.................. 8
Liquids.............................. 5
Shaving creams......................... 5
------------------------------------------------------------------------
\1\ Reserved.
In March 1995, EPA published a Report to Congress entitled ``Study
of Volatile Organic Compound Emissions from Consumer and Commercial
Products,'' (EPA-453/R-94-066-A). Based on the information provided in
this report, the NJDEP expects to achieve VOC emission reductions of
7.9 tons per day from the 1990 baseline emissions. This level of
emission reductions when achieved, constitutes a 18 percent reduction
from the 1990 baseline emissions for the categories regulated in
Subchapter 24. These emission reductions reflect a per capita VOC
emission reduction of 0.75 pounds of VOC per person per year.
Applicability
Subchapter 24 applies to any person who sells, offers for sale,
holds for sale, distributes, supplies, or manufactures any consumer
product listed in the table above for use in New Jersey. Consumer
products that are sold in New Jersey for shipment and use outside of
the State of New Jersey are exempt from the VOC content limits, and
administrative and testing requirements of Subchapter 24. This
exemption reflects the intent to regulate only the manufacture and
distribution of consumer products that are actually used in New Jersey
and not to interfere in the transportation of goods that are destined
for outside of the State.
The VOC content limits included in Subchapter 24, do not apply to
consumer products manufactured prior to April 30, 1996 provided such
consumer products have a date of manufacture code on the container or
packaging. This provision allows the manufacturers and distributors
sufficient notice and a reasonable amount of time, from the state
effective date of the rule, to comply with VOC content limits contained
in Subchapter 24.
Subchapter 24 excludes certain products from the applicable VOC
content limits. The rationale for these exclusions is that the products
do not emit VOCs, or there are no existing acceptable alternatives, or
because the active ingredient is present in concentrated form resulting
in less VOC emissions. Such products that are exempt are: bait station
insecticides that contain bait weighing more than 0.5 ounces; household
adhesives sold in a container of one fluid ounce or less or a container
of more than one United States gallon (128 fluid ounces); air
fresheners or insecticides which contain at least 98 percent by weight
para-dichlorobenzene; air fresheners consisting entirely of fragrance,
inorganic compounds, or compounds excluded from the definition of VOC
in Subchapter 24. Generally, these exclusions are consistent with
similar regulations in other states and have been approved by EPA.
[[Page 2986]]
Certain substances for the purposes of determining the VOC content
on consumer products are excluded from the requirements of Subchapter
24, specifically, VOCs with known low vapor pressures of less than 0.1
millimeters of mercury at 20 degrees Celsius, VOCs with unknown vapor
pressures consisting of more than 12 carbon atoms per molecule, and
VOCs with unknown vapor pressures that have melting points higher than
20 degrees Celsius and do not sublime. Examples of such compounds
include high molecular weight resins used in hair sprays and the heavy
oils used in furniture polishes. Subsection 24 also excludes fragrances
up to a combined two percent by weight contained in any consumer
product.
Subchapter 24 also provides for granting exemptions for products
that reduce VOC emissions using non-traditional methods, referred to as
``innovative products.'' The concept behind an innovative product
provision is to provide an alternative to complying with the specified
content standard found in the rule. A product may be exempted from VOC
content standards if the manufacturer demonstrates that due to some
characteristics of the formulation, design, delivery system or other
factor, VOC emissions resulting from the use of the innovative product
would be less than the emissions resulting from the use of a
representative product that meets the VOC content standard.
If a manufacturer was granted an innovative product exemption
pursuant to the California Air Resource Board (CARB) consumer products
regulations (Title 17, Subchapter 8.5, article 1, section 94503.5 or
article 2, section 94511 of the California Code of Regulations), the
manufacturer may also claim this exclusion by submitting a copy of the
CARB exemption decision and CARB's statement of the conditions on its
approval of the exemption to the NJDEP.
As stated in their response to comments, New Jersey commits to
forwarding all innovative product exemptions that New Jersey accepts to
EPA, Region 2, in order for EPA to be able to determine compliance with
the New Jersey SIP, once it is approved. SIP revisions would not be
necessary for such innovative products excluded from complying with the
VOC content limits of Subchapter 24, because the VOC emissions from
such products have been demonstrated to be less than those from a
complying product and because an appropriate level of opportunity for
public comment regarding the mechanisms and criteria for such
exclusions has been made during New Jersey's proposal of new rule
Subchapter 24.
In addition, CARB's rules, measures and procedures for their
consumer products regulation have been approved by EPA as part of the
California SIP. CARB's consumer products rule includes a ``federal
enforceability'' provision which requires that those innovative product
exemptions approved by CARB be submitted to EPA Region 9 as SIP
revisions after adhering to a specific procedure or mechanism. Since
New Jersey is recognizing only those innovative product exemptions
approved by CARB, and which are required to be federally enforceable
through CARB's rule, it would be redundant to have New Jersey submit
those exemptions to EPA Region 2 for EPA approval.
In addition, Subchapter 24 provides relief due to extraordinary
reasons that are beyond the reasonable control of the manufacturers of
regulated consumer products. The maximum allowable VOC content limits
do not apply to any consumer product if an agency of another state,
which has an adopted consumer product variance provision in its rules
as of December 2, 1995, has granted to the manufacturer of that product
a variance. This exclusion shall be effective in New Jersey until the
other state agency's approved variance expires or is revoked, at which
time the exclusion from the requirements of Subchapter 24 shall
automatically expire. This exclusion shall be effective in New Jersey
provided that the manufacturer claiming this exclusion submits a copy
of the state agency's exemption decision and statement of the
conditions of the state agency's approval of the exemption to the
NJDEP.
As stated in their response to comments, New Jersey commits to
forwarding all variances pursuant to Subchapter 24 to EPA, Region 2, in
order for EPA to be able to determine compliance with the New Jersey
SIP, once it is approved. Since there is already a specific procedure
or mechanism established for making the variances federally
enforceable, it is not necessary to go through the process again.
Administrative Requirements
Subchapter 24 requires manufacturers of consumer products subject
to Subchapter 24, to submit a registration report to the NJDEP by
October 1, 1996 which identifies the categories of products they
manufacture and the specific products affected by the rule.
Each manufacturer of a consumer product subject to Subchapter 24 is
required to clearly display on each consumer product container or
packaging the month and year in which the product was manufactured (or
a code indicating such date). This will allow the verification of
whether the product was required to meet the VOC content limits
specified in Subchapter 24.
Subchapter 24 also requires manufacturers of consumer products to
keep records demonstrating compliance with the VOC content limits.
These records are required to be kept for a period of at least three
years and shall be made available within 30 days upon request. In
addition, manufacturers of consumer products are required to submit
within 90 days upon request, estimations of the product quantities sold
in New Jersey. This provision enables the NJDEP to conduct an emission
estimation survey at a future date. Any person who submits information
to the NJDEP pursuant to Subchapter 24 may assert a confidentiality
claim in accordance with the procedures specified in N.J.A.C. 7:27-1.6.
Test Methods
Compliance is determined using mass balance based on manufacturers'
formation data and records of raw material purchase. Further analysis
could make use of methods which are shown to accurately determine the
concentration of VOCs in a product. Such methods shall include any
methods issued by EPA or CARB which have been established for the
measurement of VOCs in consumer products. Subchapter 24 does not cite
any specific analytical method for determining the VOC content of
consumer products as such methods are currently being developed by CARB
and EPA. Until specific analytical methods become available, compliance
with Subchapter 24 will rely heavily upon manufacturer's records of the
constituents used to produce the consumer products.
Federal Supersession
Subchapter 24 includes a provision which addresses any potential
conflicts between New Jersey's Subchapter 24 and any national consumer
products rule EPA may issue. Generally, Subchapter 24 provides that
where a Federal rule establishes a VOC content limit or product
applicability criteria that differs from New Jersey's requirement, the
Federal rule shall supersede New Jersey's regulation. However, where
the Federal rule does not regulate the VOC content of a product
category for which Subchapter
[[Page 2987]]
24 has established a limit, New Jersey's regulation shall remain in
effect. On April 2, 1996, EPA proposed national VOC emission standards
for consumer products, 61 FR 14531, which includes similar consumer
products and VOC content limits as those approved by New Jersey. It is
anticipated that the national rule will be promulgated in 1997.
Conclusion
EPA has evaluated the revisions to the New Jersey Ozone SIP which
consists of the adoption of a new rule Subchapter 24, ``Control and
Prohibition of Volatile Organic Compounds from Consumer and Commercial
Products,'' and has determined that all of the provisions contained in
Subchapter 24 are consistent with EPA policy and guidance and are
approvable. Therefore, EPA is proposing approval of Subchapter 24.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to the SIP shall be
considered separately in light of specific technical, economic, and
environmental factors and in relation to relevant statutory and
regulatory requirements.
Administrative Requirements
Executive Order 12866
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from E.O. 12866 review.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and subchapter I, part D of the
Clean Air Act do not create any new requirements but simply approve
requirements that the State is already imposing. Therefore, because the
federal SIP approval does not impose any new requirements, I certify
that it does not have a significant impact on any small entities
affected. Moreover, due to the nature of the Federal-State relationship
under the Clean Air Act, preparation of a flexibility analysis would
constitute federal inquiry into the economic reasonableness of state
action. The Clean Air Act forbids EPA to base its actions concerning
SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246,
255-66 (1976); 42 U.S.C. 7410(a)(2).
Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a federal mandate that may result in estimated
annual costs to State, local, or tribal governments in the aggregate;
or to private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action proposed does not
include a federal mandate that may result in estimated annual costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. This federal action approves
pre-existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
The Administrator's decision to approve or disapprove the SIP
revision will be based on whether it meets the requirements of section
110(a)(2)(A)-(K) and part D of the Clean Air Act, as amended, and EPA
regulations in 40 CFR Part 51.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401-7671q.
Dated: December 30, 1996.
William J. Muszynski,
Acting Regional Administrator.
[FR Doc. 97-1370 Filed 1-17-97; 8:45 am]
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