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CARB Seeks Federal Approval of Amended Consumer Products Regulations for Inclusion in CAA State Implementation Plan

Beveridge & Diamond, P.C., August 3, 2009

On June 26, 2009, the U.S. Environmental Protection Agency (EPA) proposed approval of amended California regulations that restrict the levels of volatile organic compounds (VOCs) present in consumer products.[1]  Comments on the proposed EPA action may be submitted until August 27, 2009.[2]

If approved by EPA, the amended regulations would be included in the California State Implementation Plan (SIP) and would be federally enforceable under the Clean Air Act.[3]  The revisions under consideration by EPA include 2008 amendments by the California Air Resources Board (CARB) to the general Consumer Products regulation (which became effective in California on July 18, 2009),[4] as well as previously submitted revisions to the Antiperspirant and Deodorant regulation, general Consumer Products regulation, and Aerosol Coating Products regulation that are not yet incorporated into the California SIP.  CARB’s amended regulations cover more product categories than the previous versions, generally set more stringent VOC limits than before, and are more demanding than EPA’s national Consumer Products rule (40 C.F.R, Part 59, Subpart C).  

Manufacturers, distributors, and retailers that sell covered products into the California market (a substantial portion of the national market) should take note of the changes.  At a time of when many states are enacting material restrictions for consumer products targeted at specific components (such as mercury or brominated flame retardants), these amendments also restrict the content of consumer products.

I.  California’s Antiperspirant and Deodorant Regulation (Article 1)

CARB’s Antiperspirant and Deodorant regulation restricts the percent of high volatility organic compounds (HVOC) and medium volatility organic compounds (MVOC) that may be present in these consumer products.  The amendments submitted by CARB to EPA formally repeal a zero percent limit for HVOC aerosol antiperspirants (due to technical infeasibility), update the definition of VOC, and extend the sell-through period for antiperspirants and deodorants from 18 months to three years (which allows manufacturers, retailers, and distributors a grace period to sell products manufactured before the effective date of the regulation).  However, the CARB regulation is also more demanding than the federal Consumer Products rule in that it contains stricter HVOC and MVOC limits, requires laboratory testing or calculation to show compliance, prohibits the use of toxic air contaminants, and applies to retailers as well as manufacturers.

II.  California Consumer Products Regulation (Article 2)

CARB’s general Consumer Products regulation sets limits on the percentage of VOCs that may be present in specific product categories and restricts or prohibits several additional compounds in consumer products.  The 2008 amendments include new or revised VOC limits for personal care products such as non-FDA regulated astringent/toner and personal fragrance products; non-aerosol sealants and caulking compounds (including chemical and non-chemical curing); motor vehicle and motor vehicle part cleaners (including non-aerosol); carpet and upholstery cleaners (including non-aerosol); gas dusters and dusting aids (including non-aerosol); floor maintenance products; penetrants and multi-purpose lubricants; degreasers; glass cleaners; and odor remover/eliminator products (including non-aerosol).[5]  There are also new VOC restrictions on single-use dryer fabric softeners.[6]  Most of the new VOC limits are effective December 31, 2010; however, a few will not take effect until December 31, 2012, 2013 or 2015.  Special VOC-related reporting for multi-purpose lubricant and penetrant products will also be required on or before March 31, 2012.[7]

In addition to VOC content restrictions, the 2008 amendments also prohibit, as of December 31, 2010, the sale, offer for sale, or manufacture for use in California of any carpet or upholstery cleaner, fabric protectant, multi-purpose lubricant, penetrant, sealant or caulking compound or spot remover containing (1) methylene chloride, (2) perchloroethylene, or (3) trichloroethylene.[8]  To the extent that products containing any of these three compounds were manufactured before December 31, 2010, they may be sold until December 31, 2013 if they comply with applicable product dating requirements.  Pressurized gas duster products containing methylene chloride, perchloroethylene, or any other chemical compound with a Global Warming Potential (GWP) value of 150 or greater are also prohibited effective December 31, 2010.[9]  A one year sell-through provision for pressurized gas duster products applies (expiring December 31, 2011).

Other amendments to the general Consumer Products regulation previously adopted by CARB but awaiting EPA approval for incorporation into the SIP include a prohibition on solid air fresheners or toilet/urinal products containing para-dichlorobenzene; required notifications of purchasers regarding products sold near the end of a sell-through period; and clarifications of defined terms.

In contrast to EPA’s national Consumer Products Rule, CARB’s Consumer Products regulation extends to retailers, prohibits the use of toxic air contaminants and ozone-depleting substances, covers more categories of consumer products, has more stringent two-tier VOC limits, limits the sell-through period to three years, and requires compliance by lab testing or calculation.

III.  Aerosol Coating Products (Article III)

The amendments CARB submitted to EPA on the Aerosol Coating Products regulation for inclusion in the SIP include clarifications of previously overlapping requirements between the Aerosol Coating Products and the general Consumer Products regulations.  The amendments clarify that cosmetics and other products used on the human body, “rubber/vinyl protectants” and “fabric protectants” would be regulated exclusively under the Consumer Products regulation (and exempted from the Aerosol Coatings regulation).

IV.  CARB Method 310

CARB has also submitted updates to the EPA, American Society for Testing and Materials (ASTM) and National Institute for Occupational Safety and Health (NIOSH) testing and emission calculation methods referenced in CARB Method 310.

V.  Evaluation Criteria and Public Comments

Pursuant to Clean Air Act (CAA), EPA will evaluate the submitted regulations to determine if they: (1) are enforceable (CAA section 110(a)); (2) require Reasonably Available Control Technology (RACT) for qualifying sources (CAA sections 182(a)(2) and (b)(2)); and, (3) do not relax existing requirements (CAA sections 110(l) and 193).

The public comment period for this EPA action was originally set to close on July 27, 2009, but has been extended to August 27, 2009.  Unless EPA receives convincing new information during the comment period, the agency intends to publish a final approval action that will incorporate the California regulations into the federally enforceable SIP.

Contacts

For additional information or guidance regarding the California Consumer Products regulations, please contact Laura Duncan (lduncan@bdlaw.com), Mark Duvall (mduvall@bdlaw.com) or Amy Lincoln (alincoln@bdlaw.com).


[1] See 74 Fed. Reg. 30,481 - 30,485 (June 26, 2009).

[2] See 74 Fed. Reg. 36,980 (July 27, 2009).

[3] California regulates VOC emissions from consumer products pursuant to its obligations under federal Clean Air Act section 110(a).  EPA approved previous versions of CARB’s Antiperspirant and Deodorant, Consumer Products and Aerosol Coating Products regulations for inclusion into California’s SIP in 2005.  See 60 Fed. Reg. 43,379 (Aug. 21, 1995) and 70 Fed. Reg. 53,930 (Sept. 13, 2005).

[4] See http://www.arb.ca.gov/regact/2008/cp2008/frooalfin.pdf for text of the 2008 amendments.

[5] See http://www.arb.ca.gov/regact/2008/cp2008/frooalfin.pdf, 17 C.C.R. § 94509(a).

[6] See id. § 94509(s).

[7] See id. § 94513(f).

[8] See id. § 94509(q).

[9] See id. § 94509(r).