[Federal Register Volume 74, Number 122 (Friday, June 26, 2009)]
[Proposed Rules]
[Pages 30481-30485]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-15144]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2009-0353; FRL-8923-4]


Revisions to the California State Implementation Plan, California 
Air Resources Board Consumer Products Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve revisions to the California Air 
Resources Board's Consumer Products portion of the California State 
Implementation Plan (SIP). These revisions concern volatile organic 
compound (VOC) emissions from consumer products. We are approving State 
rules that regulate these emission sources under the Clean Air Act as 
amended in 1990 (CAA or the Act). We are taking comments on this 
proposal and plan to follow with a final action.

DATES: Any comments must arrive by July 27, 2009.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2009-0353, by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions.
    2. E-mail: [email protected].
    3. Mail or deliver: Andrew Steckel (Air-4), U.S. Environmental 
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 
94105-3901.
    Instructions: All comments will be included in the public docket 
without change and may be made available online at http://www.regulations.gov, including any personal information provided, 
unless the comment includes Confidential Business Information (CBI) or 
other information whose disclosure is restricted by statute. 
Information that you consider CBI or otherwise protected

[[Page 30482]]

should be clearly identified as such and should not be submitted 
through http://www.regulations.gov or e-mail. http://www.regulations.gov is an ``anonymous access'' system, and EPA will not 
know your identity or contact information unless you provide it in the 
body of your comment. If you send e-mail directly to EPA, your e-mail 
address will be automatically captured and included as part of the 
public comment. If EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, EPA may not be 
able to consider your comment.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov and in hard copy at EPA Region 
IX, 75 Hawthorne Street, San Francisco, California. While all documents 
in the docket are listed in the index, some information may be publicly 
available only at the hard copy location (e.g., copyrighted material), 
and some may not be publicly available in either location (e.g., CBI). 
To inspect the hard copy materials, please schedule an appointment 
during normal business hours with the contact listed in the FOR FURTHER 
INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Stanley Tong, EPA Region IX, (415) 
947-4122, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

Table of Contents

I. The State's Submittal
    A. What regulations did the State submit?
    B. Are there other versions of these regulations?
    C. What is the purpose of the submitted regulation revisions?
II. EPA's Evaluation and Action
    A. How is EPA evaluating these regulations?
    B. Do the regulations meet the evaluation criteria?
    C. EPA recommendations to further improve the regulations.
    D. Public comment and final action.
III. Statutory and Executive Order Reviews

I. The State's Submittal

A. What regulations did the State submit?

    Table 1 lists the regulations addressed by this proposal with the 
dates that they were adopted by the State and submitted by the 
California Air Resources Board (CARB).

                                         Table 1--Submitted Regulations
----------------------------------------------------------------------------------------------------------------
                                                                                     Adopted/
                 Regulation                            Regulation Title               amended        Submitted
----------------------------------------------------------------------------------------------------------------
California Code of Regulations Title 17,     Article 1--Antiperspirants and           05/06/2005      03/27/2008
 Division 3, Chapter 1, Subchapter 8.5--      Deodorants.
 Consumer Products.
California Code of Regulations Title 17,     Article 2--Consumer Products.......      09/26/2007      03/27/2008
 Division 3, Chapter 1, Subchapter 8.5--
 Consumer Products.
California Code of Regulations Title 17,     Article 3--Aerosol Coating Products      09/26/2007      03/27/2008
 Division 3, Chapter 1, Subchapter 8.5--
 Consumer Products.
California Air Resources Board--Test Method  Method 310--Determination of             05/06/2005      03/27/2008
 310.                                         Volatile Organic Compounds (VOC)
                                              in Consumer Products and Reactive
                                              Organic Compounds in Aerosol
                                              Coating Products.
----------------------------------------------------------------------------------------------------------------

    These submittals became complete by operation of law on September 
27, 2008.

B. Are there other versions of these regulations?

    We approved a version of CARB's Antiperspirant and Deodorant 
Regulation into the SIP on August 21, 1995 (60 FR 43379). CARB adopted 
and submitted revisions to the SIP-approved version on the following 
dates. While we are acting on only the most recently submitted version, 
we have reviewed materials provided with previous submittals.

----------------------------------------------------------------------------------------------------------------
  Antiperspirant and deodorant
          hearing date                  Amended                             Submitted to EPA
----------------------------------------------------------------------------------------------------------------
September 28, 1995..............  January 26, 1996...  August 27, 1996.
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November 21, 1996...............  September 25, 1997.  December 18, 1998.
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November 21, 1996...............  October 3, 1997....
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November 19, 1998...............  November 19, 1999..  Not submitted--methyl acetate
                                                       exempted.
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October 26, 2000................  October 26, 2000...  April 3, 2002.
----------------------------------------------------------------------------------------------------------------

    We approved a version of CARB's Consumer Products Regulation into 
the SIP on August 21, 1995 (60 FR 43379). CARB adopted and submitted 
revisions to the SIP-approved version on the following dates. While we 
are acting on only the most recently submitted version, we have 
reviewed materials provided with previous submittals.

----------------------------------------------------------------------------------------------------------------
 Consumer products hearing date         Amended                             Submitted to EPA
----------------------------------------------------------------------------------------------------------------
September 28, 1995..............  January 16, 1996...  August 27, 1996.
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November 21, 1996...............  September 25, 1997.  December 18, 1998.
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November 21, 1996...............  October 3, 1997....
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[[Page 30483]]

 
March 27, 1997..................  March 27, 1997.....
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July 24, 1997...................  May 20, 1998.......
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November 19, 1998...............  November 19, 1999..  Not submitted--methyl acetate exempted.
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October 28, 1999................  August 14, 2000....  April 3, 2002.
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May 25, 2000....................  February 12, 2001..
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June 24, 2004...................  May 6, 2005........  March 27, 2008.
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    We approved the following version of CARB's Aerosol Coating 
Products Regulation into the SIP on September 13, 2005 (70 FR 53930).

------------------------------------------------------------------------
    Aerosol coating products
          hearing date                 Amended        Submitted to  EPA
------------------------------------------------------------------------
May 1, 2001....................  June 22, 2000.....  March 13, 2002.
------------------------------------------------------------------------

    EPA has not approved any prior version of CARB Test Method 310 into 
the SIP.

C. What is the purpose of the submitted regulation revisions?

    VOCs help produce ground-level ozone and smog, which harm human 
health and the environment. Section 110(a) of the CAA requires States 
to submit regulations that control VOC emissions.
    The California Health and Safety Code (Section 41712(b)) requires 
CARB to ``adopt regulations to achieve the maximum feasible reduction 
in volatile organic compounds emitted by consumer products, if the 
state board determines that adequate data exists to establish both of 
the following:
    (1) The regulations are necessary to attain state and federal 
ambient air quality standards.
    (2) The regulations are commercially and technologically feasible 
and necessary.''
    CARB's consumer products regulations are found under the California 
Code of Regulations Title 17 Chapter 1 Subchapter 8.5 and include:

Article 1--Antiperspirants and Deodorants
Article 2--Consumer Products
Article 3--Aerosol Coating Products
Article 4--Alternative Control Plan
Article 5--Hairspray Credit Program

    The following are brief descriptions of CARB's consumer product 
regulations and the amendments adopted by CARB, which we propose to 
approve into the SIP.
1. Antiperspirants and Deodorants
    CARB's Antiperspirants and Deodorants (APDO) regulation limits the 
percent of high volatility organic compounds (HVOC) and medium 
volatility organic compounds (MVOC) in products. The original SIP-
approved regulation contained two tiers of HVOC/MVOC limits, which took 
effect in 1992 and 1995. Amendments adopted by CARB include updating 
the definition of VOC to be more consistent with EPA's definition in 40 
CFR 50.100(s), extending the 18-month sell-through period to 3 years to 
incorporate changes in State law, repealing a zero percent limit for 
HVOC for aerosol antiperspirants, and clarifying the definition of 
``deodorant'' to distinguish products covered under the APDO regulation 
from products covered under CARB's general consumer products 
regulation.
    CARB's SIP-approved regulation originally contained an aggressive 
limit of zero percent HVOC for aerosol antiperspirants. CARB later 
determined that this limit was not technically feasible, even with a 
compliance extension, and repealed it in an October 26, 2000 hearing. 
CARB's April 3, 2002 submittal letter to EPA estimated that this would 
result in a shortfall in VOC emissions reductions of approximately 1.3 
tons per day (tpd) statewide in 2010. CARB indicated, however, that 
their Mid-term Measure II Consumer Products regulation would achieve 
approximately 21 tpd of VOC emissions reductions, which more than 
offset the shortfall. EPA is proposing to act on the APDO and Consumer 
Products submittals together.
    CARB's APDO regulation is more stringent than EPA's national 
Consumer Products rule (40 CFR part 59, subpart C) in the following 
ways:
    (a) Contains more stringent two tier HVOC/MVOC limits.
    (b) Limits sell-through period to 3 years (EPA does not have a 
limit for the sell-through period).
    (c) Requires compliance by laboratory testing or calculation.
    (d) Prohibits use of toxic air contaminants.
    (e) Covers retailers.
2. Consumer Products
    CARB's Consumer Products regulation limits the VOC content in 
products such as air fresheners, automotive products, bathroom 
cleaners, hair care products, and insecticides. CARB's 2006 Initial 
Statement of Reasons (ISOR) indicates consumer products are a 
significant source of VOC emissions in California and accounted for 
approximately 260 tpd of VOC emissions in 2005. CARB's ISOR further 
indicates that as a result of their consumer products regulations over 
the last 15 years, statewide VOC emissions from consumer products were 
reduced by over 170 tpd (40 percent reduction) in 2010. Appendix A of 
the ISOR further points out that ``emissions from Consumer Products, in 
2020, will be the largest source of VOC emissions in the South Coast 
Air Basin, and the third largest source in the San Joaquin Valley Air 
Basin.''
    Revisions to the SIP-approved regulation adopted by CARB include 
repealing the aerosol adhesives VOC limit, postponing the second-tier 
VOC limit for hairsprays and approximately doubling the number of 
consumer product categories for regulation.
    CARB originally adopted the VOC limit for aerosol adhesives in 1989 
with two tiers. The first tier established a VOC limit of 75 percent, 
effective January 1, 1995, and the second tier established a VOC limit 
of 25 percent effective January 1, 1997. CARB indicates that the 
aerosol adhesives category is small, approximately 0.4 tpd and that 
most manufacturers were ``having significant difficulty meeting the 25 
percent VOC standard.'' Technical problems encountered included freeze 
thaw stability and solvents drying too slowly, too fast, or dissolving 
into the substrate. In May 2000, CARB repealed the 25 percent

[[Page 30484]]

VOC limit and adopted three new aerosol adhesive categories. EPA's VOC 
content limit for household aerosol adhesives remains at 75 percent. 40 
CFR part 59, subpart C, Table 1.
    CARB also indicated it had to postpone the second-tier VOC 
hairspray limit of 55 percent for 17 months from January 1998 until 
June 1999. Although CARB concluded that the 55 percent limit was 
technically feasible, additional time was required by manufacturers to 
complete product development and testing. CARB explained in its staff 
report that the delayed implementation would not compromise its SIP 
commitment because air pollution control districts had not claimed the 
reductions until the beginning of the 1999 summer ozone season.
    Other amendments adopted by CARB include clarifying definitions, 
requiring notifications for products sold towards the end of a sell-
through period, prohibiting solid air fresheners or toilet/urinal care 
products from containing para-dichlorobenzene (a toxic air contaminant/
hazardous air pollutant) and clarifying that for products manufactured 
after January 1, 2007, the ``most restrictive limit'' applies to any 
representation made anywhere on the label, packaging, and all affixed 
labels. CARB states that it established the sell-through period and 
most restrictive limits because of a finding that older non-compliant 
products remained on shelves long after the three year sell-through 
period and CARB enforcement investigations finding representations made 
on the principal display panel that were inconsistent with 
representations on the rest of the label or packaging. CARB noted that 
``labels have appeared to have been changed to avoid reformulation to 
meet VOC limits.'' CARB ISOR May 7, 2004, page V-52. CARB's amendments 
also clarify that codes indicating date of manufacture are public 
information and cannot be claimed as confidential.
    CARB's 1992 SIP-approved regulation covered approximately 50 
categories/subcategories of consumer products. Since that time, CARB 
has added additional consumer product categories for regulation and has 
further reduced the VOC limits in existing categories. The amended rule 
covers 112 categories/subcategories of consumer products.
    CARB's Consumer Products regulation is more stringent than EPA's 
national Consumer Products rule (40 CFR part 59, subpart C) in the 
following ways:
    (a) Contains more stringent two-tier VOC limits.
    (b) Covers more categories of consumer products.
    (c) Limits the sell-through period to 3 years.
    (d) Requires compliance by laboratory testing or calculation.
    (e) Prohibits use of toxic air contaminants and ozone depleting 
substances.
    (f) Covers retailers.
3. Aerosol Coating Products
    EPA approved CARB's Aerosol Coating Products regulation (adopted 
May 1, 2001) into the SIP on September 13, 2005. CARB adopted minor 
updates to test methods in the regulation at a public hearing in 2004 
and clarifications to overlapping requirements between the Aerosol 
Coating Products and Consumer Products regulations at a hearing on 
November 17, 2006. These amendments covered Rubber and Vinyl 
Protectants, Fabric Protectants, Vinyl/Fabric/Leather/Polycarbonate 
Coatings, cosmetic products, and other products used on the human body. 
The purpose of the 2006 amendments was to clarify that each of these 
products would be regulated under only one of these two regulations. 
The amendment also clarified that cosmetics and other products used on 
the human body are regulated only under the Consumer Products 
regulation and exempted from CARB's Aerosol Coatings regulation.
4. Method 310
    CARB Method 310 incorporates by reference a number of other test 
methods including those from US EPA, the American Society for Testing 
and Materials (ASTM), and the National Institute for Occupational 
Safety and Health (NIOSH). Method 310 also: contains procedures to 
separate the propellant from the non-propellant portions of aerosol 
products; allows analysis of the propellant and non-propellant portions 
for total VOC, exempt VOC or prohibited compounds such as toxic air 
contaminants; determines the low vapor pressure VOC status of compounds 
and mixtures; and identifies the reactive organic compounds in aerosol 
coating products.
    The 2005 amendments to Method 310 include updating references to 
many of the ASTM and EPA test methods and adding an equation to 
calculate the VOC content of low vapor pressure compounds and/or 
mixtures.
    EPA's technical support document (TSD) has more information on 
CARB's consumer products regulations.

II. EPA's Evaluation and Action

A. How is EPA evaluating the regulations?

    Generally, SIP rules must be enforceable (see section 110(a) of the 
Act), must require Reasonably Available Control Technology (RACT) for 
each category of sources covered by a Control Techniques Guidelines 
(CTG) document as well as each major source in nonattainment areas (see 
section 182(a)(2) and (b)(2)), and must not relax existing requirements 
(see sections 110(l) and 193). California's consumer products 
regulations cover VOC area sources and not stationary sources. While 
there are no applicable CTGs for these source categories, in 1998 EPA 
promulgated national rules to regulate VOC emissions from consumer 
products (63 FR 48831, September 11, 1998) and aerosol coating products 
(73 FR 15621, March 24, 2008). EPA's national rules largely parallel 
CARB's earlier SIP-approved rules. The amendments we are proposing to 
approve today are more stringent than EPA's standards.
    Rules, guidance and policy documents that we use to evaluate 
enforceability and RACT requirements consistently include the 
following:
    1. Portions of the proposed post-1987 ozone and carbon monoxide 
policy that concern RACT, 52 FR 45044, November 24, 1987.
    2. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and 
Deviations,'' EPA, May 25, 1988 (the Bluebook).
    3. State Implementation Plans, General Preamble for the 
Implementation of Title I of the Clean Air Act Amendments of 1990 (57 
FR 13498; April 16, 1992).
    4. ``Guidance Document for Correcting Common VOC & Other Rule 
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).
    5. 40 CFR Part 59 Subpart C, National Volatile Organic Compound 
Emission Standards for Consumer Products; Subpart E, National VOC 
Emission Standards for Aerosol Coatings.

B. Do the regulations meet the evaluation criteria?

    We believe CARB's Consumer Products regulations are consistent with 
the relevant rules and policy and guidance documents regarding 
enforceability, RACT, and SIP relaxations. CARB's Antiperspirants and 
Deodorants, Consumer Products, and Aerosol Coating Products regulations 
contain more stringent limits and cover more than twice the number of 
categories covered by EPA's national Consumer Products rule. CARB 
found,

[[Page 30485]]

however, that some technology-forcing limits, such as the aerosol 
adhesives limit originally adopted in 1989, were not achievable. In 
those cases, CARB identified limits that were achievable and offset any 
shortfall in emission reductions through greater reductions in other 
consumer product categories. The TSDs have more information on our 
evaluation.

C. EPA Recommendations to Further Improve the Regulations

    The TSD for CARB Method 310 suggests an amendment to clarify an 
equation's legend. EPA recommends that CARB adopt this clarifying 
amendment the next time it modifies Method 310.

D. Public Comment and Final Action

    Because EPA believes the submitted regulations fulfill all relevant 
requirements, we are proposing to fully approve them consistent with 
section 110(k)(3) of the Act. We are also proposing to approve CARB 
Method 310 to support compliance with CARB's APDO, Consumer Products, 
and Aerosol Coating Products regulations. We will accept comments from 
the public on this proposal for the next 30 days. Unless we receive 
convincing new information during the comment period, we intend to 
publish a final approval action that will incorporate these regulations 
into the federally enforceable SIP.

III. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Ozone, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Authority:  42 U.S.C. 7401 et seq.

    Dated: June 17, 2009.
Jane Diamond,
Acting Regional Administrator, Region IX.
[FR Doc. E9-15144 Filed 6-25-09; 8:45 am]
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