Approval and Promulgation of Implementation Plans; New Jersey; Consumer and Commercial Products Rule

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,

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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

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Maximum allowable VOC content

Consumer product category (percent by weight)

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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

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\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

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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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