[32 Pa.B. 4824]
[Continued from previous Web Page]
STANDARDS § 130.211. Table of standards.
Except as provided in §§ 130.331--130.337, 130.351, 130.352, 130.411--130.414 and 130.451--130.464, a person may not sell, supply, offer for sale or manufacture for sale in this Commonwealth a consumer product manufactured on or after January 1, 2005, which contains VOCs in excess of the limits specified in the following table of standards:
Table of Standards
(percent VOC by weight)
Effective Date Product Category 1/1/2005 Adhesives Aerosol: Mist Spray 65 Web Spray 55 Special Purpose Spray Adhesives: Mounting, Automotive Engine Compartment, and Flexible Vinyl 70 Polystyrene Foam and Automotive Headliner 65 Polyolefin and Laminate Repair/Edgebanding 60 Contact 80 Construction, Panel and Floor Covering 15 General Purpose 10 Structural Waterproof 15 Air Fresheners Single-Phase Aerosols 30 Double-Phase Aerosols 25 Liquids/Pump Sprays 18 Solids/Gels 3 Antiperspirants Aerosol 40 HVOC 10 MVOC Nonaerosol 0 HVOC 0 MVOC Automotive Brake Cleaners 45 Automotive Rubbing or Polishing Compound 17 Automotive Wax, Polish, Sealant or Glaze Hard Paste Waxes 45 Instant Detailers 3 All Other Forms 15 Automotive Windshield Washer Fluids 35 Bathroom and Tile Cleaners Aerosols 7 All Other Forms 5 Bug and Tar Remover 40 Carburetor or Fuel-Injection Air Intake Cleaners 45 Carpet and Upholstery Cleaners Aerosols 7 Nonaerosols (Dilutables) 0.1 Nonaerosols (Ready-to-Use) 3.0 Charcoal Lighter Material See § 130.214 Cooking Spray Aerosols 18 Deodorants Aerosol 0 HVOC 10 MVOC Nonaerosol 0 HVOC 0 MVOC Dusting Aids Aerosols 25 All Other Forms 7 Engine Degreasers Aerosol 35 Nonaerosol 4 Fabric Protectants 60 Floor Polishes/Waxes Products for Flexible Flooring Materials 7 Products for Nonresilient Flooring 10 Wood Floor Wax 90 Floor Wax Strippers Nonaerosol See § 130.216 Furniture Maintenance Products Aerosols 17 All Other Forms Except Solid or Paste 7 General Purpose Cleaners Aerosols 10 Nonaerosols 4 General Purpose Degreasers Aerosols 50 Nonaerosols 4 Glass Cleaners Aerosols 12 Nonaerosols 4 Hair Mousses 6 Hairshines 55 Hairsprays 55 Hair Styling Gels 6 Heavy-Duty Hand Cleaner or Soap 8 Insecticides Crawling Bug (Aerosol) 15 Crawling Bug (all other forms) 20 Flea and Tick 25 Flying Bug (Aerosol) 25 Flying Bug (all other forms) 35 Foggers 45 Lawn and Garden (all other forms) 20 Lawn and Garden (Nonaerosol) 3 Wasp and Hornet 40 Laundry Prewash Aerosols / Solids 22 All Other Forms 5 Laundry Starch Products 5 Metal Polishes / Cleansers 30 Multipurpose Lubricant (Excluding Solid or Semisolid Products) 50 Nail Polish Remover 75 Nonselective Terrestrial Herbicide Nonaerosols 3 Oven Cleaners Aerosols / Pump Sprays 8 Liquids 5 Paint Remover or Strippers 50 Penetrants 50 Rubber and Vinyl Protectants Nonaerosols 3 Aerosols 10 Sealants and Caulking Compounds 4 Shaving Creams 5 Silicone-Based Multipurpose Lubricants (Excluding Solid or Semisolid Products) 60 Spot Removers Aerosols 25 Nonaerosols 8 Tire Sealants and Inflators 20 Undercoatings Aerosols 40 § 130.212. Products diluted prior to use.
(a) For consumer products for which the label, packaging or accompanying literature specifically states that the product should be diluted with water or non-VOC solvent prior to use, the limits specified in § 130.211 (relating to table of standards) apply to the product only after the minimum recommended dilution has taken place. For purposes of this subsection, minimum recommended dilution does not include recommendations for incidental use of a concentrated product to deal with limited special applications such as hard-to-remove soils or stains.
(b) For consumer products for which the label, packaging or accompanying literature states that the product should be diluted with a VOC solvent prior to use, the limits specified in § 130.211 apply to the product only after the maximum recommended dilution has taken place.
§ 130.213. Products registered under FIFRA.
For those consumer products that are registered under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) (7 U.S.C.A. §§ 136--136y), the effective date of the VOC standards specified in the Table of Standards is 1 year after the date specified in § 130.211 (relating to table of standards).
§ 130.214. Requirements for charcoal lighter materials.
The following requirements apply to charcoal lighter material products as defined in § 130.202 (relating to definitions).
(1) Regulatory standards. A person may not sell, supply or offer for sale after January 1, 2005, a charcoal lighter material product unless at the time of the transaction:
(i) The manufacturer can demonstrate that the manufacturer has been issued a currently effective certification by the CARB under the Consumer Products provisions under Subchapter 8.5, Article 2, Section 94509(h), of Title 17 of the CCR. This certification remains in effect for as long as the CARB certification remains in effect. A manufacturer claiming a certification on this basis shall submit to the Department a copy of the certification decision (that is, the Executive Order), including all conditions established by CARB applicable to the certification.
(ii) The manufacturer or distributor of the charcoal lighter material has been issued a currently effective certification under paragraph (2).
(iii) The charcoal lighter material meets the formulation criteria and other conditions specified in the applicable ACP agreement issued under paragraph (2).
(iv) The product usage directions for the charcoal lighter material are the same as those provided to the Commonwealth under paragraph (2)(iii).
(2) Certification requirements.
(i) A charcoal lighter material formulation will not be certified under this subsection unless the applicant for certification demonstrates to the Department's satisfaction that the VOC emissions from the ignition of charcoal with the charcoal lighter material are less than or equal to 0.020 pound of VOC per start, using the procedures specified in the South Coast Air Quality Management District Rule 1174 Ignition Method Compliance Certification Protocol, dated February 27, 1991 (South Coast Air Quality Management District Rule 1174 Testing Protocol). The provisions relating to LVP-VOC in § 130.333 (relating to LVP-VOC) do not apply to a charcoal lighter material subject to the requirements of this section and § 130.211.
(ii) The Department may approve alternative test procedures which are shown to provide equivalent results to those obtained using the South Coast Air Quality Management District Rule 1174 Test Protocol.
(iii) A manufacturer or distributor of charcoal lighter material may apply to the Department for certification of a charcoal lighter material formulation.
(3) Notice of modifications. For a charcoal lighter material for which certification has been granted the applicant for certification shall notify the Department in writing within 30 days of:
(i) A change in the usage directions.
(ii) A change in product formulation, test results or other information submitted under paragraph (2) which may result in VOC emissions greater than 0.020 pound of VOC per start.
(4) Revocation of certification. If the Department determines that a certified charcoal lighter material formulation results in VOC emissions from the ignition of charcoal which are greater than 0.020 pound of VOC per start, as determined by the South Coast Air Quality Management District Rule 1174 Testing Protocol and the statistical analysis procedures contained therein, the Department will revoke or modify the certification as is necessary to assure that the charcoal lighter material will result in VOC emissions of less than or equal to 0.020 pound of VOC per start.
§ 130.215. Requirements for aerosol adhesives.
(a) As specified in CCR Section 41712(h)(2), the standards for aerosol adhesives apply to all uses of aerosol adhesives, including consumer, industrial and commercial uses. Except as otherwise provided in §§ 130.331--130.337, 130.351 and 130.352 and 130.411--130.414, a person may not sell, supply, offer for sale, use or manufacture for sale in this Commonwealth an aerosol adhesive which, at the time of sale, use or manufacture, contains VOCs in excess of the specified standard.
(b) For a special purpose spray adhesive:
(1) To qualify as a special purpose spray adhesive, the product shall meet one or more of the definitions specified in § 130.202 (relating to definitions), but if the product label indicates that the product is suitable for use on a substrate or application not listed in § 130.202, the product will be classified as either a ''web spray adhesive'' or a ''mist spray adhesive.''
(2) If a product meets more than one of the definitions specified in § 130.202 for special purpose spray adhesive, and is not classified as a web spray adhesive or mist spray adhesive, the VOC limit for the product shall be the lowest applicable VOC limit specified in § 130.211 (relating to table of standards).
(c) Aerosol adhesives shall comply with the labeling requirements specified in § 130.373 (relating to additional labeling requirements for aerosol adhesives).
§ 130.216. Requirements for floor wax strippers.
A person may not sell, supply, offer for sale or manufacture for use in this Commonwealth a floor wax stripper unless the following requirements are met:
(1) The label of each nonaerosol floor wax stripper shall specify a dilution ratio for light or medium build-up of polish that results in an as-used VOC concentration of 3% by weight or less.
(2) If a nonaerosol floor wax stripper is also intended to be used for removal of heavy build-up of polish, the label of that floor wax stripper shall specify a dilution ratio for heavy build-up of polish that results in an as-used VOC concentration of 12% by weight or less.
EXEMPTIONS § 130.331. Products for shipment and use outside this Commonwealth.
(a) This subchapter does not apply to a consumer product manufactured in this Commonwealth for shipment and use outside of this Commonwealth.
(b) This subchapter does not apply to a manufacturer or distributor who sells, supplies or offers for sale in this Commonwealth a consumer product that does not comply with the VOC standards specified in § 130.211 (relating to table of standards), as long as the manufacturer or distributor can demonstrate both that the consumer product is intended for shipment and use outside of this Commonwealth, and that the manufacturer or distributor has taken reasonable prudent precautions to assure that the consumer product is not distributed in this Commonwealth.
§ 130.332. Antiperspirants and deodorants.
(a) The MVOC content standards in § 130.211 (relating to table of standards) for antiperspirants and deodorants do not apply to ethanol.
(b) The VOC limits specified in § 130.211 do not apply to fragrances up to a combined level of 2% by weight contained in a consumer product and do not apply to colorants up to a combined level of 2% by weight contained in an antiperspirant or deodorant.
(c) The requirements of § 130.211 for antiperspirants and deodorants do not apply to those VOCs that contain more than 10 carbon atoms per molecule and for which the vapor pressure is unknown, or that have a vapor pressure of 2 mm Hg or less at 20°C.
§ 130.333. LVP-VOC.
The VOC limits specified in § 130.211 (relating to table of standards) do not apply to an LVP-VOC.
§ 130.334. Products registered under FIFRA.
The requirements of § 130.371 (relating to code-dating) do not apply to consumer products registered under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) (7 U.S.C.A. §§ 136--136y).
§ 130.335. Air fresheners.
(a) The VOC limits specified in § 130.211 (relating to table of standards) do not apply to air fresheners that are comprised entirely of fragrance, less compounds not defined as VOCs under § 130.202 (relating to definitions) or exempted under this section.
(b) The VOC limits specified in § 130.211 do not apply to air fresheners and insecticides containing at least 98% paradichlorobenzene.
§ 130.336. Adhesives.
The VOC limits specified in § 130.211 (relating to table of standards) do not apply to adhesives sold in containers of 1 fluid ounce or less.
§ 130.337. Bait station insecticides.
The VOC limits specified in § 130.211 (relating to table of standards) do not apply to bait station insecticides. For the purpose of this section, bait station insecticides are containers enclosing an insecticidal bait that is not more than 0.5 ounce by weight, where the bait is designed to be ingested by insects and is composed of solid material feeding stimulants with less than 5% active ingredients.
INNOVATIVE PRODUCTS § 130.351. Innovative products exemption.
A manufacturer of consumer products that has been granted an innovative products exemption by the CARB under the innovative products provisions in Subchapter 8.5, Article 2, Section 94511, or Subchapter 8.5, Article 1, Section 94503.5 of Title 17 of the CCR shall be exempt from § 130.211 (relating to table of standards) for the period of time that the CARB innovative products exemption remains in effect provided that all consumer products within the CARB innovative products exemption are contained in § 130.211. A manufacturer claiming such an exemption on this basis shall submit to the Department a copy of the CARB innovative products exemption decision (that is, the Executive Order), including all conditions established by CARB applicable to the exemption.
§ 130.352. Request for exemption.
A manufacturer of consumer products that has been granted an innovative products exemption under the innovative products provisions in Subchapter 8.5, Article 2, Section 94511, or Subchapter 8.5, Article 1, Section 94503.5 of Title 17 of the CCR based on California-specific data, or that has not been granted an exemption by CARB may seek an innovative products exemption in accordance with the following criteria:
(1) The Department may exempt a consumer product from the VOC limits specified in § 130.211 (relating to table of standards) if a manufacturer demonstrates that, due to some characteristic of the product formulation, design, delivery systems or other factors, the use of the product will result in less VOC emissions than the standard established in § 130.211.
(2) A manufacturer shall apply in writing to the Department for an exemption claimed under this section. The application shall include the supporting documentation that demonstrates the emissions from the innovative product, including the actual physical test methods used to generate the data and, if necessary, the consumer testing undertaken to document product usage. In addition, the applicant shall provide information necessary to enable the Department to establish enforceable conditions for granting the exemption including the VOC content for the innovative product and test methods for determining the VOC content.
(3) If the VOC limits specified in § 130.211 are lowered for a product category through a subsequent rulemaking, the innovative product exemptions granted for products in the product category, except as provided in this subsection, shall have no force and effect as of the effective date of the modified VOC standard. This paragraph does not apply to those innovative products which have VOC emissions less than the applicable lowered VOC limit and for which a written notification of the product's emissions status versus the lowered VOC limit has been submitted to and approved by the Department at least 60 days before the effective date of the limits.
(4) If the Department believes that a consumer product for which an exemption has been granted no longer meets the criteria for an innovative product specified in paragraph (1), the Department may modify or revoke the exemption as necessary to assure that the product will meet these criteria.
ADMINISTRATIVE REQUIREMENTS § 130.371. Code-dating.
(a) Code-dating. Each manufacturer of a consumer product subject to §§ 130.211--130.216 (relating to standards) shall clearly display on each consumer product container or package, the day, month and year on which the product was manufactured, or a code indicating that date. The date or date-code information shall be located on the container or inside the cover/cap so that it is readily observable or obtainable (by simply removing the cap/cover) without disassembling a part of the container or packaging. This date or code shall be displayed on each consumer product container or package no later than January 1, 2004. The requirements of this subsection do not apply to products containing no VOCs as defined in § 130.202 (relating to definitions), or containing VOCs at 0.10% by weight or less.
(b) Explanation of code. If a manufacturer uses a code indicating the date of manufacture for a consumer product subject to §§ 130.211--130.216, an explanation of the code shall be filed with the Department no later than 12 months prior to the effective date of the applicable standard specified in § 130.211.
§ 130.372. Most restrictive limit.
Notwithstanding the definition of ''product category'' in § 130.202 (relating to definitions), if on the principal display panel of a consumer product, a representation is made that the product may be used as, or is suitable for use as a consumer product for which a lower VOC limit is specified in § 130.211 (relating to table of standards), the lowest VOC limit applies. This requirement does not apply to general purpose cleaners and antiperspirant/deodorant products.
§ 130.373. Additional labeling requirements for aerosol adhesives.
(a) In addition to the requirements specified in §§ 130.371 and 130.372, 130.391 and 130.392, both the manufacturer and responsible party for each aerosol adhesive product subject to this subchapter shall ensure that all products clearly display the following information on each product container which is manufactured on or after January 1, 2005:
(1) The aerosol adhesive category as specified in § 130.211 (relating to table of standards) or an abbreviation of the category shall be displayed.
(2) The applicable VOC standard for the product that is specified in § 130.211 expressed as a percentage by weight, shall be displayed unless the product is included in an alternative control plan approved by the Department, as provided in §§ 130.451--130.465 (relating to ACP for consumer products).
(3) If the product is included in an alternative control plan approved by the Department, and the product exceeds the applicable VOC standard specified in § 130.211, the product shall be labeled with the term ''ACP'' or ''ACP product.''
(4) If the product is classified as a special purpose spray adhesive, the applicable substrate or application or an abbreviation of the substrate or application that qualifies the product as special purpose shall be displayed.
(5) If the manufacturer or responsible party uses an abbreviation as allowed by this section, an explanation of the abbreviation shall be filed with the Department before the abbreviation is used.
(b) The information required in § 130.371(a) (relating to code-dating) shall be displayed on the product container so that it is readily observable without removing or disassembling a portion of the product container or packaging. For the purposes of this subsection, information may be displayed on the bottom of a container as long as it is clearly legible without removing product packaging.
REPORTING REQUIREMENTS § 130.391. Required reporting of information to the Department.
Upon 90 days written notice, the Department may require a responsible party to report information for a consumer product the Department may specify.
§ 130.392. Confidentiality.
The information submitted by a responsible party under § 130.391 (relating to required reporting of information to the Department) or in accordance with other provisions in this subchapter will be handled in accordance with the procedures specified in section 13.2 of the Air Pollution Control Act (35 P. S. § 4013.2).
VARIANCES § 130.411. Application for variance.
(a) A person who cannot comply with §§ 130.211--130.216 (relating to standards), because of extraordinary reasons beyond the person's control, may apply in writing to the Department for a variance. The variance application shall set forth:
(1) The specific grounds upon which the variance is sought.
(2) The proposed dates by which compliance with § 130.211 (relating to table of standards) will be achieved.
(3) A compliance report reasonably detailing the methods by which compliance will be achieved.
(b) No later than 75 days after receipt of a complete variance application containing the information required in subsection (a), the Department will hold a public hearing in accordance with § 130.471 (relating to public hearings) to determine:
(1) Whether a variance from the requirements in §§ 130.211--130.216 is necessary.
(2) Under what conditions a variance from the requirements in §§ 130.211--130.216 is necessary.
(3) To what extent a variance from the requirements in §§ 130.211--130.216 is necessary.
(c) The Department will not grant a variance unless the applicant demonstrates in writing the following to the Department's satisfaction:
(1) That because of reasons beyond the reasonable control of the applicant, requiring compliance with §§ 130.211--130.216 would result in extraordinary economic hardship.
(2) That the public interest in mitigating the extraordinary hardship to the applicant by issuing the variance outweighs the public interest in avoiding increased emissions of air contaminants that would result from issuing the variance.
(3) That the compliance program proposed by the applicant can reasonably be implemented and will achieve compliance as expeditiously as possible.
§ 130.412. Variance orders.
A variance order shall specify a final compliance date by which the requirements of §§ 130.211--130.216 (relating to standards) will be achieved. A variance order shall contain a condition that specifies increments of progress necessary to assure timely compliance, and other conditions that the Department, in consideration of the testimony received at the hearing, finds necessary.
§ 130.413. Termination of variance.
A variance shall cease to be effective upon failure of the party to whom the variance was granted to comply with a term or condition of the variance.
§ 130.414. Modification of variance.
Upon the application of a person, the Department may review, and for good cause, modify or revoke a variance from requirements of §§ 130.211--130.216 (relating to standards) after holding a public hearing in accordance with § 130.471 (relating to public hearings).
TEST METHODS § 130.431. Testing for compliance.
(a) Testing to determine compliance with this subchapter shall be performed by one of the following:
(1) Using CARB Method 310, ''Determination of Volatile Organic Compounds (VOC) in Consumer Products,'' adopted September 25, 1997, and as last amended on September 3, 1999.
(2) Alternative methods which are shown to accurately determine the concentration of VOCs in a subject product or its emissions may be used upon approval of the Department.
(3) Calculation of the VOC content from records of the amounts of constituents used to make the product under the following criteria:
(i) Compliance determinations based on these records may not be used unless the manufacturer of a consumer product keeps accurate records for each day of production of the amount and chemical composition of the individual product constituents. These records shall be kept for at least 3 years and be made available to the Department on request.
(ii) For the purposes of this section, the VOC content (expressed as a percentage) shall be calculated according to the following equation:
VOC Content = ( B - C ) × 100
______
Awhere,
A = total net weight of unit (excluding container and packaging)
B = total weight of all VOCs per unit.
C = total weight of VOCs exempted under §§ 130.331--130.337, 130.351 and 130.352 per unit
(iii) If product records appear to demonstrate compliance with the VOC limits, but these records are contradicted by product testing performed using CARB Method 310, the results of CARB Method 310 shall take precedence over the product records and may be used to establish a violation of the requirements of this section.
(b) Testing to determine whether a product is a liquid or solid shall be performed using ASTM D4359-90 (May 25, 1990).
(c) Testing to determine compliance with the certification requirements for charcoal lighter material shall be performed using the procedures specified in the South Coast Air Quality Management District Rule 1174 Ignition Method Compliance Certification Protocol (February 28, 1991).
(d) Testing to determine distillation points of petroleum distillate-based charcoal lighter materials shall be performed using ASTM D86-90 (September 28, 1990).
(e) A person may not create, alter, falsify or otherwise modify records so that the records do not accurately reflect the constituents used to manufacture a product, the chemical composition of the individual product, and other test, processes or records used in connection with product manufacture.
ACP FOR CONSUMER PRODUCTS § 130.451. Alternative methods of compliance.
The purpose of this section is to provide an alternative method to comply with the Table of Standards specified in § 130.211 (relating to table of standards). 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 this subchapter. Only responsible ACP parties for consumer products may enter into an ACP.
§ 130.452. Exemption.
A manufacturer of consumer products which has been granted an ACP agreement by the CARB under Subchapter 8.5, Article 4, Sections 94540-94555, of Title 17 of the CCR shall be exempt from § 130.211 (relating to table of standards) 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 § 130.211. A manufacturer claiming such an ACP agreement on this basis shall submit to the Department a copy of the CARB ACP decision (that is, the Executive Order), including the conditions established by CARB applicable to the exemption.
§ 130.453. Request for exemption.
(a) Manufacturers of consumer products that have been granted an ACP agreement under the ACP provision in Subchapter 8.5, Article 4, sections 94540--94555, of Title 17 of the CCR based on California specific data, or that have not been granted an exemption by the CARB may seek an ACP agreement with the Department.
(b) The Department will not approve an ACP submitted by a responsible ACP party if the Department determines, upon review of the responsible ACP party's compliance history with past or current ACPs or the requirements for consumer products in this subchapter, that the responsible ACP party has a recurring pattern of violations and has consistently refused to take the necessary steps to correct those violations.
§ 130.454. Application for an ACP.
A manufacturer of consumer products that has been granted an ACP agreement by the CARB under the ACP provision in Subchapter 8.5, Article 4, Sections 94540--94555, of Title 17 of the CCR based on California-specific data, or that has not been granted an exemption by the CARB may seek an ACP agreement by submitting an application. The application shall:
(1) Identify the responsible ACP party including names, telephone numbers and addresses of the representative of the manufacturer who will be responsible for implementing the ACP requirements specified in the ACP agreement.
(2) Contain a statement of whether the responsible ACP party is a small business or a one-product business.
(3) Contain a listing of the exact product brand name, form, available variations (flavors, scents, colors, sizes, and the like), and applicable product category for each distinct ACP product that is proposed for inclusion in the ACP.
(4) Demonstrate in writing to the satisfaction of the Department that the enforceable sales records to be used by the responsible ACP party for tracking product sales provide the following information:
(i) The names, telephone numbers, street and mail addresses of all persons and businesses who will provide information that will be used to determine the enforceable sales.
(ii) The enforceable sales of each ACP product.
(iii) A written demonstration to the satisfaction of the Department regarding the validity of the enforceable sales.
(iv) The percentage of the gross Pennsylvania sales which is comprised of enforceable sales.
(v) That the ACP products have enforceable sales that are 75% or more of the gross Pennsylvania sales. Only ACP products meeting this criteria will be allowed to be sold in this Commonwealth under an ACP.
(5) Include legible copies of the existing labels for each ACP product specifying the VOC and LVP content.
(6) Report for each of the ACP products:
(i) The VOC and LVP-VOC contents of the product at the time the application for an ACP is submitted.
(ii) Changes in VOC and LVP contents of the product that have occurred within the 4 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 10.0% of the VOC or LVP contents reported in subparagraph (i).
(7) Contain a written commitment obligating the responsible ACP party to date-code every unit of each ACP product approved for inclusion in the ACP and to display the date-code on each ACP product container or package no later than 5 working days after the date an ACP agreement is signed by the Department.
(8) Contain an operational plan covering the products identified under this section for each compliance period that the ACP will be in effect. This plan shall:
(i) Identify the compliance periods and dates for the responsible ACP party to report the information required by the Department in the ACP agreement approving an ACP. The length of the compliance period chosen by the responsible ACP party shall be no longer than 365 days.
(ii) Identify the specific enforceable sales records to be provided to the Department for enforcing this chapter and the ACP agreement. The enforceable sales records shall be provided to the Department no later than the compliance period reporting dates specified in subparagraph (i).
(iii) For a small business or a one-product business that will be relying on surplus trading to meet the ACP limits, contain a written commitment from the responsible ACP parties that they will transfer the surplus reductions to the small business or one-product business upon approval of the ACP.
(iv) Specify the VOC content levels for each ACP product that will be applicable for the ACP product during each compliance period and identify the specific methods by which the VOC content will be determined and the statistical accuracy and precision (repeatability and reproducibility) calculated for each specified method.
(v) Estimate the projected enforceable sales for each ACP product at each different VOC content for every compliance period that the ACP will be in effect.
(vi) Contain a detailed demonstration showing the combination of specific ACP reformulations or surplus trading reductions (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 reformulations or surplus trading reductions are expected to occur, and the extent to which the VOC contents of the ACP products will be reduced (that is, by ACP reformulation). This demonstration shall also include all VOC content levels and projected enforceable sales for all ACP products to be sold in this Commonwealth during each compliance period.
(vii) Contain a written explanation of the date-codes that will be displayed on each ACP product container or packaging.
(viii) Contain a statement of the approximate dates by which the responsible ACP party plans to meet the applicable ACP VOC standards for each product in the ACP.
(ix) Contain an operational plan (''reconciliation of shortfalls plan'') which commits the responsible ACP party to completely reconcile shortfalls, even, to the extent permitted by law, if the responsible ACP party files for bankruptcy protection. The plan for reconciliation of shortfalls shall demonstrate how shortfalls will be reconciled within 90 working days from the date the shortfall is determined, listing the records and other information that will be used to verify that the shortfalls were reconciled.
(9) Contain a declaration, signed by a legal representative for the responsible ACP party, that states that all information and operational plans submitted with the ACP application are true and correct under penalty of law. This declaration shall certify that all reductions in the VOC content of a product will be real and 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 this chapter.
§ 130.455. Recordkeeping and availability of requested information.
(a) Information specified in the ACP agreement approving an ACP shall be maintained by the responsible ACP party for at least 3 years after the records are generated. The records shall be clearly legible and maintained in good condition during this period.
(b) The records specified in this section shall be made available to the Department:
(1) Immediately upon request during an onsite visit to a responsible ACP party.
(2) Within 15 working days after receipt of a written request from the Department.
(3) Within a time period mutually agreed upon by both the Department and the responsible ACP party.
§ 130.456. Surplus reductions and surplus trading.
(a) The Department will issue surplus reduction certificates which establish and quantify, to the nearest pound of VOC reduced, surplus reductions achieved by a responsible ACP party operating under an ACP. The surplus reductions can be bought from, sold to or transferred to a responsible ACP party operating under an ACP, as provided in this section. Surplus reductions will be calculated by the Department at the end of each compliance period within the time specified in the approved ACP. Surplus reduction certificates do not constitute instruments, securities or other form of property.
(b) The issuance, use and trading of all surplus reductions shall be subject to the following provisions:
(1) For the purposes of this section, VOC reductions from sources of VOCs other than consumer products subject to the VOC standards specified in § 130.211 (relating to table of standards) may not be used to generate surplus reductions.
(2) Surplus reductions are valid only when generated by a responsible ACP party, and only while that responsible ACP party is operating under an approved ACP.
(3) Surplus reductions are valid only after the Department has issued an ACP agreement under this section.
(4) Surplus reductions issued by the Department may be used by the responsible ACP party who generated the surplus until the reductions expire or are traded or until the ACP is canceled under this section.
(5) Surplus reductions cannot be applied retroactively to a compliance period prior to the compliance period in which the reductions were generated.
(6) Except as provided in this section, only small or one-product businesses selling products under an approved ACP may purchase surplus reductions. An increase in the size of a small business or one-product business shall have no effect on surplus reductions purchased by that business prior to the date of the increase.
(7) While valid, surplus reductions can be used only for one of the following purposes:
(i) To adjust the ACP emissions of either the responsible ACP party who generated the reductions or the responsible ACP party to which the reductions were traded, provided the surplus reductions are not to be used by a responsible ACP party to further lower its ACP emissions when its ACP emissions are equal to or less than the ACP limit during the applicable compliance period.
(ii) To be traded for the purpose of reconciling another responsible ACP party's shortfalls, provided the reconciliation is part of the reconciliation of shortfalls plan approved by the Department under this section.
(8) A valid surplus reduction shall be in effect starting 5 days after the date of issuance by the Department, for a continuous period equal to the number of days in the compliance period during which the surplus reduction was generated. The surplus reduction shall then expire at the end of its effective period.
(9) At least 5 working days prior to the effective date of transfer of surplus reductions, both the responsible ACP party which is selling surplus reductions and the responsible ACP party which is buying the surplus reductions shall, either together or separately, notify the Department in writing of the transfer. The notification shall include the following:
(i) The date the transfer is to become effective.
(ii) The date the surplus reductions being traded are due to expire.
(iii) The amount (in pounds of VOCs) of surplus reductions that are being transferred.
(iv) The total purchase price paid by the buyer for the surplus reductions.
(v) The contact persons, names of the companies, street and mail addresses and phone numbers of the responsible ACP parties involved in the trading of the surplus reductions.
(vi) A copy of the Department-issued surplus reductions certificate, signed by both the seller and buyer of the certificate, showing transfer of all or a specified portion of the surplus reductions. The copy shall show the amount of remaining nontraded surplus reductions, if applicable, and shall show their expiration date. The copy shall indicate that both the buyer and seller of the surplus reductions fully understand the conditions and limitations placed upon the transfer of the surplus reductions and accept full responsibility for the appropriate use of the surplus reductions as provided in this section.
(10) Surplus reduction credits shall only be traded between ACPs products for consumer products.
§ 130.457. Limited-use surplus reduction credits for early reformulations of ACP products.
(a) For the purposes of this section, ''early reformulation'' means an ACP product which is reformulated to result in a reduction in the product's VOC content, and which is sold, supplied or offered for sale in this Commonwealth for the first time during the 1 year (365-day) period immediately prior to the date on which the application for a proposed ACP is submitted to the Department. ''Early reformulation'' does not include reformulated ACP products which are sold, supplied or offered for sale in this Commonwealth more than 1 year prior to the date on which the ACP application is submitted to the Department.
(b) If requested in the application for a proposed ACP, the Department will, upon approval of the ACP, issue surplus reduction credits for early reformulations of ACP products, provided that the following documentation has been provided by the responsible ACP party to the satisfaction of the Department:
(1) Accurate documentation showing that the early reformulation reduced the VOC content of the ACP product to a level which is below the pre-ACP VOC content of the product, or below the applicable VOC standards in § 130.211 (relating to table of standards), whichever is the lesser of the two.
(2) Accurate documentation demonstrating that the early reformulated ACP product was sold in retail outlets in this Commonwealth within the time period specified in this section.
(3) Accurate sales records for the early reformulated ACP product which meets the definition of ''enforceable sales records'' in § 130.202 (relating to definitions), and which demonstrate that the enforceable sales for the ACP product are at least 75% of the gross Pennsylvania sales for the product.
(4) Accurate documentation for the early reformulated ACP product which meets the requirements specified in this section, and which identifies the specific test methods for verifying the claimed early reformulation and the statistical accuracy and precision of the test methods as specified in this section.
(c) Surplus reduction credits issued under this section shall be calculated separately for each early reformulated ACP product by the Department according to the following equation:
SR = Enforceable Sales × ((VOC Content)initial - (VOC Content)final)
___________________________
100where,
SR = surplus reductions for the ACP product, expressed to the nearest pound
Enforceable Sales = the enforceable sales for the early reformulated ACP product, expressed to the nearest pound of ACP product,
VOC Contentinitial = the Pre-ACP VOC content of the ACP product, or the applicable VOC standard specified in § 130.211, whichever is the lesser of the two, expressed to the nearest 0.1 pound of VOC per 100 pounds of ACP product,
VOC Contentfinal = the VOC Content of the early reformulated ACP product after the early reformulation is achieved, expressed to the nearest 0.1 pound of VOC per 100 pounds of ACP product.
(d) The use of surplus reduction credits issued under this section shall be subject to the following:
(1) Surplus reduction credits shall be used solely to reconcile the responsible ACP party's shortfalls generated during the first compliance period occurring immediately after the issuance of the ACP agreement approving an ACP, and may not be used for another purpose.
(2) Surplus reduction credits may not be transferred to, or used by, another responsible ACP party.
(3) Except as provided in this section, surplus reduction credits shall be subject to the requirements applicable to surplus reductions and surplus trading, as specified in this section.
§ 130.458. Reconciliation of shortfalls.
(a) At the end of each compliance period, the responsible ACP party shall make an initial calculation of shortfalls occurring in that compliance period, as specified in the ACP agreement approving the ACP. Upon receipt of this information, the Department will determine the amount of a shortfall that has occurred during the compliance period, and notify the responsible ACP party of this determination.
(b) The responsible ACP party shall implement the reconciliation of shortfalls plan as specified in the ACP agreement approving the ACP, within 30 working days from the date of written notification of a shortfall by the Department.
(c) Shortfalls shall be completely reconciled within 90 working days from the date of written notification of a shortfall by the Department, by implementing the reconciliation of shortfalls plan specified in the ACP agreement approving the ACP.
(d) The requirements specified in the ACP agreement approving an ACP, including the applicable ACP limits, shall remain in effect while shortfalls are in the process of being reconciled.
§ 130.459. Notification of modifications to an ACP by the responsible ACP party.
(a) Modifications that do not require Department preapproval. The responsible ACP party shall notify the Department, in writing, of a change in the following with respect to an ACP product:
(1) Product name.
(2) Product formulation.
(3) Product form.
(4) Product function.
(5) Applicable product category.
(6) VOC content.
(7) LVP content.
(8) Date-codes.
(9) Recommended product usage directions.
(b) Notification. The notification shall be submitted no later than 15 working days from the date the change occurs. For each modification, the notification shall fully explain the following:
(1) The nature of the modification.
(2) The extent to which the ACP product formulation, VOC content, LVP content or recommended usage directions will be changed.
(3) The extent to which the ACP emissions and ACP limit specified in the ACP agreement will be changed for the applicable compliance period.
(4) The effective date and corresponding date-codes for the modification.
§ 130.460. Modifications that require Department preapproval.
The responsible ACP party may propose modifications to the enforceable sales records or reconciliation of shortfalls plan specified in the ACP agreement approving the ACP. Proposed modifications shall be fully described in writing and forwarded to the Department. The responsible ACP party shall clearly demonstrate that the proposed modifications will meet the requirements of this subchapter. The responsible ACP party shall meet all applicable requirements of the existing ACP until a proposed modification is approved in writing by the Department.
§ 130.461. Other modifications.
The responsible ACP party shall notify the Department, in writing, of information that the responsible ACP party may have which may alter the information submitted under § 130.454 (relating to application for an ACP). The responsible ACP party shall provide the notification to the Department no later than 15 working days from the date the information is known to the responsible ACP party.
§ 130.462. Modification of an ACP by the Department.
(a) The Department will modify the ACP as necessary to ensure that the ACP meets the requirements of this subchapter and that the ACP emissions will not exceed the ACP limit if the Department determines one of the following:
(1) The enforceable sales for an ACP product are no longer at least 75% of the gross Pennsylvania sales for that product.
(2) The information submitted under the approval process in § 130.454 (relating to application for an ACP) is no longer valid.
(3) The ACP emissions are exceeding the ACP Limit specified in the ACP agreement.
(b) The Department will not modify the ACP without first affording the responsible ACP party an opportunity for a public hearing in accordance with § 130.471 (relating to public hearings) to determine if the ACP should be modified.
(c) If an applicable VOC standard specified in § 130.211 (relating to table of standards) is modified by CARB in a future rulemaking, the Department will modify the ACP limit specified in the ACP agreement approving an ACP to reflect the modified ACP VOC standards as of its effective date.
§ 130.463. Cancellation of an ACP.
An ACP shall remain in effect until:
(1) The ACP reaches the expiration date specified in the ACP agreement.
(2) The ACP is modified by the responsible ACP party and approved by the Department.
(3) The ACP is modified by the Department.
(4) The ACP includes a product for which the VOC standard specified in § 130.211 (relating to table of standards) is modified by the Department in a future rulemaking, and the responsible ACP party informs the Department in writing that the ACP will terminate on the effective date of the modified standard.
(5) The ACP is cancelled by the Department.
§ 130.464. Treatment of information.
The information required by this section, §§ 130.451--130.463 and 130.465 related to product formulation shall be protected as confidential business information upon written request to the Department by the responsible ACP party. Other information submitted to the Department to meet the requirements of this subchapter will be handled in accordance with section 13.2 of the Air Pollution Control Act (35 P. S. § 4013.2).
§ 130.465. Other applicable requirements.
A responsible ACP party may transfer an ACP to another responsible ACP party, provided that the following conditions are met:
(1) The Department shall be notified, in writing, by both responsible ACP parties participating in the transfer of the ACP and its associated ACP agreement. The written notifications shall be postmarked at least 5 working days prior to the effective date of the transfer and shall be signed and submitted separately by both responsible parties. The written notifications shall clearly identify the contact persons, business names, mail and street addresses, and phone numbers of the responsible parties involved in the transfer.
(2) The responsible ACP party to which the ACP is being transferred shall provide a written declaration stating that the transferee shall fully comply with the requirements of the ACP agreement approving the ACP and this subchapter.
PUBLIC HEARING REQUIREMENTS § 130.471. Public hearings.
(a) Prior to issuance, modification or revocation of a variance order or an ACP, the Department will hold a hearing to take public comment.
(b) The Department will publish notice of the time, place and purpose of the hearing in a local newspaper of general circulation and the Pennsylvania Bulletin not less than 30 days prior to the hearing.
(c) At least 30 days prior to the hearing the Department will make available the application for the variance or ACP and the proposed order for issuing, modifying or revoking the variance or ACP.
[Pa.B. Doc. No. 02-1732. Filed for public inspection October 4, 2002, 9:00 a.m.]
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