RULES AND REGULATIONS
Title 25--ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CH. 130]
Architectural and Industrial Maintenance Coatings
[33 Pa.B. 5297] The Environmental Quality Board (Board) adopts Subchapter C (relating to architectural and industrial maintenance coatings) to read as set forth in Annex A.
The final-form rulemaking adds definitions in § 130.302 (relating to definitions) for terms that are used in the substantive sections of Chapter 130 (relating to standards for products). Section 130.301 (relating to applicability) will apply to persons who supply, sell, offer for sale, manufacture, blend, repackage, apply or solicit for application architectural and industrial maintenance (AIM) coatings for use in this Commonwealth. Sections 130.303--130.311 establish, among other things, standards for volatile organic compound (VOC) content limits for those coatings, labeling requirements, reporting requirements, procedures for applying for and obtaining variances, including procedures for a public hearing and test method compliance requirements.
This order was adopted by the Board at its meeting of July 15, 2003.
A. Effective Date
Subchapter C will go into effect upon publication in the Pennsylvania Bulletin as a final-form rulemaking.
B. Contact Persons
For further information contact Terry Black, Chief, Regulation and Policy Development Section, Division of Air Resource Management, Bureau of Air Quality, Rachel Carson State Office Building, P. O. Box 8468, Harrisburg, PA 17105-8468, (717) 787-2030; or Kristen Campfield, Assistant Counsel, Bureau of Regulatory Counsel, Office of Chief Counsel, P. O. Box 8464, Rachel Carson State Office Building, Harrisburg, PA 17105-8464, (717) 787-7060. Persons with a disability may use the AT&T Relay Service, (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This final-form rulemaking is available electronically through the Department of Environmental Protection's (Department) website (http://www.dep.state.pa.us).
C. Statutory Authority
The final-form rulemaking is being made under the authority of section 5 of the Air Pollution Control Act (35 P. S. § 4005), which grants the Board the authority to adopt regulations for the prevention, control, reduction and abatement of air pollution.
D. Background
When ground-level ozone is present in concentrations in excess of the Federal health-based standard, public health is adversely affected. The United States Environmental Protection Agency (EPA) has concluded that there is an association between ambient ozone concentrations and increased hospital admissions for respiratory ailments, such as asthma. Further, although children, the elderly and those with respiratory problems are most at risk, even healthy individuals may experience increased respi-ratory ailments and other symptoms when they are exposed to ambient ozone while engaged in activities that involve physical exertion. Though the symptoms are often temporary, repeated exposure could result in permanent lung damage. The implementation of additional measures to address ozone air quality nonattainment in this Commonwealth is necessary to protect the public health.
The purpose of this final-form rulemaking is to reduce the VOCs emitted from AIM coatings. This final-form rulemaking is part of the Commonwealth's strategy to achieve and maintain the ozone standard throughout this Commonwealth. A Federal AIM coatings rule was promulgated in 1998. The Federal rule, however, did not provide the expected cost-effective and creditable VOC emission reductions originally anticipated by the Commonwealth and many other states. To capture additional emission reductions, the Commonwealth is adopting this final-form rulemaking, which is based on the Ozone Transport Commission (OTC) model rule, to reduce the allowable VOC content of AIM coatings. The Commonwealth has used the California Air Resources Board (CARB) Suggested Control Measure (SCM) and the OTC model rule and background material as a starting point and reviewed those documents, including specific emission reductions, for applicability in this Commonwealth. As a result, the Board's final-form rulemaking includes product categories covered in California, with limits effective at a date later than in California. To maximize consistency, VOC content limits for specific product categories in many cases are identical to those used in California.
This final-form rulemaking sets specific VOC content limits, in grams per liter, for 48 AIM coating categories and requires more stringent VOC content limits than the Federal rule. The limits are currently in effect in California and are known to be technologically feasible. The compliance date for the Commonwealth's limits is January 1, 2005. Manufacturers will ensure compliance with the limits by reformulating coatings and substituting coatings with compliant coatings that are already on the market.
Manufacturers producing AIM coatings will be responsible for developing and distributing compliant coatings for sale at the retail and wholesale levels. In addition, persons who sell, supply, offer for sale, blend or repackage AIM coatings will also be held accountable. Consumers should not be affected by this final-form rulemaking in that they should not notice any changes in the performance or quality of AIM coatings. Consumers may, however, experience a cost increase for certain paint products. Cost data developed by E. H. Pechan & Associates indicate the cost per ton of VOC reductions under the final-form AIM rulemaking to be approximately $6,400 per ton of reductions. An analysis conducted by Aberdeen Proving Grounds, however, indicates that low VOC coatings are available that will result in average savings of approximately $1.76 per gallon compared with higher VOC coatings.
The final-form rulemaking contains VOC content requirements for a wide variety of field-applied coatings, including graphic arts coatings, lacquers, primers and stains, to name a few. It also contains provisions for a variance from the VOC content limits, which can be issued only after public hearing and with conditions for achieving timely compliance. The final-form rulemaking contains administrative requirements for labeling and reporting. There is a reporting requirement so that manufacturers may be required to submit information to the Commonwealth upon request. There are a number of test methods that must be used to demonstrate compliance with this final-form rulemaking. Some of these test methods include those promulgated by the EPA and the South Coast Air Quality Management District of California. Enforcement of the VOC content limits and other requirements will be done by the Commonwealth. Because the Commonwealth, in conjunction with other northeastern states, met over an 18-month period with representatives of National trade associations and related industries prior to proposing this final-form rulemaking, it is important that the final-form rulemaking be implemented consistently and uniformly.
The Department worked with the Air Quality Technical Advisory Committee (AQTAC) in the development of this final-form rulemaking. At its February 20, 2003, meeting, the AQTAC recommended adoption of this final-form rulemaking, with the deletion of proposed § 130.303(d) (relating to standards). The Committee recommended the deletion of § 130.303(d) because the Committee determined that the pollution prevention provisions contained in that section could result in potential enforcement inequities and inconsistencies.
The final-form rulemaking was also reviewed by the Small Business Compliance Advisory Committee (Committee) on April 23, 2003. The Committee supported the final-form rulemaking and endorsed the Department's determination that the final-form rulemaking should not include averaging provisions.
E. Summary of Regulatory Requirements and Major Changes Between Proposed and Final-Form Rulemakings
Section 130.301 states that Subchapter C is applicable to persons who supply, sell, offer for sale, manufacture, blend, repackage, apply or solicit for application an architectural or industrial maintenance (IM) coating for use in this Commonwealth.
Section 130.302 includes the following definitions of terms that will be used in the substantive provisions of Subchapter C: ''adhesive,'' ''aerosol coating product,'' ''antenna coating,'' ''antifouling coating,'' ''appurtenance,'' ''architectural coating,'' ''bitumens,'' ''bituminous roof coating,'' ''bituminous roof primer,'' ''bond breaker,'' ''calcimine recoater,'' ''clear brushing lacquers,'' ''clear wood coatings,'' ''coating,'' ''colorant,'' ''concrete curing compound,'' ''concrete surface retarder,'' ''conversion varnish,'' ''dry fog coating,'' ''exempt compound,'' ''faux finishing coating,'' ''fire-resistive coating,'' ''fire-retardant coating,'' ''flat coating,'' ''floor coating,'' ''flow coating,'' ''form-release compound,'' ''graphic arts coating or sign paint,'' ''high-temperature coating,'' ''impacted immersion coating,'' ''industrial maintenance coating,'' ''lacquer,'' ''low-solids coating,'' ''magnesite cement coating,'' ''mastic texture coating,'' ''metallic pigmented coating,'' ''multicolor coating,'' ''nonflat coating,'' ''nonflat high gloss coating,'' ''nonindustrial use,'' ''nuclear coating,'' ''postconsumer coating,'' ''pretreatment wash primer,'' ''primer,'' ''quick-dry enamel,'' ''quick-dry primer, sealer and undercoater,'' ''recycled coating,'' ''residence,'' ''roof coating,'' ''rust-preventive coating,'' ''sanding sealer,'' ''sealer,'' ''secondary coating (rework),'' ''shellac,'' ''shop application,'' ''solicit,'' ''specialty primer, sealer and undercoater,'' ''stain,'' ''swimming pool coating,'' ''swimming pool repair and maintenance coating,'' ''temperature-indicator safety coating,'' ''thermoplastic rubber coating and mastic,'' ''tint base,'' ''traffic marking coating,'' ''undercoater,'' ''VOC--volatile organic compound,'' ''VOC content,'' ''varnish,'' ''waterproofing concrete/masonry sealer,'' ''waterproofing sealer'' and ''wood preservative.''
Section 130.303 sets forth the quantity of VOC per liter that cannot be exceeded for coatings that are sold, supplied or offered for sale in this Commonwealth; manufactured, blended or repackaged for sale in this Commonwealth; or applied or solicited for application in this Commonwealth. VOC content limits are established for nonspecialty coating categories and specialty coatings. There are 48 coating categories regulated under this final-form rulemaking.
Section 130.304 (relating to container labeling requirements) requires that each manufacturer of coatings subject to this rule supply specific information on the coating container in which the coating is sold or distributed. Some of the information that must be displayed includes a date-code, VOC content and thinning recommendations.
Section 130.305 (relating to reporting requirements) requires that manufacturers submit reports to the Department, upon request by the Department, that specify the number of gallons sold in this Commonwealth and the methods used by the manufacturer to calculate sales in this Commonwealth.
Sections 130.306--130.310 were added at final-form rulemaking. They set forth the procedures that a person may use to apply for a variance of a limited duration with conditions for achieving compliance for AIM coating VOC content limits. The sections include a requirement for a public hearing prior to issuance, extension, modification or revocation of a variance order. When a complete variance application is received, the Department will hold the public hearing within 90 days.
Section 130.311 (relating to compliance provisions and test methods) sets forth the methods for calculating the VOC content of the coatings and the test methods, which are incorporated by reference, that are subject to the provisions of this final-form rulemaking. The test method that is current at the time the test is performed is the method that must be used.
The major changes that were made from the proposed rulemaking to the final-form rulemaking include: adding additional definitions in § 130.302 to ensure that each regulated category of coatings is clearly defined; deleting, at the AQTAC's request, proposed § 130.303(d), which would have required users to keep containers closed when not in use; adding VOC-per-liter content limits in § 130.303 for calcimine recoaters, conversion varnish, concrete surface retarders, impacted immersion coatings, lacquers (including lacquer sanding sealers), nuclear coatings and thermoplastic rubber coatings and mastic as a result of public comments received; adding §§ 130.306--130.310 to establish procedures for applying for a variance from VOC content limits, including a public hearing requirement, to allow time to comply with the limits in cases of technological infeasibility; clarifying in § 130.311 (proposed as § 130.306) that test methods used to test coatings subject to the final-form rulemaking must be the most current test method at the time testing is performed; and adding two new test methods in § 130.311 applicable to new categories added in the final-form rulemaking.
The final-form rulemaking will be submitted to the EPA as an amendment to the State Implementation Plan (SIP).
F. Summary of Comments and Responses on the Proposed Rulemaking
Several commentators indicated that many of the proposed VOC limits are not technologically feasible for the wide-ranging substrates, application environments and conditions for which a particular category of coating will be used and that the final-form rulemaking should contain revised VOC content limits for ''exterior flat coatings,'' ''nonflat coatings,'' ''nonflat high gloss coatings,'' ''floor coatings,'' ''lacquers,'' ''quick-dry coatings,'' ''sanding sealers,'' ''stains'' and ''varnishes.'' The Board disagrees. Although each manufacturer may not make all coatings in each category, compliant coatings are available in each category. The Board has not revised the VOC content limits in the final-form rulemaking. However, provisions have been added to the final-form rulemaking in §§ 130.306--130.310 that provide a mechanism for a person to obtain a variance from the VOC content limits if the person can demonstrate that compliance cannot be achieved because of technological infeasibility.
One commentator stated that the proposed VOC limits for flat coatings would eliminate currently available low VOC waterborne flat coatings that can be applied in cooler months when ozone is not a problem. The Board disagrees. Exterior flat coatings are currently available and are being marketed that meet the proposed limits and that are designed for application at temperatures as low as 35°F. Exterior coatings are designed for application on a variety of substrates including finished and unfinished siding, stucco, masonry, hardboard siding and similar surfaces. Interior flat coatings are available for application at temperatures above 50°F and may be applied to new or previously painted interior wallboard, plaster, ceilings and masonry, as well as primed or previously painted wood and metal.
Two commentators on behalf of the same organization indicated that the proposed VOC content limits would require that the coatings be transported and stored in heated environments to prevent freezing and destruction of the product. The Board disagrees. Numerous low VOC products have been introduced into the northeast market, including ultra-low VOC products, and there is no data to support the claim that these products experience increased damage because of freezing during storage and shipping.
Two commentators said that the testing and studies that were relied upon by CARB in setting the SCM, on which the limits in the final-form rulemaking are based, were not adequately performed or were laboratory tests that cannot be relied on for determining coating efficacy. The Board disagrees. The coating testing, coupled with actual field experience and consumer use and acceptance, indicates adequate performance of the coatings.
Two commentators on behalf of the same organization stated that the proposed rulemaking would confine virtually all exterior and unheated interior painting to the warmer months, reducing the livelihoods of painters and increasing the application of coating during the ozone season. The Board disagrees. Low VOC coatings are currently available that are formulated to provide for interior and exterior application at temperatures as low as 35°F. These coatings allow extension of the coating application period well beyond the ozone season.
Several commentators stated that the proposed VOC content limitations would result in the elimination of cost effective, durable and scrub resistant interior and exterior wall and trim coatings used for high traffic/usage/impact or extreme exposure environments. The Board agrees that certain coatings presently marketed for these uses may not comply with the proposed rulemaking. However, low VOC replacement products are presently being marketed that provide similar performance characteristics to the higher VOC coating materials. In the event that a manufacturer cannot produce complying products because of technological infeasibility, the manufacturer may apply in writing to the Department for a variance under § 130.306 (relating to application for variance) of the final-form rulemaking.
Two commentators suggested that the definitions of ''bituminous roof coating'' and ''bituminous roof primer'' be revised by deleting the reference to ''roofing'' from the terms and definitions. The commentators indicated that the definitions in the proposed rulemaking, requiring labeling and formulation exclusively for roofing, would cause substantial confusion among manufacturers because some of the products are formulated for multiple purposes. The Board disagrees. The definitions of the terms in the proposed rulemaking clarified that the terms and VOC content limits apply to materials formulated and labeled exclusively for roofing application. ''Bituminous roof primer'' materials formulated and labeled for multiple types of uses would be limited by the ''nonflat'' category VOC content limit of 150 grams per liter. The Board has not revised the definitions of the terms ''bituminous roof coating'' and ''bituminous roof primer'' in the final-form rulemaking.
Two commentators commented that the proposed VOC content limit of 350 grams per liter for ''bituminous roofing primer'' materials may result in increased VOC emissions because at lower temperatures more low VOC content material may be required to cover the same area than would be required of higher VOC content materials. The Board agrees that the viscosity of the ''bituminous roofing primer'' materials may increase at lower temperatures and that under some circumstances material use may increase slightly. However, if this slight increase in material use does occur, it will be outside of the ozone season (May to September) and should not negatively impact the Commonwealth's ozone reduction efforts.
Several commentators suggested that the final-form rulemaking should contain revised VOC content limits for ''interior wood clear and semi-transparent stains,'' ''interior wood varnishes,'' ''interior wood sanding sealers,'' ''exterior wood primers'' and ''floor coatings.'' The Board disagrees. Coatings are available and are being marketed that meet the VOC content limits in the rulemaking, indicating the technological feasibility of the limits and consumer acceptance of the products. In the event that a manufacturer cannot formulate complying materials because of technological infeasibility, the manufacturer may apply for a variance under § 130.306 of the final-form rulemaking. The Board has not revised the VOC content limits in the final-form rulemaking.
Several commentators stated that the proposed limits for ''interior wood stains,'' ''varnishes'' and ''sanding sealers'' are based on the assumption that complying coatings are available that meet the performance requirements for the subcategories and that the use of coatings formulated to comply with the proposed VOC content limits will result in unacceptable performance issues, including ''grain raising,'' ''lapping'' and ''panelization.'' These commentators suggested that the limits in the rulemaking should be revised. The Board does not agree that the proposed limits will produce unacceptable performance characteristics. Grain raising can be addressed with a light sanding between coating applications. Lapping of finish materials can be addressed by proper application techniques. Complying products are being produced and marketed, indicating that the products meet customer acceptance and performance expectations and that the issues of grain raising and lapping are not significant to consumers. The most common cause of panelization is reportedly the failure of the owner to maintain the floor or the indoor environment properly. There is no indication that water-based products are not appropriate, only that the finisher should be aware and use proper procedures. In the event that a manufacturer cannot formulate complying materials because of technological infeasibility, the manufacturer may apply for a variance under § 130.306 of the final-form rulemaking. The Board has not revised the VOC content limits for the products in the final-form rulemaking.
One commentator stated that the proposed VOC content limit for ''primers, sealers and undercoaters'' assumes that complying products are available or that suitable substitutes can be developed for the categories. Numerous manufacturers produce complying formulations in this coating category and there is no indication in the product literature that these coatings are inadequate. Many of the coatings are marketed with claims of exceptional performance. In the event that a manufacturer cannot formulate complying materials because of technological infeasibility, the manufacturer may apply for a variance under § 130.306 of the final-form rulemaking. The Board has not changed the limits in the final-form rulemaking.
One commentator recommended that the Department revise the VOC content limit for the ''floor coating'' category from 250 to 400 grams of VOC per liter. The commentator indicated that reliance on testing done in California was not appropriate because testing in California has been done only on concrete and not on wood floors such as there are in the northeast. According to the commentator, coatings for wood floors need the penetrating qualities of solvent-borne floor paints. The Board does not agree that the VOC content limit should be changed for floor coatings. Floor coatings are presently available and are being marketed that meet the limits in the final-form rulemaking. In the event that a manufacturer cannot formulate complying materials because of technological infeasibility, the manufacturer may apply for a variance under § 130.306 of the final-form rulemaking. The Board has not changed the VOC content limit for floor coatings in the final-form rulemaking.
One commentator suggested that the VOC content limit for ''bituminous roof primer'' should be changed to 550 grams per liter to achieve necessary application properties. The Board disagrees. Information contained in the CARB ''Staff Report for the Proposed Suggested Control Measure for Architectural Coatings'' indicates that bituminous roofing primers meeting the limit of 350 grams currently account for in excess of 50% of the market share in California. This strongly indicates that materials that meet the limit of 350 grams per liter are readily available. The Board has not revised the VOC content limit for bituminous primers in the final-form rulemaking.
One commentator recommended the addition of a separate category for ''exterior wood primers, sealers and undercoaters'' with a VOC content limit of 350 grams per liter, or, as an alternative, a revision to the definition of ''specialty primer'' to include coatings ''recommended for application to exterior wood surfaces.'' The commentator indicated that this change would be necessary to allow the use of solvent-borne primers on hardboard products to prevent water penetration. The Board does not agree that this revision is necessary. A number of coating manufacturers produce complying products in the ''primer, sealer and undercoater'' category, including products for professional use. Certain of these complying products are for use on new or unpainted wood/wood-based products. The commentator has not provided any evidence to indicate that complying formulations that provide acceptable performance are not feasible. The Board has not made this revision in the final-form rulemaking.
One commentator indicated that many coatings will take longer to dry and cure in humid or colder weather leaving the coating more vulnerable to dirt pickup and complete failure. The Board disagrees that this is a concern. Typically, the time required for the drying of water-based coatings is significantly less than the drying time for solvent based materials. When the materials are applied according to manufacturers' specifications, the finish quality and durability are satisfactory.
One commentator questioned why the Board proposed a VOC content limit of 340 grams per liter for IM coatings instead of the limit of 250 grams per liter limit in the OTC model rule. The OTC model rule contained the option for the states to set the VOC content limit for IM coatings at 340 grams per liter. This limit is also an optional limit in certain areas of California, such as San Francisco, where cooler, damper weather conditions exist. The Board proposed the limit and retained it in the final-form rulemaking because of the need for IM coatings that can be applied in cooler and damper weather conditions as might be experienced in this Commonwealth.
Two commentators on behalf of the same organization commented that the proposed solvent content restrictions would result in poorer performing, less durable coatings and in some cases would compromise effective lower solvent waterborne coatings that have been developed to replace higher solvent coatings. The Board disagrees. Although the coatings industry has provided some information concerning performance and durability of low VOC coatings, the information is subjective and does not empirically demonstrate that the reformulated coatings do not perform adequately. Numerous coating manufacturers produce complying coatings that are described in the manufacturers' product literature and in trade publications as providing exceptional film durability, having high hiding power, resistance to fading and other desirable characteristics.
Several commentators indicated that the proposed VOC content limits would result in the need for more frequent application of coatings or the application of several coats of finish material when a single application of a coating formulated at a higher VOC content might have been satisfactory. The commentators suggested that this could result in increased VOC emissions rather than reducing emissions. The Board disagrees that the proposed VOC content limits will result in increased VOC emissions resulting from the need for more frequent application of coatings due to inadequate coating performance. Information available for products currently available that meet the proposed VOC content limits indicates that the products have application and performance characteristics equivalent to high VOC content products. The commentators have not provided technical data supporting the contention that complying coatings will result in increased VOC emissions.
Two commentators on behalf of the same organization indicated that many coatings would be difficult to apply because of the dry time, composition and increased vulnerability to slight environmental changes. The Board disagrees that the level of difficulty of coating application and other factors will be adversely affected by the proposed VOC content limitations. Product literature supports this. When the complying products are used according to manufacturers' specifications, the user/consumer should not notice differences.
The same commentators indicated that the rulemaking would result in the elimination of small volume specialty coatings that are designed to meet special needs, such as antigraffiti coatings. The Board disagrees. Water-based, complying coatings are available in all of the categories for which standards are established in Table 1. Although some manufacturers may be required to reformulate products to meet the VOC content standards, the reformulations are feasible. For every category of coatings for which limits are established in Table 1, complying formulations are available. The VOC content limits in Table 1 have not been changed in the final-form rulemaking.
These commentators also indicated that the proposed rulemaking will result in the reduction of availability of colors for interior and exterior coatings and gloss levels. The Board disagrees. Coatings that meet the VOC content limits are available in all coating categories. The commentators have not provided data that indicates that a broad range of coating colors and sheens will not be available to meet the limits in Table 1. Information does indicate that complying products are available in interior and exterior finishes in a variety of gloss levels and a full range of colors.
One commentator indicated that the VOC content limits for interior wood sealers would result in inferior products and increased costs for consumers. The Board disagrees. A review of product data sheets indicates that there are latex sealers suitable for use on interior wood substrates, all of which would comply with the proposed VOC limit for primers, sealers and undercoaters. Compliance is technologically feasible through the use of water-based technology. The Board has not changed the VOC content limits for interior wood sealers in the final-form rulemaking.
One commentator indicated that the VOC content limit for semitransparent stains should be maintained at the current Federal limit of 550 grams per liter to assure that the level of performance of the materials is maintained. The Board disagrees. The commentator has provided no data showing that reducing the VOC content limit for semitransparent stains is not technologically feasible. The commentator has not provided data to the Department demonstrating that maintaining the VOC content limit for semitransparent stains is necessary to assure adequate performance for these materials. In the event that formulation of a specific product is determined to be technologically infeasible, the manufacturer may request a variance for the product under § 130.306.
One commentator questioned how low VOC content requirements might impact the quality of the products. Specifically, the commentator questions whether reformulation of products to meet the low VOC content might result in lower quality products that would require more frequent refinishing and, consequently, increased emissions. Based on product technical literature available for low VOC content products, the Department does not expect an increase in repainting as a result of the requirements. Manufacturer claims regarding the performance of the low VOC content materials generally indicate that the reformulated products perform as well as, or better than, high VOC content products.
A commentator supported the proposed rulemaking because it will result in reduction of VOC emissions and ground level ozone. In addition, the commentator indicated that the final-form rulemaking will reduce exposure of the citizens of this Commonwealth to hazardous air pollutants (HAP). The Board agrees that the emission reductions that will result from the VOC content limits will result in reduced exposure of the citizens of this Commonwealth to HAPs and unhealthly ground-level ozone.
Several commentators suggested that the Department adopt a revised Table of Standards for coatings and other regulatory provisions that the commentator believes would achieve approximately 70% of the reductions predicted by the Department to result from the proposed rulemaking. The Board agrees that the revised Table of Standards and other suggested revisions may result in emission reductions of approximately 70% of the VOC reductions predicted for the final-form rulemaking. However, this lower level of emission reductions would be inadequate to satisfy the emission reduction requirements necessary for this Commonwealth to achieve and maintain the health-based ozone air quality standards. Furthermore, compliant coatings are available and are currently being marketed which meet the proposed limitations. The Board has not revised the Table of Standards in the final-form rulemaking to incorporate the suggested limits.
Several commentators indicated that the Department has not considered the increased emissions that will result from increased painting required because of the reduced performance of complying coatings. The Board does not agree that there will be increased emissions resulting from the use of complying coatings. Surveys in California, where restrictive coating VOC requirements have been in place for several years, indicate no increase in per capita coating use resulting from the implementation of the low VOC requirements. Furthermore, product literature for complying coatings indicates that the materials exhibit exceptional durability and performance characteristics.
One commentator suggested that the proposed rulemaking is unreasonably stringent and unnecessary for the protection of the public health, welfare and safety. The Board does not agree that the proposed rulemaking is unreasonably stringent or unnecessary. The emission reductions that will result from the regulation are necessary to satisfy SIP commitments for achievement and maintenance of the health-based ozone National Ambient Air Quality Standard (NAAQS) in the southeast Pennsylvania ozone nonattainment area and for the achievement and maintenance of the 8-hour ozone NAAQS throughout this Commonwealth.
One commentator indicated that the record does not support the emission reduction claims of the proposed rulemaking and the proposed rulemaking is arbitrary and capricious. The Board disagrees. The emission reduction estimates for the rulemaking are based on an analysis conducted for the OTC by E. H. Pechan and reported in ''Control Measure Development Support Analysis of Ozone Transport Commission Model Rules'' (March 31, 2001). This analysis is based on the best available information regarding AIM coating use and formulation data available to the OTC member states regarding AIM coatings. The VOC content limits in the final-form rulemaking are based on CARB's extensive analysis of AIM coatings and reflect coating technologies that are available.
A commentator expressed concern that certain exceptions in the rulemaking could negatively impact the VOC emission reductions anticipated from the AIM program. The commentator indicated that the effectiveness of the final-form rulemaking would be enhanced if the exceptions in § 130.303(b) were to be eliminated. The Board disagrees. The exceptions to the most restrictive VOC content limits provided for in § 130.303 are necessary to allow the use of specialized coatings where high performance characteristics are important. These exceptions are retained in the final-form rulemaking.
Two commentators on behalf of the same organization suggested that the definition of ''nonflat high gloss coating'' should be revised. The Board disagrees. There is no functional distinction between the definition of ''nonflat high gloss coating'' in the proposed rulemaking and the language submitted by the commentator. The Board has not revised the definition in the final-form rulemaking.
Several commentators suggested that the definition of ''specialty primer'' should be revised to include wording that would include additional coatings in this category, including coatings used to ''. . . block odors or efflorescence . . .'' and coatings that are ''. . . recommended for application to exterior wood or wood-based surfaces, or for highly alkaline cement, plaster, and other cementitious surfaces.'' The suggested change would increase the number of coatings included under the term, including all coatings recommended for exterior wood applications. This would result in an increase in the allowable VOC content for exterior wood coatings from 100 g/l for flat coatings to 350 g/l; for nonflat coatings from 150 g/l to 350 g/l; and for nonflat high gloss coatings from 250 g/l to 350 g/l. The Board does not agree that all of the suggested changes to the definition are necessary. Complying coatings are available that perform the functions recommended by the commentators without changing the definition. Changing the definition as suggested by the commentators would allow a significant number of coatings available in low VOC formulations to be regulated at higher VOC content limits. This would result in fewer emission reductions from the rulemaking than predicted and would jeopardize achievement of the Commonwealth's necessary emission reductions. The Board has revised the definition in the final-form rulemaking by adding the phrase ''. . . or efflorescence . . .'' following ''. . . to block stains . . .'' in the first sentence.
Two commentators on behalf of the same organization suggested that the rulemaking be revised to include three additional specialty coatings categories: ''conversion varnish,'' ''thermoplastic rubber coatings'' and ''impacted immersion coatings.'' The Board agrees and has added definitions for these materials in § 130.302 and VOC content limits for these three specialty coatings categories in § 130.303 of the final-form rulemaking.
A number of commentators suggested the addition of definitions and product categories with VOC content limits for ''calcimine recoaters,'' ''conversion varnish,'' ''concrete surface retarders,'' ''impacted immersion coatings,'' ''nuclear coatings'' and ''thermoplastic rubber coatings.'' The Board agrees and has added the terms and definitions for these materials in § 130.302 and VOC content limits in § 130.303 to the final-form rulemaking.
One commentator suggested that the rulemaking should contain a coating definition and VOC content limit specifically for ''nuclear coatings.'' The commentator indicated that if coating reformulation is required to meet a VOC content limit lower than the Federal AIM limit, the cost of recertifying the coatings to meet Nuclear Regulatory Commission requirements would be prohibitive. The Board agrees that there should be a separate coating definition and limit for ''nuclear coatings'' consistent with the Federal requirements and has made these changes to the final-form rulemaking. The Board has added a definition of ''nuclear coatings'' to § 130.302 and has added a VOC content limit for these materials in § 130.303 of the final-form rulemaking.
One commentator indicated that the Department should develop a separate category of products to address concerns regarding professional applications. This category should contain products labeled as ''professional semi-transparent wood stain,'' ''professional varnish'' and ''professional sanding sealer.'' The commentator suggested that the materials should be labeled ''For Professional Use Only'' and that these ''professional'' coatings should be formulated at VOC content levels higher than those in the proposed rulemaking for the ''nonprofessional'' materials. The Board disagrees that the final-form rulemaking should contain special categories for ''professional'' AIM coating materials. There is no practical way to assure that these products would be sold only to ''professionals'' and no practical way to enforce sales only to ''professionals.'' Therefore, there is no assurance that any of the coatings in the product categories would be produced at ''nonprofessional'' coating VOC content compliance levels in Table 1 and there is no assurance that the Commonwealth would meet the required emission reductions. The Board has not added the coating categories and VOC content limits suggested by the commentator to the final-form rulemaking.
One commentator recommended that the Department revise the definition of ''low solids coating'' to include low solids content semitransparent stains that do not meet the proposed definition. Another commentator recommended that the definition be revised to include water-borne clear or semitransparent stain. The Board disagrees that the definition should be revised as suggested by the commentators. The changes suggested would lessen the stringency of the VOC content limitation requirements for semitransparent stains. This would reduce the emission reduction benefits of the final-form rulemaking and would jeopardize this Commonwealth's ability to meet emission reduction requirements necessary to achieve and maintain the ozone air quality standard. Semitransparent stain formulations that meet the limits in the final-form rulemaking are available in the market. The Board has not changed the definition in the final-form rulemaking. In the event that a manufacturer cannot formulate complying materials because of technological infeasibility, the manufacturer may apply for a variance under § 130.306 of the final-form rulemaking.
One commentator suggested that the Department should add a definition of ''shellac'' to the final-form rulemaking. The Board agrees. A definition of ''shellac,'' a regulated category of coatings, has been added to § 130.302.
Several commentators suggested that the Department include provisions in the final-form rulemaking regarding variances consistent with the provisions in the Commonwealth's recently promulgated consumer products rulemaking published at 32 Pa.B. 4824 (October 5, 2002). The commentators believe that these provisions are necessary to provide equity and fairness by granting the same regulatory flexibility provided for consumer products. The Board agrees that there may be situations where a person may not be able to comply with the coating VOC content requirements because of technological infeasibility. The Board has added variance provisions in §§ 130.306--130.310 in the final-form rulemaking to allow producers to apply for limited variances from VOC content requirements.
Several commentators suggested that the Department revise the rulemaking to include averaging provisions to allow coating manufacturers to utilize credits for coatings formulated below compliance levels to allow the marketing of coatings that do not comply with the regulatory limits. The Board disagrees that averaging provisions are necessary for manufacturers to achieve compliance with the VOC content requirements in the rulemaking. Complying coatings are available in each category for which VOC content limits are specified. An averaging provision is not necessary for manufacturers to comply with the proposed limits. One of the commentators who supports averaging indicates in the comments that an averaging provision ''. . . would have to ensure the availability of a sufficient amount of below compliance VOC product such that there would be no net increase in VOC emissions from his products as a whole.'' (Emphasis added.) The purpose of this final-form rulemaking is to assure VOC emission reductions, not to maintain the status quo as suggested by the commentator. In addition, adding averaging provisions to the final-form rulemaking can be extremely disadvantageous for coating manufacturers that have a limited product line with few coatings to use to generate credits for averaging. Coating manufacturers with a broad product line, especially those producing large volumes of those flat coatings that are easily formulated below the compliance levels, could generate a large quantity of credits to be used to avoid having to reformulate smaller volume coatings. This could be extremely disadvantageous for a smaller coating supplier with fewer product lines to average because the manufacturer would have to incur reformulating expenses. This competitive disadvantage could result in economic hardship and business failure of the smaller companies. The final-form rulemaking does not contain averaging provisions.
One commentator indicated that inclusion of an averaging provision in the consumer products rulemaking and not in the AIM rulemaking is arbitrary and capricious and places an unreasonable and unequal burden on the architectural coating industry. The Board disagrees. Unlike the AIM rulemaking, the consumer products rulemaking is technology-forcing. For this reason, it is appropriate to incorporate averaging provisions as a compliance option for consumer product manufacturers. The VOC content limits in the AIM rulemaking are not ''technology-forcing.'' Complying products are currently in the market for the regulated product categories. There is no need for averaging to meet the VOC content limits for AIM coatings. In the event that a manufacturer cannot formulate complying materials because of technological infeasibility, the manufacturer may apply for a variance under § 130.306 of the final-form rulemaking. The Board has not added averaging provisions to the final-form rulemaking.
One commentator questioned why the Department has not included in the rulemaking the averaging provisions and the variance provisions that are contained in the OTC model rule on which the rulemaking is based. The OTC model does contain provisions for averaging. The Board agrees that the OTC Model Rule does contain averaging provisions; however, the language of the OTC model rule regarding averaging provisions indicates that the averaging provisions ''. . . shall cease to be effective on January 1, 2005, after which averaging will no longer be allowed.'' The averaging provisions in the OTC model rule are intended to apply only if compliance with the low VOC content limits in the OTC model rule is required before January 1, 2005. The final-form rulemaking does not require compliance with the low VOC content limits until January 1, 2005, so the averaging provisions are not necessary. The Board has not included averaging provisions in the final-form rulemaking.
One commentator supported the proposed rulemaking ''as is'' without an averaging provision. The Board agrees that an averaging provision is not appropriate. The VOC content limits for the regulated coating categories are not ''technology-forcing.'' Coatings are presently being marketed at VOC content levels equal to or lower than the limits in the proposed rulemaking. The final-form rulemaking does not contain an averaging provision.
Two commentators on behalf of the same organization suggested that the Department include provisions in the final-form rulemaking regarding innovative technology consistent with the provisions in the Commonwealth's recently promulgated consumer products rulemaking. The commentators believe that these provisions are necessary to provide equity and fairness by granting the same regulatory flexibility that is provided for consumer products. The Board disagrees. The innovative technology provisions of Subchapter B (relating to consumer products) are necessary because the VOC content limitations for the products regulated in Subchapter B are technology-forcing requirements. The VOC content limitations in the proposed AIM requirements are not technology-forcing requirements. Products that meet the proposed VOC content limits for AIM coatings are presently available. The final-form rulemaking does not contain innovative technology provisions.
Several commentators indicated that the rulemaking should be revised to include a technology assessment provision to determine the appropriateness of the VOC limits in the rulemaking. The Board disagrees. Available information indicates that there are complying formulations available in each of the regulated categories. Based on the current availability of complying formulations, there is no need for future assessments unless plans are developed to implement additional coating VOC limitations. If these plans are developed, a technology assessment will be appropriate.
One commentator questioned whether the Department thought it necessary to have the information required in the annual report to the Department and the criteria that the Department will use to determine when the information will be requested. The reporting requirements in § 130.305 are necessary to provide the basis for the Department to monitor coating formulation and to determine the emission impacts of the AIM regulatory program. The Department is required periodically to prepare emission inventory data for use in the development of SIPs and tracking of SIP emission reduction commitments. The frequency of the data requests and the content of the reports will be determined based on the need and/or intended use of the reported information. Reporting requirements are retained in the final-form rulemaking.
One commentator suggested that the annual reporting requirements specified in § 130.305 would not provide an accurate database of bituminous roof primers used in this Commonwealth. The commentator stated that, for example, many who purchase these products in this Commonwealth are not direct end users, but distributors of private label accounts and that, therefore, manufacturers of these products would have no means of knowing how much of the products that they sell either inside or outside of this Commonwealth are used within this Commonwealth. The Board disagrees that manufacturers or producers will not be able to provide data regarding product sales in this Commonwealth. While there may be certain products for which it may be difficult to track sales, generally distribution and marketing systems can provide data with a level of quality for the Commonwealth to track product use and determine emissions. Section 130.305 have not been revised in response to this comment.
One commentator suggested that the reliance, by the Ozone Transport Region (OTR), on information developed by CARB regarding coating performance is not appropriate given the dissimilar climatic conditions in California and the northeast. The Board disagrees that the climatic conditions between the two areas are so dissimilar that use of CARB's data is inappropriate. Although there are areas in California where weather conditions are generally hot and dry, there are areas that experience temperature and precipitation conditions similar to those in the northeast.
Two commentators suggested that the reliance, by the OTR, on information developed by the CARB regarding coating availability and cost is not appropriate. The Board disagrees that it is inappropriate to use information developed by CARB regarding product availability and costs. Complying products developed for sale in the California market, which includes areas with weather conditions and product application and durability requirements similar to those in this Commonwealth, are suitable for use in this Commonwealth. The use of the cost data developed by CARB in assessing the economic impact of the SCM should not unrealistically represent the cost of compliance for this Commonwealth. In fact, the cost estimates for complying with the requirements in this Commonwealth may be lower than the costs estimated for meeting the limits proposed in the CARB SCM in California. Inasmuch as the limits in the CARB SCM will be implemented in the South Coast Air Quality Management District and numerous other jurisdictions in California in 2003, prior to the compliance deadline in this Commonwealth, much of the research and development work will have been completed and the costs absorbed, absent any requirements in this Commonwealth.
One commentator questioned how the cost data developed by CARB is applicable to this Commonwealth. The use of the cost data developed by CARB in assessing the economic impact of the SCM represents the upper bounds of the cost of compliance for this Commonwealth. In fact, the cost estimates for complying with the requirements in this Commonwealth may be lower than the costs estimated for meeting the limits proposed in the CARB SCM. Inasmuch as the limits in the CARB SCM will be implemented in the South Coast Air Quality Management District and approximately 18 other jurisdictions in California in 2003, much of the research and development work will have been completed and the costs absorbed prior to implementation of any requirements in this Commonwealth.
One commentator indicated that the economic analysis used in the development of the rulemaking is inaccurate. The commentator stated that it is not appropriate to use CARB's cost data to estimate costs for this Commonwealth's requirements because low coating VOC requirements have been in place in California for a number of years. The commentator suggested that the Commonwealth should conduct its own independent assessment of the compliance costs for the program. The Board disagrees. The cost data for the rulemaking is based on an analysis conducted for the OTC by E. H. Pechan and reported in ''Control Measure Development Support Analysis of Ozone Transport Commission Model Rules.'' This analysis is based on the best available information regarding costs available to the OTC member states regarding AIM coatings.
One commentator indicated that the Department should not rely on the results of the National Technical Systems (NTS) Study carried out in California to assess the performance of coatings. The commentator cites a number of differences between the NTS Study protocols and ''the generally accepted procedure,'' including the method of coating application and the size of the test panels. The Board agrees that there may be differences between the NTS Study protocols and evaluation methods used in other circumstances. However, the commentator has not provided information refuting the validity of the NTS Study. In fact, the protocols used for the NTS Study were agreed upon, in advance, by a group representing, among others, the coating industry.
A commentator indicated that the rulemaking should not include small manufacturer exemptions or delayed implementation dates for any manufacturers. The commentator indicated that the final-form rulemaking should provide a level playing field for all manufacturers. The Board agrees that there should not be small manufacturer exemptions or specific delayed implementation dates. The final-form rulemaking does, however, include a variance provision if a manufacturer can show that compliance by the January 1, 2005, deadline is not technologically feasible. The Board has not added provisions regarding small manufacturer exemptions or delayed implementation dates to the final-form rulemaking.
Several commentators indicated that the rulemaking should provide an indefinite ''sell-through'' provision for coatings manufactured prior to the compliance deadline and that requiring disposal of coating materials after 3 years, as would be required by the proposed rulemaking, is not environmentally acceptable. The Board agrees. The Board has revised § 130.303(c) to allow indefinitely after January 1, 2005, the sale and use of AIM material so long as the material was formulated in compliance at the time of its manufacture.
One commentator suggested that the sell-through provisions in § 130.303(c) should be revised to assure that parties do not stockpile large quantities of high VOC content coatings in advance of the compliance deadline. The Board disagrees that there will be significant ''stockpiling'' of high VOC content products. Maintenance of high levels of inventory would be expensive. In addition, many manufacturers indicate that the low VOC content formulations perform equally as well, or better, than high VOC content formulations, so there is no real incentive for obtaining significant inventories of high VOC content products.
Several commentators indicated that the rulemaking should provide for a technology assessment to confirm the technological feasibility of the VOC content limits in the rulemaking. The Board disagrees. A technology assessment is not necessary in the rulemaking. Complying formulations are currently available for all coating categories. If complying with the VOC content limits is technologically infeasible, the manufacturer may apply to the Department for a variance under § 130.306 of the final-form rulemaking. The Board has not revised the final-form rulemaking to include provisions for a technology assessment.
Several commentators suggested that the rulemaking should be revised to eliminate unnecessary and burdensome reporting requirements. The Board disagrees. The reporting requirements in the rulemaking are not burdensome. The requirements do not require ongoing reporting, but rather provide the authority for the Department to obtain information from coating manufacturers when necessary. The Board has not substantively revised the reporting requirements in the final-form rulemaking.
One commentator, an AIM coatings manufacturer, indicates that the rulemaking will have a significant adverse impact on the manufacturer and that the Department should use its discretionary authority to issue a rule that achieves substantial VOC emission reductions beyond the National AIM rule without causing serious adverse impact on potential sales of certain products. The Board added § 130.306 to the final-form rulemaking to provide the opportunity for a manufacturer to request a variance from the VOC content limits for products for which the manufacturer can show that compliance is technologically infeasible. By obtaining a variance, a manufacturer may continue to manufacture and market those products for which the manufacturer demonstrates that there are no viable alternatives.
A commentator indicated that the Department should consider adding provisions for a technology assessment to determine the appropriateness of maintaining future VOC limits. The Board disagrees. A technology assessment is not necessary in the final-form rulemaking. Complying formulations are currently available for all coating categories. If complying with the VOC content limits is technologically infeasible, the manufacturer may apply to the Department for a variance under § 130.306 of the final-form rulemaking.
One commentator indicated support for the VOC content requirements in the proposed rulemaking and indicated that the rulemaking provides adequate time (until January 1, 2005) for manufacturers to reformulate coatings to meet the VOC content limits. The Board appreciates the commentator's support and agrees that the time provided for achieving compliance should be adequate for manufacturers to reformulate coatings to compliance levels.
One commentator questioned how other states in the OTR regulate AIM coatings and if the Commonwealth's requirements are more restrictive than those in other states. Delaware has adopted a final AIM rulemaking. The Delaware rulemaking has been approved by the EPA as an SIP revision. The National Paint and Coating Association and several coating manufacturers appealed the rulemaking to the Delaware Environmental Appeals Board (DEAB). By a unanimous vote, the DEAB upheld the Delaware AIM rulemaking. As is the case with the Commonwealth, New York, Maryland and New Jersey are in the process of adopting AIM rulemakings with VOC content limits consistent with those in this final-form rulemaking and the final SIP-approved Delaware rulemaking. States outside of the OTR, other than California, have not developed additional AIM rulemakings.
The commentator questioned how the restriction of VOC content in coatings would affect businesses that utilize these products. The Board does not anticipate any significant adverse impacts on users of the complying formulations. The low VOC content limits may require that certain users change their work practices to use the reformulated coatings properly. However, these changes should not be significant. It is anticipated that the use of reformulated coatings may improve productivity because the shorter drying time for many water-based formulations will allow quicker recoating and less time at a job site or fewer return trips to the site for professional painters. Because of the lower VOC content of the coatings, workers and occupants of structures being painted will experience reduced exposure to hazardous pollutants and VOCs.
A commentator requested that, in addition to the commentator's testimony, summary of concerns and ''Recommended Changes to Proposed Rulemaking of the Environmental Quality Board [25 Pa. Code Ch. 130] Architectural and Industrial Maintenance Coatings [31 Pa.B. 6807],'' the Department ''consider the August 30, 2001, submission to Delaware concerning Delaware's proposed adoption of the OTC AIM Coatings Model Rule.'' The Department has reviewed and considered the commentator's submission to Delaware, which the Department understands to have been submitted to the Board as background material and not as official comments on this final-form rulemaking. The commentator makes most, if not all, of the same comments on this final-form rulemaking. Although the Department has reviewed and considered the comments on the Delaware rulemaking, the Department is not providing specific responses to them. The Department has provided specific responses throughout this Comment and Response document to the comments of the commentator that are submitted specifically on this final-form rulemaking.
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