State Consumer Products VOC Regulations Update

environment

Background

 

The Ozone Transport Commission (OTC), which is comprised of all the New England states, has adopted a series of model rules, including a model rule for consumer products. The OTC’s model rules for consumer products contain mass-based standards for several categories of adhesives, adhesive removers, caulking compounds, paint thinners, and multi-purpose solvents. ACA’s Consumer Products Committee has diligently participated in the OTC’s model rulemaking processes since the mid-1990’s. After adoption of the initial model rule by OTC, ACA began monitoring the actions of the individual Northeastern states seeking to adopt their own rules to make sure they adopted acceptable versions of the OTC’s model rule.

The OTC model rule has been amended five times, though, always with the goal of trying to harmonize with the latest standards adopted by the California Air Resources Board (CARB). Northeastern states try to keep up with California and OTC amendments, but it’s difficult to do so because California has moved rapidly to update to more stringent standards. The reality is that each of the OTC states cannot adopt rules at the same pace that California or the OTC can. Thus, states in the OTC region have been adopting the most recent OTC model rule available at the time of their rulemaking. However, it’s possible that the model rule they are adopting has already been amended by the time the state has completed its rulemaking process. Consequently, the states that have adopted consumer products regulations have VOC standards for certain categories that are not consistent across the OTC region.

This issue is also compounded by the U.S. Environmental Protection Agency (EPA), who continues to ignore the progress made by California and other state environmental agencies and still has not published proposed amendments or updates to its national consumer products regulation. Consequently, states have completely lost interest in waiting for EPA to act and almost all OTC states, many LADCO states, and some states out West have adopted some version of the OTC model rule.

To date, the following states have adopted a consumer products regulation: California; Connecticut; Colorado; the District of Columbia; Delaware; Illinois; Indiana; Maine; Maryland; Massachusetts; Michigan; New Hampshire; New Jersey; New York; Ohio; Pennsylvania; Rhode Island; Utah; and Virginia.

 

 

 

 

ACA Action

In June 2018, OTC finalized the Phase V Model Rule for Consumer Products. The updates to OTC’s model rule were based on, and consistent with, CARB’s 2015 Consumer Products Rule. ACA participated extensively in this rulemaking process, expressing concern that this update would further complicate the inconsistency issues in consumer products rules across the OTC region. Despite ACA’s advocacy efforts, OTC formally adopted the Phase V Model Rule for Consumer Products in November 2018.

Prior to the 2018 update, OTC last amended its Model Rule for Consumer Products in 2012/2013 (OTC Phase IV Model Rule for Consumer Products). Delaware and New Hampshire both updated their consumer products rules to align with the OTC Phase IV Model Rule in 2017, Connecticut and Maryland updated their consumer products rules to align with the OTC Phase IV Model Rule in 2018, Rhode Island updated its consumer products rule to align with the OTC Phase IV Model Rule in 2019, and New York adopted amendments to its consumer products rule in 2021.

So, there are six states in the OTC region that are following the OTC Phase IV Model Rule for Consumer Products (DE, NH, CT, MD, RI, and NY), six states that are currently following the OTC Phase II/III Model Rule for Consumer Products (DC, ME, MA, NJ, PA, and VA), and one state that has not adopted any version of OTC’s model rule at all (VT follows U.S. EPA national rule). Consequently, there are three different consumer products rules in effect in states throughout the OTC region right now. This inconsistency in consumer products rules across the OTC region causes compliance issues for paint and coatings manufacturers in the Northeast.

Moreover, now that OTC has formally adopted the Phase V Model Rule for Consumer Products, states in the OTC region may choose to adopt this new model rule which will cause even more inconsistency. Unfortunately, the end result will be three or four different consumer products regulations in effect throughout the OTC region that industry would have to comply with.

In 2023, the New Jersey Department of Environmental Protection (NJ DEP) initiated work on amendments to its consumer products rule. NJ DEP plans to align its consumer products rule with the OTC Phase IV Model Rule, but no formal proposal has been issued yet. Nevertheless, ACA submitted comments in support of the agency’s intent to adopt amendments consistent with the OTC Phase IV Model Rule. ACA also requested reasonable compliance dates, exemptions, and sell-through provisions. ACA will continue to monitor this rulemaking and advocate for consistency in consumer products rules throughout the OTC region.

In Nevada, the Clark County Department of Environment & Sustainability (DES) is developing a consumer products rule. Clark County DES intends to adopt standards and requirements similar to the OTC Phase IV Model Rule for Consumer Products. ACA submitted three sets of comments to Clark County DES. In its comments, ACA urged the department to incorporate language consistent with the OTC model rule. ACA also spotted several inconsistencies between Clark County’s proposed rule and the OTC model rule, including errors with definitions, the sell-through provision, and labeling requirements. In addition, ACA urged Clark County DES to include a reasonable compliance date. ACA will continue to monitor this rulemaking activity and advocate for reasonable standards and requirements for industry. ACA expects a formal proposal to be issued for public comment in 2024.

Lastly, Oregon’s Department of Environmental Quality (DEQ) informed ACA that they are in the early stages of developing VOC rulemakings for coatings, including consumer products. ACA and DEQ held a preliminary and informal meeting in January 2024 to discuss this effort. During the meeting, DEQ indicated that a rule for consumer products will be considered. ACA encouraged alignment with the OTC Model Rule, and DEQ seemed receptive to the idea. The rulemaking advisory committee (RAC) is expected to be established in Spring 2024. ACA is included on the RAC, and a formal proposal is expected after it is established.

ACA will continue to monitor OTC states, LADCO states, California, Nevada, Oregon, and other states across the country for new consumer products rules or amendments (including possible rules in WA, NM, and ID). As always, ACA will update the Consumer Products Committee with any new developments. ACA will also update its Consumer Products VOC Map as states begin to release final consumer products rules and amendments. The map and other VOC regulatory resources can be found on ACA’s website.

ACA Staff

Rhett Cash
Counsel, Government Affairs