ENVIRONMENTAL PROTECTION

OFFICE OF AIR QUALITY MANAGEMENT

AIR QUALITY REGULATION PROGRAM

Air Pollution Control

Prevention of Air Pollution from Consumer Products

Proposed Amendments: N.J.A.C. 7:27-24.1 through 24.7; and 7:27A-3.10

Proposed New Rules: N.J.A.C. 7:27-24.8 through 24.12

Authorized By: Bradley M. Campbell, Commissioner, Department of Environmental Protection.

Authority: N.J.S.A. 13:1B-3(e), 13:1D-9 and 26:2C-1 et seq., in particular 26:2C-8

Calendar reference: See Summary below for explanation of exception to calendar requirement.

DEP Docket Number:

Proposal Number: PRN 2003-

A public hearing concerning this proposal will be held on:

Thursday, November 13, at 1:30 P.M. at:

New Jersey Department of Environmental Protection

Hearing Room, 1^st First Floor

401 East State Street

Trenton, New Jersey 08625

Directions to the hearing room may be found at the Department's website address http://www.state.nj.us/dep/where.htm.

Submit written comments by [60 days after publication], to:

Alice Previte, Esq.

Attention: DEP Docket No.

New Jersey Department of Environmental Protection

Office of Legal Affairs

PO Box 402

Trenton, N.J. 08625-0402

Written comments may also be submitted at the public hearing. It is requested (but not required) that anyone submitting written comments also include a diskette containing an electronic version, preferably in Word, of the written comments with the submission. Also, it is requested (but not required) that anyone submitting oral testimony at the public hearing provide a copy of any prepared text to the stenographer at the hearing.

The proposed amendments will become operative 60 days after adoption (See N.J.S.A. 26:2C-8).

Interested persons may obtain a copy of the proposal through the following methods:

1. The proposal may be downloaded electronically from the Department's Office of Air Quality Management's web site at http://www.state.nj.us/dep/aqm.

2. The proposal may be requested from the Department by e-mailing Diane.Hutchings@dep.state.nj.us, or by telephoning (609) 292-6722.

• The proposal may be inspected during normal office hours at the Department's Public Information Center at 401 E. State in Trenton, or at one of the Department's Regional Enforcement Offices at the following locations:

Central Regional Office: Metropolitan Region:

Horizon Center 2 Babcock Place

Route 130, Bldg. 300 West Orange, NJ

Robbinsville, NJ 08625-0407 07052-5504

Northern Region: Southern Region:

1259 Route 46 East, Bldg. 2 One Port Center

Parsippany, NJ 07054-4191 2 Riverside Drive, Suite 201

Camden, NJ 08103

• The proposal may be inspected at one of the following public libraries:

Trenton Public Library Atlantic City Public Library

120 Academy Street 1 North Tennessee Avenue

Trenton, NJ 08608 Atlantic City, NJ 08401

Newark Public Library Alexander Library

5 Washington Street Rutgers University

Newark, NJ 07102-0630 169 College Avenue

New Brunswick, NJ 08901

Camden Free Public Library New Brunswick Free Public

418 Federal Street Library

Camden, NJ 08103 60 Livingston Avenue

New Brunswick, NJ 08901

Joint Free Public Library Burlington City Library

Morrison and Morris County 23 West Union Street

1 Miller Road Burlington, NJ 08016

Morrison, NJ 07960

Perth Amboy Public Library Freehold Public Library

193 Jefferson Street 28 ½ East Main Street

Perth Amboy, NJ 08861 Freehold, NJ 07728

Toms River Public Library Somerville Public Library

101 Washington Street 35 W. End Avenue

Toms River, NJ 08753 Somerville, NJ 08876

Penns Grove/Carney's Point Public Burlington County Library

Library Association Pioneer Blvd. and Woodlane Road

222 SouthBroad Street Mt. Holly, NJ 08060

Penns Grove, NJ 08069

The agency proposal follows:

Summary

The Department of Environmental Protection (the Department) is proposing new rules

and amendments at N.J.A.C. 7:27-24. N.J.A.C. 7:27-24 contains standards which control the emissions of volatile organic compounds (VOCs) and toxics from consumer products and establishes requirements that apply to persons who are manufacturers, distributors, suppliers and retailers of consumer products. The Department is also proposing related amendments at N.J.A.C. 7:27A-3.10, Air Administrative Procedures and Penalties.

These proposed new rules and amendments apply to certain chemically formulated consumer products (CFCPs) that have VOCs in their formulation such as hair spray, insecticides, and cleaners; and portable fuel containers (PFCs), from which VOCs may be emitted when gasoline or other fuels are poured into or out of the container or stored in the container.

Since the Department has provided a 60 day comment period on this proposal, the proposal is excepted from the rulemaking calender requirements pursuant to N.J.A.C. 1:30-3.3(a)5.

Purpose of Rule

The intent of this rulemaking is to reduce VOC emissions, which are ozone precursors, to assist in the attainment of the one-hour ozone National Ambient Air Quality Standard (NAAQS) and the eight-hour ozone health standard; to address the VOC emission reduction shortfall identified by the United States Environmental Protection Agency (USEPA); and to implement the Department's State Implementation Plan for Ozone (Ozone SIP) commitment to the USEPA. The proposed amendments will also help reduce fine particulates and potentially reduce toxics, that are also VOCs or formed from VOCs.

Ozone is a highly reactive gas formed in the lower atmosphere or troposphere from chemical reactions involving VOCs in the presence of sunlight. At elevated concentrations, it causes a variety of adverse human health effects as well as damage to crops and materials.

The health based NAAQS for ozone was established by the Federal Clean Air Act, 42 U.S.C. §§7401-7671q. Since New Jersey encompasses areas that do not meet the health based NAAQS for ozone, New Jersey was required by the Clean Air Act to prepare and submit to the USEPA for approval an Ozone SIP, which sets forth the measures New Jersey will undertake to bring its air quality into attainment with the one-hour averaged ozone standard.

On August 31, 1998, New Jersey submitted to the USEPA a revision to its Ozone SIP in which the State demonstrated the measures it would adopt or utilize to attain the health based ozone NAAQS. This revision was entitled "Attainment and Maintenance of the Ozone

National Ambient Air Quality Standards-Meeting the Requirements of the Alternative Ozone Attainment Demonstration Policy." As part of its review of New Jersey's submittal, the USEPA examined the uncertainties in the projections contained therein and determined that New Jersey (and other states) would need to commit to implementing even further VOC and oxides of nitrogen (NOx) emission reductions to be able to more conclusively predict that attainment of the one-hour ozone NAAQS would be achieved. On December 16, 1999, the USEPA published a notice in the Federal Register (64 Fed. Reg. 70380) in which it proposed approval of New Jersey's Ozone SIP submittal, contingent upon New Jersey's committing to adopt and submit additional measures to secure additional reductions. The USEPA similarly found that a number of other states as well, including Connecticut, New York, Pennsylvania, Delaware and Maryland, had emission reduction shortfalls in their Ozone SIP submittals.

In a December 16, 1999, Federal Register Notice, the USEPA indicated that it believed it was appropriate for states in the Ozone Transport Region (OTR) to develop regional strategies to meet the need for additional emission reductions. The OTR was created by the 1990 amendments to the Federal Clean Air Act and includes states, including New Jersey, in the northeast and mid-Atlantic areas. The Ozone Transport Commission (OTC), an organization whose membership included the governors or their representatives and air program directors of the 13 jurisdictions within the OTR, was established with the mission, in part, to undertake the development of recommended control measures which can be applied within the OTR to make progress toward attaining the NAAQS for ozone. Since six OTC member states had been found by the USEPA to have shortfalls in their Ozone SIP commitments, the OTC members agreed to work together regionally to develop strategies which states could use to obtain additional emission reductions. This agreement was formally set forth in a "Memorandum of

Understanding Among the Ozone Transport Commission Regarding the Development of Specific Control Measures to Support Attainment and Maintenance of the Ozone National Ambient Air Quality Standards (MOU)," which was approved by the OTC on June 1, 2000. Subsequently the OTC developed model rules for six control measures (five VOC measures and one NOx measure). These model rules may be found on the Ozone Transport Commission's website at: http://www.sso.org/otc/Publications/pub2.htm.

On April 26, 2000, New Jersey submitted a revision to its Ozone SIP to the USEPA, in which it committed to proposing new rules and/or amendments to address the VOC and NOx emission reduction shortfall. On October 8, 2001, New Jersey submitted a revision to its Ozone SIP, reaffirming its commitment and providing a list of the six OTC model rules and the anticipated emission reductions from the rules. This SIP revision was approved by the USEPA on February 4, 2002. The new rules and amendments proposed herein encompass two of the six OTC model rules (Model Rule for Consumer Products and Model Rule for Portable Fuel Container Spillage Control). The Department intends to address the other four measures separately in other rule proposals. Rule amendments based on two of the model rules (Model Rule for Mobile Equipment Repair and Refinishing and Model Rule for Solvent Cleaning Operations) were recently adopted. See 35 N.J.R. 2509, June 2, 2003. Rule amendments based on one model rule (Model Rule for Architectural and Industrial Maintenance Coatings) was recently proposed. See 35 N.J.R. 2983, July 21, 2003. Rule amendments based on the final model rule (Model Rule for Additional Nitrogen Oxides Control Measures) are planned to be proposed this year.

The OTC workgroup that developed the consumer product and portable fuel container model rules, in which New Jersey was an active participant, had several meetings that included stakeholders and workgroup members. Interested and affected parties were also able to review drafts of the OTC model rule documents via the Internet and submit written or oral comments to the OTC and designated OTC workgroup staff.

The OTC states relied on the experience, research and technical expertise of the California Air Resources Board (CARB) in drafting their model rules for CFCPs and PFCs. The OTC CFCP and PFC model rules are based on CARB rules. Several OTC states, including New Jersey, New York, Massachusetts, and Rhode Island, have existing CFCP rules that were adopted before the USEPA Federal Consumer Products rule was adopted in 1998. All states are subject to the USEPA Federal Consumer Products rule. Delaware, New York and Pennsylvania have adopted consumer products rules based on the OTC model rules for CFCPs and PFCs. Maryland has adopted a PFC rule, and is developing a CFCP rule based on the OTC models.

Chemically Formulated Consumer Products

The Department's existing and proposed rules for CFCPs, as well as the Federal rule for consumer products (40 CFR § § 59.401 to 59.413), regulate products such as hair sprays, insecticides, general purpose and glass cleaners, air fresheners, adhesives, automotive polishes, antiperspirants and deodorants. The CFCP rules control emissions by establishing limits on the VOC content of the products. The proposed amendments contain as stringent or more stringent VOC content limits than New Jersey's existing rules and the Federal rule.

The proposed rules and amendments for CFCPs would primarily impact manufacturers (including any person who hires another person to manufacture a product for them for compensation). In order to comply with the rules, manufacturers may have to reformulate some of their products in order to meet the new rule requirements or refrain from selling them in New Jersey for use in New Jersey. Distributors, suppliers and retailers will need to ensure proper distribution and sale of the products.

Two related rules currently apply regarding CFCPs in New Jersey, the Department's rules at N.J.A.C. 7:27-24 and the Federal rule at 40 CFR § § 59.201 to 59.214. The rules proposed herein are as stringent or more stringent than either of these. The existing Department rules became effective in November 1995 (the VOC limits became effective in April 1996) and regulate 23 product categories. The Federal rules became effective in September 1998 and regulate 25 product categories. The Federal rules regulate automotive windshield washer fluids and charcoal lighter materials, while the existing New Jersey rules do not. Over half of the emissions in the consumer products VOC emission inventory (as defined by the USEPA) were not regulated by the existing New Jersey rules or Federal rules.

As discussed above, these proposed amendments are based on the OTC model rule for CFCPs, which in turn is based on the CARB rules and background data. The technical basis for the proposed VOC content limits lies within the framework that the CARB developed for its consumer products rules. Significant technical documentation was developed as part of the CARB process. The CARB VOC limits and data were reviewed for applicability in New Jersey and the rest of the OTR. As a result, the proposed CFCP rules and amendments include most, but not all, of the product categories regulated in California. Some of the proposed VOC limits have an effective date later than in California. To maximize consistency and uniformity of the products, most VOC limits, definitions, exemptions and flexibility options in the proposed rules and amendments are the same as those used in California.

The proposed rules and amendments regulate 45 consumer product categories. Twenty-one of these categories are not included in the Federal rules. Fourteen categories have more stringent limits than the Federal rules. Products manufactured after January 1, 2005, must comply with the proposed VOC limits. Products manufactured prior to January 1, 2005, which do not meet the new VOC limits, can continue to be sold in New Jersey if they comply with the rules in effect at the time they were manufactured and if they display the date or date-code on which they were manufactured. Some of the more stringent limits are currently in effect in California, while others have future effective dates.

The proposed rules and amendments also prohibit the use of methylene chloride, perchloroethylene or trichloroethylene in aerosol adhesives manufactured or sold after January 1, 2005. This provision is in both the California consumer products regulation and the OTC model rule. These compounds are hazardous air pollutants (substances listed in Clean Air Act Title III, Sec. 112(b)), toxic substances (substances listed at N.J.A.C. 7:27-17.3 Table 1), toxic air contaminants (TACs, as shown in the CARB Health and Safety Code) and probable human carcinogens. CARB defines a TAC as "...an air pollutant which may cause or contribute to an increase in mortality or serious illness, or which may pose a hazard to human health." CARB's analysis (in the April 7, 2000 CARB Staff Report: Initial Statement of Reasons for the Proposed Amendments to the California Consumer Products Regulation Relating to Aerosol Adhesives) concluded that these compounds are used in small amounts in aerosol adhesives, that there are alternative formulations available, and that eliminating these compounds in aerosol adhesives would reduce the overall exposure to and risk from these compounds.

Portable Fuel Containers

The OTC model rule for PFCs is also based on CARB rules and background data. The proposed rules for PFCs would primarily impact manufacturers. Manufacturers may have to redesign some of their products in order to meet the new rules' requirements or refrain from selling them in New Jersey for use in New Jersey. Distributors, suppliers and retailers will need to ensure proper distribution and sale of the products.

Currently there are no regulations regarding PFCs in New Jersey. Fuel stored in PFCs are a significant source of air pollution emissions in the United States. Pollutants are emitted from PFCs in five ways: (1) permeation emissions, that is, fuel molecules that escape through the wall of the PFC; (2) diurnal emissions, that is, stored fuel molecules that escape to the air through any opening of the PFC; (3) transport-spillage emissions, that is, fuel vapors produced from any accidental discharge of a fuel while the fuel is being transported to another destination; (4) spillage emissions, that is, fuel vapors produced when fuel is being distributed from a container to another source; and (5) refueling-vapor displacement emissions, that is, fuel vapors that escape when any fuel tank or fuel container is being refueled from a PFC.

The proposed rules require that PFCs and/or spouts must be equipped with an automatic shut-off device that stops fuel flow before the fuel tank overflows, and an automatic device that closes and seals the PFC when it is removed from the fuel tank. There are also other required design specifications, all of which are intended to significantly lessen the possibility of fuel spillage and reduce emissions (e.g., requiring a permeation rate). Manufacturers of PFCs and spouts must comply with the proposed rules by January 1, 2005. PFCs and spouts manufactured prior to this date, which do not comply with the rules, may be sold until January 1, 2006 if they display the date or date-code on which they were manufactured.

The Department proposes to change the title of N.J.A.C. 7:27-24 from "Control and Prohibition of Volatile Organic Compounds from Consumer and Commercial Products" to "Prevention of Air Pollution from Consumer Products." The Department proposes to replace "control and prohibition" with "prevention" to be consistent with the title of N.J.A.C. 7:27-23. The Department proposes to replace "volatile organic compounds" with "air pollution" because these proposed rules herein include requirements for toxics that are not VOCs. The Department proposes to remove "commercial" to be consistent with the way CARB and USEPA titles their rules.

N.J.A.C. 7:27-24.1 Definitions

The Department is proposing to add definitions of 90 new terms based on the OTC model rule for consumer products. These new terms are used in the proposed rules to regulate additional categories and subcategories of consumer products. The definition of the new term "chemically formulated consumer product category" replaces the current term "product category" to clarify that these categories refer to chemically formulated consumer products and not to portable fuel containers and spouts. The term "product category" is being deleted. The definition of the new term "low vapor pressure VOC" or "LVP-VOC" is partly taken from the existing rule at N.J.A.C. 7:27-24.2(f). The new term "supplier" includes suppliers located in or outside of New Jersey.

The other 87 new terms are the following: "ACP agreement," "adhesive," "adhesive remover," "aerosol adhesive," "alternative control plan (ACP)," "antimicrobial hand or body cleaner or soap," "architectural coating," "astringent/toner," "automotive brake cleaner," "automotive engine compartment adhesive," "automotive hard paste wax," "automotive headliner adhesive," "automotive instant detailer," "automotive rubbing or polishing compound," "automotive wax, polish, sealant or glaze," "automotive windshield washer fluid," "bug and tar remover," "carpet and upholstery cleaner," "charcoal lighter material," "colorant," "date-code," "disinfectant," "distributor," "dry cleaning fluid," "electronic cleaner," "establishment," "facial cleaner or soap," "fat wood," "FDA," "flexible vinyl," "flexible vinyl adhesive," "floor seam sealer," "floor wax stripper," "fuel," "general purpose degreaser," "general-use hand or body cleaner or soap," "hair shine," "heavy-duty hand cleaner or soap," "herbicide," "hospital or medical disinfectant," "house dust mite," "house dust mite product," "insecticide fogger," "institutional product," "institutional use," "laminate repair/edgebanding adhesive," "lubricant," "medicated astringent/medicated toner," "medium volatility organic compound," "metal polish/cleanser," "mist spray adhesive," "mounting adhesive," "multi-purpose dry lubricant," "multi-purpose lubricant," "multi-purpose solvent," "non-aerosol product," "non-carbon containing compound," "non-selective terrestrial herbicide," "paint," "paint remover or stripper," "penetrant," "polyolefin adhesive," "polystyrene foam adhesive," "plasticizer," "product brand name," "product line," "roll-on product," "rubber and vinyl protectant," "rubbing alcohol," "sealant and caulking compound," "semisolid," "silicone based multi-purpose lubricant," "South Coast Air Quality Management District Rule," "special purpose spray adhesive," "spot remover," "stick product," "terrestrial," "tire sealant and inflation," "type A propellant," "type B propellant," "type C propellant," "undercoating," "usage directions," "variance," "VOC-containing product," "waterproofer," and "web spray adhesive."

The Department is proposing to amend 49 existing definitions to clarify them and to make them consistent with the OTC consumer products model rule definitions. The definition of "consumer product" is proposed to be amended to include portable fuel containers, architectural coatings, and any associated packaging. Even though architectural coatings are included under the definition of consumer products, architectural coatings are regulated by N.J.A.C. 7:27-23 not by N.J.A.C. 7:27-24. Also, the proposed definition of the term "consumer product" clarifies that those consumer products regulated by Subchapter 24 include those consumer products which are used by persons who provide a service. This service may be for compensation or not (for example, cleaning services, maids, community volunteer workers). The definition of "household product" is proposed to be reorganized and to exclude a product used primarily in the maintenance or operation of an establishment. The definition of "innovative product exemption" is proposed to be reorganized, expanded to include portable fuel containers, spouts, and portable fuel containers and spouts, and expanded to include air pollution control agencies of other states as issuing agencies. The definition of "manufacturer" is proposed to be amended to include any person for whom a product is manufactured, or who distributes the product, if identified on the product label, and any person that hires another person to manufacture a product. A manufacturer may be located in or outside of New Jersey. The definition of "packaging" is proposed to also define "package" and its definition is proposed to be amended so it would apply to portable fuel containers and spouts as well as to chemically formulated consumer products. "Package" or "packaging" includes a product's container.

The other 44 terms proposed to be amended are the following: "aerosol product," "agricultural use," "air freshener," "all other forms," "antiperspirant," "bathroom and tile cleaner," "carburetor or fuel-injection air intake cleaner," "construction, panel, and floor covering adhesive," "consumer," "contact adhesive," "cooking spray," "crawling bug insecticide," "deodorant," "device," "dusting aid," "engine degreaser," "fabric protectant," "floor polish or wax," "flying bug insecticide," "fragrance," "furniture maintenance product," "gel," "general purpose adhesive," "general purpose cleaner," "glass cleaner," "hair mousse," "hair spray," "hair styling gel," " 'high volatility organic compound' or 'HVOC,' " "insecticide," "laundry prewash," "laundry starch product," "liquid," " nail polish remover," "nonresilient flooring," "oven cleaner," "pesticide," "principal display panel or panels," "restricted materials," "shaving cream," "spray buff product," "structural waterproof adhesive," "volatile organic compound," and "wasp and hornet insecticide." The Department changed 19 of these terms to make them consistent with the OTC Model Rule definitions and in some cases by also removing the term "consumer." The Department changed 25 other terms by removing the term "consumer," by making minor grammatical or organizational changes, or by correcting a typographical error.

The Department is proposing to delete the term "container" because its definition in the existing rules is identical to the definition of "packaging." Also, the Department is proposing to delete the term "household adhesive" to be consistent with the terms and chemically formulated consumer product categories in the OTC Model Rule.

The Department is proposing to add definitions of 14 new terms based on the OTC draft model rule "Portable Fuel Container Spillage Control." These terms are used in the proposed rules to regulate emissions from portable fuel containers. The 14 terms are the following: "distributor," "nominal capacity," "outboard engine," "permeation," "portable fuel container," "portable fuel container product category," "representative code," "retail outlet," "retailer," "safety can," "spill-proof spout," "spill-proof system," "spout," and "target fuel tank." The term "distributor" includes distributors located in or outside of New Jersey.

N.J.A.C. 7:27-24.2 Applicability

Existing N.J.A.C. 7:27-24.2(a) is proposed to be amended to modify Subchapter 24 applicability to include any person who sells, offers for sale, holds for sale, distributes, supplies, or manufactures for sale in New Jersey regulated consumer products. N.J.A.C. 7:27-24.2(a) is also amended to specify that the consumer product must be for use in New Jersey. The product's use could be by a consumer or by a person in the performance of a service. The service could be for a fee or may be voluntary and is intended to include, but not be limited to, persons employed in cleaning businesses or who perform volunteer work. The manufacturer, distributor, and retailer would be regulated, but not the citizens using the product.

Existing N.J.A.C. 7:27-24.2(b)1 is proposed to be amended and recodified as N.J.A.C. 7:27-24.2(f), and existing N.J.A.C. 7:27-24.2(b)2 through 5 are proposed to be amended and recodified as N.J.A.C. 7:27-24.2(d)2 through 5.

Proposed new N.J.A.C. 7:27-24.2(b) lists the two types of consumer products that will be regulated under amended Subchapter 24. The first type is chemically formulated consumer products included in any of the categories listed in proposed Table 1 at N.J.A.C. 7:27-24.4(a). The second type is a portable fuel container and spout, whether sold separately or together.

Existing N.J.A.C. 7:27-24.2(c) is proposed to be deleted.

Proposed new N.J.A.C. 7:27-24.2(c) identifies a group of chemically formulated consumer products for which manufacturers are required to maintain records, but not register, label, meet the proposed Table 1 VOC content limits, or maintain shipping documentation. These chemically formulated consumer products are those that are not included in any of the Table 1 categories but that contain greater than five percent by weight VOC having a vapor pressure or sum of partial pressures of organic substances equal to or greater than 0.02 pounds per square inch, absolute. The applicable record keeping rules are at proposed N.J.A.C. 7:27-24.6. The provisions being proposed at new N.J.A.C. 7:27-24.2(c) are currently found at N.J.A.C. 7:27-23.6(b). The Department has separately proposed to amend Subchapter 23, "Prevention of Air Pollution from Architectural Coatings and Consumer Products." That proposal, among other things, limits the scope of Subchapter 23 to architectural coatings, and therefore will delete the provisions at N.J.A.C. 7:27-23.6(b) being proposed herein to be included at N.J.A.C. 7:27-24.2(c).

Existing N.J.A.C. 7:27-24.2(d) regarding innovative product exemptions is proposed to be amended and recodified at proposed N.J.A.C. 7:27-24.4(i) and (j).

Proposed new N.J.A.C. 7:27-24.2(d) lists the chemically formulated consumer products that are exempt from Subchapter 24. The exempt products are: architectural coatings, certain bait station insecticides, certain air fresheners and insecticides, certain adhesives, certain sealants and caulking compounds, and all hospital and medical disinfectants.

Existing N.J.A.C. 7:27-24.2(e) regarding variances is proposed to be amended and recodified at proposed N.J.A.C. 7:27-24.4(i) and (j).

Proposed new N.J.A.C. 7:27-24.2(e) lists the types of portable fuel containers that are exempt from Subchapter 24.

Existing N.J.A.C. 7:27-24.2(f) is proposed to be deleted.

Proposed new N.J.A.C. 7:27-24.2(f), is re-codified with modifications and new provisions from existing N.J.A.C. 7:27-24.2(b)1. Proposed new N.J.A.C. 7:27-24.2(f) exempts from the VOC content limits at N.J.A.C. 7:27-24.4(a) and the design standards at N.J.A.C. 7:27-24.8 consumer products that are manufactured in New Jersey or sold in New Jersey by a manufacturer or distributor so long as the consumer products are destined for sale and use outside of New Jersey. Consumer products marketed in New Jersey by retailers are not exempt from the VOC content limits and design standards. The Department's intent is to prohibit consumer products that do not comply with the VOC content limits or design standards from being sold and subsequently used in New Jersey. The amended rule requires manufacturers and distributors to take reasonably prudent precautions to ensure that noncompliant consumer products are not sold, offered for sale, held for sale, or otherwise supplied to New Jersey retailers or consumers. The rule prohibits manufacturers and distributors from selling, offering for sale, holding for sale, or otherwise supplying noncompliant consumer products to New Jersey retailers, and from knowingly enabling another person to do so.

Existing N.J.A.C. 7:27-24.2(g), which pertains to labeling consumer products registered under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), is proposed to be recodified at N.J.A.C. 7:27-24.5(f)3 with revisions.

Proposed new N.J.A.C. 7:27-24.2(g) lists the conditions under which a manufacturer may avoid liability in the event that one of the non-compliant consumer products it manufactures for use exclusively outside of New Jersey is sold in New Jersey.

Proposed new N.J.A.C. 7:27-24.2(h) lists the conditions under which a retailer may avoid liability in the event that he/she sells, offers for sale, or holds for sale in New Jersey a consumer product that violates the VOC content limits at N.J.A.C. 7:27-24.4(a) in the case of a chemically formulated consumer product or the design standards at N.J.A.C. 7:27-24.8(a) and (b) in the case of a PFC and/or spout. The retailer may avoid liability if the retailer can demonstrate compliance with N.J.A.C. 7:27-24.4(a) or N.J.A.C. 7:27-24.8(a) and (b), as applicable, by providing written communication, written agreements, or use of invoices, purchase orders and other contractual and billing documents which state that the retailer only accepts complying products or that the distributor or supplier will only deliver complying products.

N.J.A.C. 7:27-24.3 General provisions

Proposed new N.J.A.C. 7:27-24.3 applies to both CFCPs and PFCs, the two types of consumer products regulated under Subchapter 24.

Existing N.J.A.C. 7:27-24.3(a), which contains the table of current VOC content limits, is proposed to be modified and re-codified at proposed N.J.A.C. 7:27-24.4(a). Proposed new N.J.A.C. 7:27-24.3(a) requires a manufacturer, distributor, or retailer to meet all other applicable laws and regulations, even if that manufacturer, distributor, or retailer meets the requirements of Subchapter 24.

Existing N.J.A.C. 7:27-24.3(b), which pertains to pre-use dilution instructions, is proposed to be modified and re-codified at proposed N.J.A.C. 7:27-24.4(b). Proposed N.J.A.C. 7:27-24.3(b) is modified and re-codified from existing N.J.A.C. 7:27-24.4(f), and requires a person to identify from whom a product was obtained and to make shipping documentation available to the Department upon the Department's request.

Existing N.J.A.C. 7:27-24.3(c), which pertains to products registered under FIFRA, is proposed to be modified and re-codified at proposed N.J.A.C. 7:27-24.4(c). Proposed N.J.A.C. 7:27-24.3(c), is modified and re-codified from existing N.J.A.C. 7:27-24.4(g), and establishes the procedure for asserting that information submitted to the Department is confidential.

Proposed new N.J.A.C. 7:27-24.3(d) states the Department's mailing address to which persons must send paper submittals.

Proposed new N.J.A.C. 7:27-24.3(e) requires manufacturers and distributors to state on the shipping documentation for consumer products shipped for sale in New Jersey that the products are compliant. Manufacturers, distributors and retailers must keep this documentation for five years and make it available to the Department upon request. As noted previously, manufacturers of CFCPs subject to N.J.A.C. 7:27-24.2(c) are exempt from this requirement.

Proposed new N.J.A.C. 7:27-24.3(f) requires any person who submits any document, other than a registration or re-registration, to the Department to certify that document in accordance with the certification requirements at N.J.A.C. 7:27-1.39 "Certification of information."

Proposed new N.J.A.C. 7:27-24.3(g) requires the Department, when it sends a written request for information, to specify in the request the information to be reported, and it gives the Department the option of specifying, in the request, the format in which the information should be reported.

N.J.A.C. 7:27-24.4 Chemically formulated consumer products: Standards

The provisions of existing N.J.A.C. 7:27-24.4 "Administrative requirements" are proposed to be recodified as explained below.

Proposed N.J.A.C. 7:27-24.4 is recodified from existing N.J.A.C. 7:27-24.3 with modifications and new provisions.

Existing N.J.A.C. 7:27-24.4(a), which pertains to registration, is being modified and re-codified at proposed N.J.A.C. 7:27-24.5(a).

Proposed N.J.A.C. 7:27-24.4(a) is recodified with modifications from existing N.J.A.C. 7:27-24.3(a). Table 1 sets forth the existing VOC content limits for the CFCP categories regulated under Subchapter 24. Table 1 lists the existing State VOC content limits that became operative on April 30, 1996, and the proposed State VOC content limits that will become operative on January 1, 2005 under this proposal. The table "VOC Content Limits for Chemically Formulated Consumer Products" below includes the current and proposed New Jersey VOC content limits as well as the existing Federal VOC content limits for ease of comparison. Also for ease of seeing the proposed category and limit changes, the table below is formatted similar to the proposed rule text and Table 1, with brackets indicating deletions and boldface (and underlined) text indicating additions. Where a Federal limit and a State limit both apply to a product category, the most stringent limit is the applicable limit. If the EPA promulgates in the future a limit that is more stringent than a State limit, the more stringent Federal limit will be the applicable limit in New Jersey. The proposed State limits are as stringent or more stringent than the existing Federal limits.

In existing Subchapter 24, Table 1 lists 23 consumer product categories. In the proposed rule at Table 1, the VOC content limits for five of the 23 existing consumer product categories remain the same. These five categories are "bathroom and tile cleaners," "hair styling gels," "laundry prewash," "laundry starch products," and shaving creams." The remaining 18 of the 23 existing consumer product categories are proposed to be amended in some way, such as addition of a new subcategory, a change in the name of a category or subcategory, or a more stringent VOC content limit. One important change in category name is that the "household adhesives" category is changed to "adhesives." Also, the proposed rule at Table 1 adds 22 new CFCP categories. Thus, the total number of CFCP categories is increased from 23 to 45. The most significant change is in the VOC content limits. Considering both categories and product forms, the number of regulated VOC content limits is increased from 41 to 89. These 89 VOC content limits will become operative on January 1, 2005, and supersede the existing State standards that became operative April 30, 1996. Of these 89 VOC content limits, 26 are more stringent than the existing VOC content limits, 27 are unchanged, and 36 VOC content limits are for newly added categories or subcategories. Also, of the 89 categories or subcategories of VOC content limits, three have been regulated under the Federal rule but not under the existing State rules. These three categories or subcategories, as listed in Table 1, are automotive windshield washer fluids, charcoal lighter material and structural waterproof adhesives.

VOC CONTENT LIMITS FOR CHEMICALLY FORMULATED CONSUMER PRODUCTS