Additional Time for Compliance with VOC standards for Aerosol Spray Paints

          November 7, 2008, EPA promulgated a direct final rule (i.e., no proposed rule) amending the 40 CFR Part 59, Subpart E for the National Volatile Organic Compound Emission Standards for Aerosol Coatings, which establishes volatile organic compound (VOC) emission standards for the aerosol coatings category (aerosol spray paints) under the Clean Air Act (73 FR 66184-66187).  40 CFR Part 59 is the National VOC Emission Standards for Consumer and Commercial Products. In this direct final action, EPA is moving the applicability and compliance dates for aerosol coatings from January 1, 2009, to July 1, 2009. EPA is also making initial notifications required due on the compliance date, as opposed to 90 days in advance of the compliance date. This direct final rule takes effect December 29, 2008 without further notice, unless EPA receives adverse comment by December 8, 2008 (EPA also promulgated a proposal the same date for the purpose of taking the comment).

         EPA found these two time extensions necessary to allow EPA time to add compounds and applicable reactivity factors that are currently used in aerosol coatings, but were not included on the list in the regulations. The extensions also allow regulated entities sufficient time to develop initial notification reports based on revised tables; and, in the case of making initial notifications due on the compliance date, make the aerosol coatings rule consistent with the requirements of other part 59 rules, increasing consistency and clarity for the regulated entities.

          Section 59.511(j) anticipated that there may be some compounds that aerosol coating manufacturers are currently using, or intend to use, that were not included in Table 2 of the final rule. Section 59.511(j) allowed for regulated entities to petition EPA to add such compounds to the list. EPA received such petitions, but has not been able to finalize the additions to the list with sufficient time to allow manufacturers to certify compliance based on the deadlines in the final rule. Delaying the compliance date and the date when initial notifications are due will allow EPA time to finalize the additions to the list through appropriate public notice and comment procedures, and allow regulated entities sufficient time to prepare initial notification reports, and review and certify their compliance with the limits based on the revised tables.

This article was authored by Barbara D. Little, Jackson Kelly PLLC. For more information on the author see here.