Air Quality Laws and Consumer Products 10 Spray January 2016 Pressure Points Doug Fratz CSPa aerosol Products Division Staff executive The rules of the Game It has now been more than thirty years since aerosol and other consumer products were first considered for regulation to reduce emissions of volatile organic compounds (VOCs) that contribute to tropospheric (ground-level) ozone formation. In 1982, California’s Bay Area Air Quality Management District (AQMD) proposed including a ban on hydrocarbon propellants in aerosols in its air plan, and the South Coast AQMD soon began considering such measures in its plan as well. CSPA and the Personal Care Products Council—then named Chemical Specialties Manufacturers Association and Cosmetic Toiletry & Fragrance Association, respectively—were able to deter those early efforts by the AQMDs, but by 1988, it was clear that consumer product VOCs would be regulated in California. State and federal regulatory agencies can only develop regulations based on laws passed by their legislatures. Specific statutory provisions provide both authorization and mandates for the agency to adopt regulations and the limitations in that authority that protect regulated industries. For consumer product VOC regulations, the most relevant specific statutory authority is found in the California Health & Safety Code (H&SC) Section 41712 and the Federal Clean Air Act Section 183(e). These laws establish “the rules of the game” that we have been playing by almost 30 years as limits on consumer product VOC content has been adopted by the California Air Resources Board (CARB) and the U.S. Environmental Protection Agency (EPA). The basic mandates and limitations in California were negotiated by CSPA in 1988, and enhanced in the 1990s, working closely with influential California State Senator Byron Sher. The basic mandate for CARB is to “adopt regulations to achieve maximum feasible reduction in volatile organic compounds emitted by consumer products.” The basic protections for our consumer products that we obtained relating to those regulations are as follows: • Based on “adequate data” • “Commercially and technologically feasible” • “Necessary to attain state and federal ambient air quality standards” • Not “require elimination of a product form” • No differing district regulation • Three-year sell-through Each of these provisions has been essential to working through the past 25+ years of CARB regulations. Without the “adequate data” provision, the feasibility of proposed limits could have been presumptive agency judgments. Without the product form protection, aerosol products could have been targeted for elimination. Without District preemption, South Coast or other districts could have adopted infeasible VOC limits. The threeyear sell-through provision has prevented costly product recalls. Although the “necessity” provision has not played a major role yet, it is the only “endgame” provision I believe could one day stop further “maximum feasible reduction” of consumer product VOCs. In 1989, Congress began a major revision of the federal air law that resulted in the Clean Air Act of 1990 and Section 183(e) of the very broadly-defined category of Consumer or Commercial Products. During two intense years of negotiations, CSPA was able to negotiate provisions that resulted in work throughout the 1990s that established the first broad national VOC emissions inventory (of which our consumer products are just one small part). Section 183(e) also was the first recognition that relative photochemical reactivity was an essential consideration in ozone control strategies, and mandated comprehensive studies that put our consumer product VOCs in a proper perspective and the EPA National Consumer Products Rule finalized in 1998, which prevented numerous states from developing their own regulations. We were not able to get national preemption of states—that was already politically infeasible, especially with ozone being considered a local issue—but we did get a state consultation requirement. Elsewhere in the Act, the Ozone Transport Commission (OTC) was formed, which CSPA would help to develop a series of model rules starting in 2001 that have played an essential role in keeping subsequent state consumer product VOC regulations consistent and feasible. Both of these seminal air quality laws on consumer products remain on the books today. The retirement of Senator Sher in 2004 and the increasingly partisan nature of the California legislature have deterred our attempts to further clarify and strengthen our statutory protections. It has indeed been a major challenge just to maintain the protections we have. The Clean Air Act of 1990 has never been reopened or updated, despite a quarter century of major improvements in air quality science and ozone attainment strategies. It appears that the rules of the air quality game may be with us for some years to come. Air quality science has indeed progressed, even if the politics have not. In a future column I will explain how the science has evolved, and why I believe that the “necessity” provision we obtained at the outset might end up being our most important protection against endless VOC regulations. Correction In the December 2015 edition of Pressure Points, the “industry coalition” that worked on the EPA Ozone Standard was led by the National Association of Manufacturers (NAM), not the National Aerosol Association (NAA). This coalition included CSPA and dozens of other major manufacturing trade associations. The NAA led a separate coalition that visited Washington, DC to address the EPA Ozone Standard. We apologize for any confusion. -Editorial Director Spray
Spray January 2016
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