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Consumer Products Regulation Enforcement Discretion

Under 6 NYCRR Part 235, the New York State Department of Environmental Conservation (Department) regulates the use of volatile organic compounds (VOCs) as solvents and propellants in a number of consumer products. The primary goal of the regulation is to reduce emissions of VOCs which react in the atmosphere to form ozone and other photochemical oxidants at ground level ("smog"). This goal is achieved through setting maximum limits on the weight percentage of VOCs in household and institutional products such as air freshener, antiperspirant, furniture polish, hairspray, paint remover, shaving cream, etc.

The regulation, 6 NYCRR Part 235, was modified recently to reduce many of the maximum limits and place new limits on additional product categories. These changes went into effect on January 1, 2005. To meet these new limits and similar limits in several other states, many companies reformulated their aerosol products with a hydrofluorocarbon propellant known as HFC-152a. This propellant has been determined by USEPA to not participate in the atmospheric reactions causing ground-level ozone pollution. Thus, it can be used as a propellant in place of the VOCs that were formerly used.

The Department has received reports that both major sources for this propellant, a Dupont facility in Texas and another supplier in China, have had operating problems over the past several months. These problems, along with the increased demand for 152a, have caused a temporary nationwide shortage of the propellant. If current demand stays at its present level, Dupont estimates that the shortage will continue into the summer resulting in shortages of the many products using 152a as a propellant. Shutdowns of certain consumer product manufacturing lines have already started to occur due to 152aís unavailability.

The Department has determined that the limited exercise of enforcement discretion for 6 NYCRR Part 235 will help limit the disruption to this sector of the economy. It will also speed the recovery of normal stocks of 152a by lowering short-term demand. Since the typical season for ozone pollution problems is summertime when the sunís rays are strongest, the Department intends to resume normal enforcement of the rule for products manufactured on or after May 1, 2005. Furthermore, enforcement discretion will only be extended to consumer product manufacturers that follow certain procedures.

In order to apply to the Department to exercise its enforcement discretion concerning the VOC limits in 6 NYCRR Part 235, manufacturers must provide the following information to the Department, within two weeks of the publication of this notice: a list of the products affected by the 152a shortage; product category within Part 235; product VOC content for both the compliant and replacement products; preliminary estimates of product volume intended for distribution in New York State; and the resulting increase in VOC emissions. These estimates must be followed on or before June 30, 2005, by reports with final estimates of actual product distribution to New York State and the resulting increase in VOC emissions.

For questions or comments, please contact the Enforcement Section at the NYS Department of Environmental Conservation, Division of Air Resources, 625 Broadway, 2nd Floor, Albany, NY 12233-3254, by calling 518-402-8403.