BISPHENOL-A REMOVED FROM PROPOSITION 65 BY JUDICIAL INJUNCTION

California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) requires product manufacturers and sellers to provide a warning prior to potentially exposing a buyer or consumer to any product that contains a Prop. 65-listed chemical. A warning is required for a product that contains a listed chemical unless the manufacturer or seller can show that the exposure poses no significant risk assuming lifetime exposure at the level in question for cancer causing substances or will have no observable effect assuming exposure at 1,000 times the level in question for substances causing reproductive toxicity. Further, in any action regarding an alleged failure to give a required warning the burden is on the defendant business to show that a warning was not required under these criteria.

The state’s Office of Environmental Health Hazard Assessment (OEHHA) announced its intent to list Bisphenol-A (BPA), under Prop 65 in January. The chemical is used in polycarbonate plastics and epoxy resins. In March, the American Chemistry Council filed a lawsuit, American Chemistry Council v Office of Environmental Health Hazard Assessment, et al., to block the listing, arguing that it is scientifically unjustified. Although the case is pending a final outcome, in April of this year, a California judge granted a preliminary injunction in the American Chemistry Council’s case. The removal of BPA from the list was effective immediately.
As a result of the injunction, OEHHA has said it is withdrawing its proposal for setting “safe harbour levels” for BPA. That effort would have determined if products must carry a label warning consumers that a product could expose them to more than the maximum allowable dose level (MADL). Should BPA end up back on the list of possible carcinogens and reproductive toxicants, labelling requirements would go into effect one year after listing.

RECENT CHANGES TO SCAQMD PERMIT EXEMPTIONS & REGISTRATION

South Coast Air Quality Management District (SCAQMD) Rule 219 — Equipment Not Requiring A Written Permit– provides certain equipment, processes and operations that emit small amounts of air contaminants, an exemption from permitting requirements. The agency recently added additional equipment to the exemptions in the rule, which included:

• Aerosol can recycling systems;
• Carpet shearing machines and associated controls;
• Charbroilers for non-commercial multi-family residential use;
• Cosmetic filling stations and related filling equipment;
• Laser cutting, etching and engraving equipment and associated controls; and
• Control devices (subject to some limitations) associated with printing and coating equipment.

Rule 222 — Filing Requirements for Specific Emission Sources Not Requiring A Written Permit– provides an alternative to SCAQMD written permits by allowing sources to register instead of obtaining a written permit. The registration procedure is less prescriptive than the permitting process. The newly revised Rule 222 includes the transition of the following equipment and processes permitting program to the Rule 222 filing program:

• Asphalt day tankers
• Asphalt pavement heaters used for road maintenance and new road construction
• Diesel fueled boilers, 2,000,000 Btu per hour or less
• Food ovens, 2,000,000 Btu per hour or less
• Fuel cells and associated heating equipment
• Portable diesel fueled heaters, 250,000 Btu per hour or less
• Power pressure washers and hot water steam washers and cleaners, 550,000 Btu per hour or less
• Tar Pots (AKA Tar Kettles)
• Internal combustion engines used exclusively for electrical generation at remote two-way radio transmission towers
• Micro-turbines, 3,500,000 Btu per hour or less
• Storage of odorants for natural gas, propane, or oil with a holding capacity of less than 950 liters (251 gallons) and associated transfer and control equipment

NEW REQUIREMENTS FOR ARCHITECTURAL COATINGS & FEES

Rule 1113 — Architectural Coatings — was originally adopted by the SCAQMD on September 2, 1977 to regulate the Volatile Organic Compound (VOC) emissions from the application of architectural coatings and has since undergone numerous amendments.
The last amendment on June 3, 2011, referred to as the small container exemption (SCE), requires effective January 1, 2014, coatings sold in one liter or smaller containers to comply with all other provisions of the rule, other than the VOC limits. Hence, all other rule requirements, including labeling requirements will apply to coatings sold in all container sizes.
Manufacturers expressed concern with labeling very small containers such as the small sample-sized containers (2 ounces or less) and stains sold in the shape of a pen comprised of about 1/3 of an ounce of product. The proposed amendments are intended to address those concerns and exempt coatings sold in containers 2 ounces or smaller from the labeling requirements in subparagraphs (d) (1), (2) and (3). The proposed amendments will also remove outdated rule language and clarify certain provisions. The proposed amendments to Rule 1113 will:

• Add a definition for Multi-Component Coatings
• Clarify that the VOC limits on Colorants in the Table of Standards 2 applies to colorants added to architectural or industrial maintenance coatings
• Clarify that the Sell-Through provision, subparagraph (c) (4), only applies to the Table of Standards 1
• Clarify that the provisions regarding empty containers [subparagraph (c) (5)], and Group II exempt compounds [subparagraph (c) (8)] also apply to colorants
• Clarify that Rules 1143 and 1171 apply to solvent cleaning involving architectural coatings
• Exempt containers having capacities of two ounces or less from the labeling requirements in subparagraphs (d) (1), (2) and (3)
• Clarify that the VOC content displayed on the container for multi-component coatings should be the VOC as recommended for use
• Fix a grammatical error in the definitions for Architectural Coatings and Reactive Penetrating Sealers

Rule 314 –Fees for Architectural Coatings– affects about 200 architectural coatings manufacturers. Beginning in 2009 and each subsequent calendar year, Rule 314 requires architectural coatings manufacturers to report to SCAQMD the total annual quantity (in gallons) and emissions of each of their architectural products distributed or sold into or within the SCAQMD for use in the SCAQMD during the previous calendar year. Fees are assessed on the manufacturers’ reported annual quantity of architectural coatings as well as the cumulative VOC emissions from the reported annual quantity of coatings.
When the rule was first adopted, manufacturers requested the ability to report numerous products on one line, also referred to as “grouping.” Citing difficulty with compliance verification, staff is now proposing to remove the ability to use “grouping,” exempt small manufacturers, and clarify certain rule provisions including:

• Adding private labelers in the Applicability section
• Amending definitions
• Removing the ability to group products
• Clarifying the reporting requirements for multi-component coatings and coatings sold as concentrates
• Adding a reporting requirement to identify products sold under the 4,000 foot exemption
• Requiring “Big Box” retailers to submit their annual reports to the District as well as the manufacturers
• Updating the fee rate and removing the outdated rates
• Requiring manufacturers to pay the fee rate in effect for the year in which they are reporting and not the fee rate that was in effect when the sales and emissions actually occurred
• Clarifying that once the distributors list has been submitted, only changes need to be submitted for subsequent years
• Adding a fee exemption for architectural coatings containing 5 or less grams of VOC per liter of material and for sale of recycled coatings to “further encourage the development, marketing, and use of lower-VOC and recycled coatings”

OPEN BURNING REGULATION CAUSES CONTROVERSY

Recently, the SCAQMD proposed changes to their rules 445 –Wood Burning Devices– and Rule 444 –Open Burning–. Rule 445 adopted amendments lower the threshold for a wintertime wood burning curtailment, establish criteria for a basin-wide curtailment and set standards for solid-fuel labeling for wood and wood-based products by commercial firewood sellers. Additionally, Rule 444 now incorporates the winter season burn restriction consistent with Rule 445.

Part of the original Rule 444 proposal included banning beach bonfires. The provision to prohibit open burning at beach areas has generated significant comments on either side of the issue. Some have expressed support for the proposal due to odor and health effects from wood smoke while the majority has stated that staff has not backed up the proposal with science and the regulation is unnecessary as emissions from beach burning are very minor. Several cities voiced strong opposition and believe the rule is not needed. At the public hearing in July, a number of parties urged a policy that allows cities to decide for themselves whether beach fires should be allowed. Local governments and businesses in communities with beach fire rings are anticipating a loss of revenue from a reduction in beach fees and product sales. The issue was extracted from the original rule proposal and was heard separately at a special board meeting. The board approved the staff proposal in a 7 to 6 vote.

RULE 1144 – METALWORKING FLUID & DIRECT CONTACT LUBRICANT REPORTS

SCAQMD Rule 1144 applies to fluids that either:

1. Evaporate off shortly after use (vanishing oils) or
2. Serve to inhibit or prevent corrosion of metal (metal protectants/rust inhibitors) or
3. Are used during metalworking and/or metal forming operations (metalworking fluids).

These fluids are typically used at steel tube and spring manufacturers, steel mills, aerospace manufacturers, automobile part manufacturers and rebuilders, as well as machine shops.

The exemption for the VOC content of consumer products used as metalworking fluids or direct contact lubricants at industrial facilities expired on January 1, 2011. Manufacturers and distributors of metal working fluids sold into the South Coast AQMD to industrial facilities for manufacturing purposes must submit an Annual Quantity and Emission Report (AQER) for product sales in 2012. The report must include the annual sales volume and VOC content of metalworking fluids and direct-contact lubricants. The report was due April 1, 2013.

AMENDMENTS TO RULE 1309– ERC AND SHORT TERM CREDITS (STC)

In 2002, SCAQMD amended Rule 1309 to provide for Short Term Credits (STCs) and at the same time provide for the reissuance of such credits that had been provided as offsets but never used. Short Term Credits (STCs) could be created from stationary, area, or mobile source reductions, and would be issued in one-year increments. However, the source was required to provide at least five years’ worth of STCs in order to obtain a Permit to Construct, and the permit would have to be conditioned to restrict operations to the number of years of STCs provided. STCs issued from stationary source reductions were to be issued in yearly increments for the first seven years and as a permanent credit thereafter.

The expectation was that holders of STCs might be more willing to sell all or part of the first seven years of the STCs, knowing that they would still retain a permanent credit thereafter, rather than “hoarding” ERCs which they did not immediately need, but thought they might need in the future. The STC provisions were only able to be used, however, if they were generated from State Implementation Plan (SIP) approved rules. EPA has never approved any of the provisions relating to STCs into the SIP. There is currently no mechanism for the reissuance or return of ERCs that have been submitted as offsets but never used. The proposed amendment would allow the reissuance of unused ERCs provided the request is made within two years of issuance of the Permit to Construct and construction has not commenced.