Consumer and Commercial Products: Schedule for Regulation

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of revisions to the list of product categories scheduled for regulation under section 183(e) of the Clean Air Act (CAA).

SUMMARY:

This notice modifies the section 183(e) list and schedule for regulation by adding one category and removing one category of consumer and commercial products. By this action, EPA is listing portable fuel containers (PFCs) for regulation and removing petroleum dry cleaning solvents from the list of product categories for regulation.

DATES:

This action is effective on May 16, 2006.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. OAR-2004-0386 (legacy docket No. A-94-65). All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available in hard copy form. Publicly available docket materials are available either through http://www.regulations.gov or in hard copy at the HQ Docket Center for public inspection and copying between 8:30 a.m. and 4:30 p.m., Monday through Friday, excluding legal holidays. The docket is located at: U.S. EPA, Air and Radiation Docket and Information Center (6102T), 1301 Constitution Avenue, NW., Room B-102, Washington, DC 20460, or by calling (202) 566-1744 or 1742. A reasonable fee may be charged for copying docket materials.

FOR FURTHER INFORMATION CONTACT:

Mr. Bruce Moore, EPA, Office of Air Quality Planning and Standards, Sector Policies and Programs Division, Natural Resources and Commerce Group (E143-03), Research Triangle Park, NC 27711, telephone number (919) 541-5460, facsimile number (919) 541-3470, electronic mail address: moore.bruce@epa.gov.

SUPPLEMENTARY INFORMATION:

World Wide Web (WWW). In addition to being available in the docket, an electronic copy of this action will also be available on the WWW through the Technology Transfer Network (TTN). Following signature, a copy of the action will be posted on the TTN policy and guidance page for newly proposed or promulgated rules at http://www.epa.gov/ttn/oarpg . The TTN provides information and technology exchange in various areas of air pollution control.

Outline. The information presented in this notice is organized as follows:

I. What is the CAA section 183(e) list?

II. Why is EPA revising the list and schedule for regulation?

III. What criteria were considered in EPA's decision to add PFC to the list and schedule for regulation?

IV. What was the result of the ranking exercise for the PFC product category?

V. Which category is EPA removing from the schedule for regulation?

VI. What portion of the 1990 CAA section 183(e) baseline does the schedule for regulation address?

VII. Statutory and Executive Order Reviews

I. What is the CAA section 183(e) list?

Ground-level ozone, which is a major component of smog, is formed in the atmosphere by reactions of volatile organic compounds (VOC) and oxides of nitrogen in the presence of sunlight. The formation of ground-level ozone is a complex process that is affected by many variables.

Exposure to ground-level ozone is associated with a wide variety of human health effects, agricultural crop loss, and damage to forests and ecosystems. Acute health effects are induced by short-term exposures (observed at concentrations as low as 0.12 parts per million (ppm)), generally while individuals are engaged in moderate or heavy exertion, and by prolonged exposures to ozone (observed at concentrations as low as 0.08 ppm), typically while individuals are engaged in moderate exertion. Moderate exertion levels are more frequently experienced by individuals than heavy exertion levels. The acute health effects include respiratory symptoms, effects on exercise performance, increased airway responsiveness, increased susceptibility to respiratory infection, increased hospital admissions and emergency room visits, and pulmonary inflammation. Groups at increased risk of experiencing such effects include active children, outdoor workers, and others who regularly engage in outdoor activities, as well as those with preexisting respiratory disease. Currently available information also suggests that long-term exposures to ozone may cause chronic health effects (e.g., structural damage to lung tissue and accelerated decline in baseline lung function).

Under section 183(e) of the CAA, EPA conducted a study of VOC emissions from the use of consumer and commercial products to assess their potential to contribute to levels of ozone that violate the national ambient air quality standards (NAAQS) for ozone, and to establish criteria for regulating VOC emissions from these products. Section 183(e) of the CAA directs EPA to list for regulation those categories of products that account for at least 80 percent of the VOC emissions, on a reactivity-adjusted basis, from consumer and commercial products in areas that violate the NAAQS for ozone (i.e., ozone nonattainment areas), and to divide the list of categories to be regulated into four groups.

EPA published the original list of product categories and the original schedule that established the four groups of categories in the Federal Register on March 23, 1995 (60 FR 15264). EPA noted in that notice that EPA may amend the list of products for regulation, and the groups of product categories, in order to achieve an effective regulatory program in accordance with the Agency's discretion under CAA section 183(e). EPA published a revised schedule and grouping on March 18, 1999 (64 FR 13422). EPA again revised the list to regroup the product categories for purposes of workload management on November 17, 2005 (70 FR 69759). For more background information, please refer to the previous notices relating to the development of the initial list and schedule and subsequent changes.

Since the beginning of the CAA section 183(e) program, EPA has noted that the inclusion of a product category on the list of products for potential regulation is not the final action by the Agency on this decision, and that the Agency will make the final determination in conjunction with development of regulations that affect the product category.

Similarly, this listing exercise is not the Agency's final determination that PFC should be regulated, or of the appropriate method for their regulation, under CAA section 183(e). EPA has proposed to regulate PFC under CAA section 183(e) as part of a proposed rule regarding emissions from the use of gasoline, passenger vehicles, and PFC. See, “Control of Hazardous Air Pollutants from Mobile Sources,” 71 FR 15804 (March 29, 2006), known as the mobile sources air toxics (MSAT) rule. Interested parties may comment upon or challenge the inclusion of the product category in the CAA section 183(e) program in comments in that proceeding. See, 71 FR 15984 (“EPA will afford interested persons the opportunity to comment on the data underlying the listing before taking final action” on this proposal). The final determination to regulate PFC under CAA section 183(e) will be made in conjunction with EPA's proposal for the MSAT rule. EPA encourages all interested parties to review that proposal and to comment upon EPA's proposed regulation of PFC under CAA section 183(e) in that rulemaking action.

II. Why is EPA revising the list and schedule for regulation?

By this action, EPA is adding the product category “portable fuel containers” to the CAA section 183(e) list and schedule for regulation and removing the category “petroleum dry cleaning solvents” from the CAA section 183(e) list.

The PFC category includes portable liquid fuel containers and does not apply to containers holding non-liquid fuels (for example, propane). EPA has determined that PFC fall within the definition of “consumer and commercial product” found in CAA section 183(e) and that it is appropriate to consider this category for regulation under CAA section 183(e) in order to achieve VOC emission reductions.

Section 183(e)(1)(B) of the CAA defines the term “consumer and commercial product” to mean: “any substance, product (including paints, coatings, and solvents), or article (including any container or packaging) held by any person, the use, consumption, storage, disposal, destruction, or decomposition of which may result in the release of volatile organic compounds. The term does not include fuels or fuel additives regulated under section 211, or motor vehicles, non-road vehicles, and non-road engines as defined under section 216 of this title.” Accordingly, the statutory definition of consumer and commercial products includes a much broader array of products than those usually considered to be consumer products (e.g., personal care products, household cleaning products, household pesticides, etc.). The statutory definition of consumer and commercial products encompasses all VOC-emitting products used in or around the home, by businesses, by institutions, and in a wide range of industrial manufacturing operations. We note that PFC are not excluded by the references to “fuels and fuel additives regulated under CAA section 211” because the cans themselves are “containers” as contemplated in CAA section 183(e) and because regulation of the cans themselves will not affect the fuels or fuel additives within the containers.

Although EPA did not identify PFC as a category of consumer and commercial products at the time of the initial product listing, information now available to EPA indicates that these products, in the aggregate, are a significant source of VOC emissions. People use PFC to refuel a wide variety of equipment. Their most frequent use is for refueling lawn and garden equipment such as lawn mowers, trimmers, and chainsaws. They are also routinely used for recreational equipment such as all-terrain vehicles and snowmobiles, and for passenger vehicles which have run out of fuel. About 95 percent of PFC are made of plastic (high density polyethylene). There are approximately 20 million PFC sold annually, and about 80 million PFC are in use nationwide. The average lifetime of a PFC is about 5 years.

Gasoline fuels are highly volatile and evaporate easily from containers that are not sealed or closed properly. Although an individual PFC is a relatively modest emission source, the aggregate VOC emissions from PFC are quite significant. We estimate that nationwide VOC emissions from PFC were about 287,000 tons per year (tpy) (about 261,000 megagrams per year) in 1990 (the CAA section 183(e) baseline year). Current emissions are estimated to be about 315,000 tpy (about 286,000 megagrams per year), which is about 5 percent of the nationwide mobile source VOC emissions inventory. Left uncontrolled, a single PFC's evaporative emissions, in grams of VOC per day, are up to 60 times the VOC emissions of a new Tier 2 vehicle evaporative control system. PFC emissions are primarily of three types: Evaporative emissions from unsealed or open containers; permeation emissions from fuel passing through the walls of the plastic containers; and evaporative emissions from fuel spillage during use.

As a result of the significant aggregate VOC emissions from PFC, EPA has concluded that it is appropriate to consider PFC for regulation under CAA section 183(e) to achieve needed VOC emission reductions. Accordingly, the Agency is revising the list of consumer and commercial products to include the category.

When EPA issued the original CAA section 183(e) list, EPA selected product categories that would account for approximately 80 percent of the VOC emissions in ozone nonattainment areas in the base year. Removal of the petroleum dry cleaning solvents category from the list, in combination with the addition of the PFC category, will maintain a list that accounts for approximately 80 percent of VOC emissions in ozone nonattainment areas in the base year.

III. What criteria were considered in EPA's decision to add PFC to the list and schedule for regulation?

EPA has followed the same process it used for the original listing exercise to evaluate whether to add PFC to the list at this time. In establishing criteria for regulating products, CAA section 183(e)(2)(B) directs the Administrator to consider the following factors:

(1) Uses, benefits, and commercial demand,

(2) Health and safety functions,

(3) Products which emit highly reactive VOC,

(4) Cost-effectiveness of control, and

(5) Availability of alternatives.

Based on the five statutory factors, EPA developed the following eight criteria for ranking consumer and commercial products:

(1) Utility,

(2) Commercial demand,

(3) Health and safety functions,

(4) Emissions of highly reactive VOC,

(5) Availability of alternatives,

(6) Cost-effectiveness of controls,

(7) Magnitude of annual VOC emissions, and

(8) Regulatory efficiency and program considerations.

The first statutory factor is evaluated using two criteria. Criterion 1 (Utility) considers uses and benefits of the product, and Criterion 2 (Commercial Demand) evaluates commercial demand for the product. The remaining four statutory factors are addressed individually by Criteria 3 through 6. Criteria 7 and 8 (magnitude of emissions and regulatory efficiency) reflect additional considerations not specifically prescribed in the CAA. EPA has exercised its discretion to include these criteria, as EPA believes they are important in prioritizing product categories for regulation. Criteria 1 through 7 were developed such that each product category could be evaluated numerically by assigning a score of 1 to 5 for each of the criteria, with a higher score indicating a higher priority for regulation. A complete discussion of the criteria is contained in Chapter 4 of “Study of Volatile Organic Compounds from Consumer and Commercial Products—Report to Congress,” EPA-453/R-94-066-A, March 1995. A copy of the full Report to Congress is in the docket. Furthermore, a copy of Chapter 4 is also included in the Technical Support Document (TSD) for this action.

IV. What was the result of the ranking exercise for the PFC product category?

EPA used 1990 emission estimates and other information on PFC in evaluating the product category to maintain consistency with the process used to form the initial list. Application of the criteria indicated that PFC ranked highly compared to the categories considered in the original listing exercise. A detailed discussion of that process as applied to PFC is included in the TSD. EPA concludes that PFC should receive high priority for regulation and, as a result, should be added to the CAA section 183(e) list and schedule for regulation.

V. Which category is EPA removing from the schedule for regulation?

Concurrent with the addition of PFC, the Agency is removing one product category, “petroleum dry cleaning solvents,” from the CAA section 183(e) list of products for regulation. The 1990 nonattainment area emissions estimate for petroleum dry cleaning solvents was 49,091 megagrams.

When evaluated according to the criteria discussed above, the petroleum dry cleaning solvents category ranked lowest among the categories listed in the original CAA section 183(e) schedule for regulation in 1995. The results of the ranking exercise for petroleum dry cleaning solvents are documented in the TSD.

VI. What portion of the 1990 CAA section 183(e) baseline does the schedule for regulation address?

Section 183(e)(3)(A) of the CAA requires EPA to list and regulate categories that account for at least 80 percent of VOC emissions, on a reactivity-adjusted basis, in areas that violate the NAAQS for ozone. We base this calculation on the 1990 baseline of estimated VOC emissions from all consumer and commercial products in ozone nonattainment areas at that time. Because we had not previously identified PFC as a product category with significant VOC emissions, we did not include emission from this category towards the total emissions in the original 1990 baseline for all consumer and commercial products. We have now examined this product category and have added the estimated 1990 level of emissions from this category to the baseline we used for creation of the original CAA section 183(e) product list.

Pursuant to CAA section 183(e), EPA has adjusted the 1990 nationwide VOC emissions estimate to account for reactivity. This process, which is discussed in detail in the TSD, is based on giving higher weight to highly-reactive compounds. The nationwide emissions estimate was further adjusted to reflect VOC emissions in ozone nonattainment areas. Emissions for consumer products such as many household products, including PFC, generally track population (i.e., highly populated areas generally have higher use of a given product than sparsely populated areas). Therefore, the nonattainment area emissions of many consumer products, including PFC, are estimated to be proportional to the population in those areas. EPA estimated nonattainment area emissions in 1990 (the CAA section 183(e) baseline year) to be approximately 60 percent of nationwide emissions. This estimate is based on a 1990 nonattainment area population of 160 million divided by the total United States population of 260 million. As a result, the 1990 nationwide mass emissions estimate of 261,000 megagrams per year was adjusted for reactivity and scaled by population to yield reactivity-adjusted emissions of 228,722 megagrams in ozone nonattainment areas. Details of these calculations are provided in the TSD.

Having included such emissions in the 1990 baseline, EPA has increased the baseline by 228,722 megagrams per year. This results in a change from 3,481,804 to 3,710,526 megagrams per year. Accordingly, we have recalculated the percentage of VOC emissions accounted for by the categories listed for regulation. This action (i.e., adding PFC and removing petroleum dry cleaning solvents) results in EPA listing for regulation categories that account for 2,968,998 megagrams per year, or 80.02 percent of the 1990 baseline. The revised list of categories scheduled for regulation is shown in Table 1. As noted above, CAA section 183(e) gives EPA the discretion to revise the list of products for regulation, or to change the groupings of products for regulation, so long as the requirements of the section are met. EPA will make appropriate adjustments to ensure that we continue to meet the requirement to regulate categories accounting for at least 80 percent of the 1990 baseline.

VII. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA must determine whether the regulatory action is “significant” and, therefore, subject to review by the Office of Management and Budget (OMB) and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more, or adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

It has been determined that this action is not a “significant regulatory action” under the terms of Executive Order 12866 and is, therefore, not subject to OMB review.

This notice is not a rule; it is essentially an information sharing activity which does not impose regulatory requirements or costs. Therefore, the requirements of Executive Order 13132 (Federalism), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), Executive Order 13045 (Protection of Children from Environmental Health Risks and Safety Risks), Executive Order 13211 (Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use), the Regulatory Flexibility Act, the Unfunded Mandates Reform Act, and the National Technology Transfer and Advancement Act do not apply to this notice. Also, this notice does not contain any information collection requirements and, therefore, is not subject to the Paperwork Reduction Act, 44 U.S.C. 3501, et seq.