Administrative Code

Virginia Administrative Code
Title 9. Environment
Agency 5. State Air Pollution Control Board
9/25/2020

Chapter 45. Consumer and Commercial Products

Part I
Special Provisions

9VAC5-45-10. Applicability.

A. The provisions of this chapter, unless specified otherwise, shall apply to:

1. Any product for which an emission standard or other requirement is prescribed under this chapter; and

2. Any owner or other person that engages in or permits an operation that is subject to the provisions of this chapter. Such operations may include, but are not limited to, the manufacture, packaging, distribution, marketing, application, sale or use, or contracting for the application, sale, or use, of the products specified in subdivision 1 of this subsection.

B. The provisions set forth in subdivisions 1 through 6 of this subsection, unless specified otherwise, shall not apply to any product or operation for which emission standards are prescribed under this chapter.

1. The provisions of 9VAC5-20-160 (Registration).

2. The provisions of 9VAC5-20-180 (Facility and control equipment maintenance or malfunction).

3. The provisions of Article 1 (9VAC5-40-60 et seq.) of Part II of 9VAC5-40 (Existing Stationary Sources) and Article 1 (9VAC5-50-60 et seq.) of Part II of 9VAC5-50 (New and Modified Stationary Sources).

4. The provisions of Article 2 (9VAC5-40-130 et seq.) of Part II of 9VAC5-40 (Existing Stationary Sources) and Article 2 (9VAC5-50-130 et seq.) of Part II of 9VAC5-50 (New and Modified Stationary Sources).

5. The provisions of Article 4 (9VAC5-60-200 et seq.) of Part II of 9VAC5-60 (Hazardous Air Pollutant Sources) and Article 5 (9VAC5-60-300 et seq.) of Part II of 9VAC5-60 (Hazardous Air Pollutant Sources).

6. The provisions of Article 6 (9VAC5-80-1100 et seq.), Article 7 (9VAC5-80-1400 et seq.), Article 8 (9VAC5-80-1605 et seq.), and Article 9 (9VAC5-80-2000 et seq.) of Part II of 9VAC5-80 (Permits for Stationary Sources).

C. Nothing in this chapter shall be interpreted to exempt a stationary source from any provision of 9VAC5-40 (Existing Stationary Sources), 9VAC5-50 (New and Modified Stationary Sources), 9VAC5-60 (Hazardous Air Pollutant Sources) or 9VAC5-80 (Permits for Stationary Sources) that may apply.

D. Any owner or other person subject to the provisions of this chapter may provide any report, notification, or other document by electronic media if acceptable to both the owner and board. This subsection shall not apply to documents requiring signatures or certification under 9VAC5-20-230.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-20. Compliance.

A. Unless otherwise specified in this chapter, no owner or other person shall engage in or permit any applicable operation (such as the manufacture, packaging, distribution, marketing, application, sale or use, or contracting for the application, sale or use, of any product) in violation of a standard prescribed under this chapter after the effective date of such standard.

1. Compliance with standards in this chapter, other than opacity standards, shall be determined by emission tests established by 9VAC5-45-30, unless specified otherwise in the applicable standard.

2. Compliance with federal requirements in this chapter may be determined by alternative or equivalent methods only if approved by the administrator. For purposes of this subsection, federal requirements consist of the following:

a. New source performance standards established pursuant to § 111 of the federal Clean Air Act.

b. All terms and conditions in a federal operating permit, including any provisions that limit a source's potential to emit, unless expressly designated as not federally enforceable.

c. Limitations and conditions that are part of an implementation plan.

d. Limitations and conditions that are part of a § 111(d) or § 111(d)/129 plan.

e. Limitations and conditions that are part of a federal construction permit issued under 40 CFR 52.21 or any construction permit issued under regulations approved by EPA in accordance with 40 CFR Part 51.

f. Limitations and conditions that are part of an operating permit issued pursuant to a program approved by EPA into an implementation plan as meeting EPA's minimum criteria for federal enforceability, including adequate notice and opportunity for EPA and public comment prior to issuance of the final permit and practicable enforceability.

3. Compliance with opacity standards in this chapter shall be determined by conducting observations in accordance with Reference Method 9 or any alternative method. For purposes of determining initial compliance, the minimum total time of observations shall be three hours (30 six-minute averages) for the emission test or other set of observations (meaning those fugitive-type emission sources subject only to an opacity standard). Opacity readings of portions of plumes that contain condensed, uncombined water vapor shall not be used for purposes of determining compliance with opacity standards.

4. The opacity standards prescribed under this chapter shall apply at all times except during periods of startup, shutdown, malfunction, and as otherwise provided in the applicable standard. This exception shall not apply to the following federal requirements:

a. Limitations and conditions that are part of an implementation plan.

b. Limitations and conditions that are part of a federal construction permit issued under 40 CFR 52.21 or any construction permit issued under regulations approved by EPA in accordance with 40 CFR Part 51.

c. Limitations and conditions that are part of an operating permit issued pursuant to a program approved by EPA into an implementation plan as meeting EPA's minimum criteria for federal enforceability, including adequate notice and opportunity for EPA and public comment prior to issuance of the final permit and practicable enforceability.

B. No owner or other person subject to the provisions of this chapter shall fail to conduct emission tests as required under this chapter.

C. No owner or other person subject to the provisions of this chapter shall fail to install, calibrate, maintain, and operate equipment for continuously monitoring and recording emissions or process parameters or both as required under this chapter.

D. No owner or other person subject to the provisions of this chapter shall fail to provide notifications and reports, revise reports, maintain records, or report emission test or monitoring results as required under this chapter.

E. At all times, including periods of startup, shutdown, soot blowing and malfunction, owners shall, to the extent practicable, maintain and operate any equipment associated with an operation subject to the provisions of this chapter including associated air pollution control equipment in a manner consistent with air pollution control practices for minimizing emissions. Determination of whether acceptable operating and maintenance procedures are being used will be based on information available to the board, which may include, but is not limited to, monitoring results, opacity observations, review of operating and maintenance procedures, and inspection of the operation.

F. At all times the disposal of volatile organic compounds shall be accomplished by taking measures, to the extent practicable, consistent with air pollution control practices for minimizing emissions. Volatile organic compounds shall not be intentionally spilled, discarded in sewers that are not connected to a treatment plant, or stored in open containers or handled in any other manner that would result in evaporation beyond that consistent with air pollution control practices for minimizing emissions.

G. For the purpose of submitting compliance certifications or establishing whether or not an owner or other person has violated or is in violation of any standard in this chapter, nothing in this chapter shall preclude the use, including the exclusive use, of any credible evidence or information, relevant to whether a source would have been in compliance with applicable requirements if the appropriate emission or compliance test or procedure had been performed.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-30. Emission testing.

A. Emission tests for operations and products subject to standards prescribed under this chapter shall be conducted and reported, and data shall be reduced as set forth in this chapter and in the appropriate reference methods unless the board (i) specifies or approves, in specific cases, the use of a reference method with minor changes in methodology; (ii) approves the use of an equivalent method; (iii) approves the use of an alternative method the results of which the board has determined to be adequate for indicating whether such operation or product is in compliance; (iv) waives the requirement for emission tests because the owner or other person has demonstrated by other means to the board's satisfaction that such operation or product is in compliance with the standard; or (v) approves shorter sampling times and smaller sample volumes when necessitated by process variables or other factors. In cases where no appropriate reference method exists for an operation or product subject to an emission standard for volatile organic compounds, the applicable test method in 9VAC5-20-121 may be considered appropriate.

B. Emission testing for operations and products subject to standards prescribed under this chapter shall be subject to testing guidelines approved by the board. Procedures may be adjusted or changed by the board to suit specific sampling conditions or needs based upon good practice, judgment, and experience. When such tests are adjusted, consideration shall be given to the effect of such change on established emission standards. Tests shall be performed under the direction of persons whose qualifications are acceptable to the board.

C. Emission tests for operations and products subject to standards prescribed under this chapter shall be conducted under conditions that the board shall specify to the owner, based on representative performance of such operation or product. The owner shall make available to the board such records as may be necessary to determine the conditions of the emission tests. Operations during periods of startup, shutdown, and malfunction shall not constitute representative conditions for the purpose of an emission test unless otherwise specified in the applicable standard.

D. An owner may request that the board determine the opacity of emissions from operations or control devices that are subject to the provisions of this chapter during the emission tests required by this section.

E. Except as otherwise specified in the applicable test method or procedure, each emission test for an operation or product subject to standards prescribed under this chapter shall consist of three separate runs using the applicable test method. Each run shall be conducted for the time and under the conditions acceptable to the board. For the purpose of determining compliance with an applicable standard, the arithmetic mean of the results of the three runs shall apply. In the event that a sample is accidentally lost, or if conditions occur in which one of the three runs must be discontinued because of forced shutdown, failure of an irreplaceable portion of the sample train, extreme meteorological conditions, or other circumstances beyond the owner's control, compliance may, upon the approval of the board, be determined using the arithmetic mean of the results of the two other runs.

F. The board may test emissions of volatile organic compounds from any operation or product subject to standards prescribed under this chapter. Upon request of the board the owner shall provide, or cause to be provided, emission testing facilities as follows:

1. Sampling ports adequate for test methods applicable to such source. This includes (i) constructing the air pollution control system such that volumetric flow rates and pollutant emission rates can be accurately determined by applicable test methods and procedures and (ii) providing a stack or duct with acceptable flow characteristics during emission tests, as demonstrated by applicable test methods and procedures.

2. Safe sampling platforms.

3. Safe access to sampling platforms.

4. Utilities for sampling and testing equipment.

5. Test enclosures for determining capture efficiency.

G. The board may, at its discretion, accept other demonstrations of compliance in lieu of emission testing, such as the results of manufacturer emission testing of a product batch or manufacturer product batch formulation records.

H. Upon request of the board, any owner or other person causing or permitting any operation subject to the provisions of this chapter shall conduct emission tests in accordance with procedures approved by the board.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-40. Monitoring.

A. Unless otherwise approved by the board, owners or other persons subject the provisions of an standard under this chapter shall install, calibrate, maintain, and operate systems for continuously monitoring and recording emissions of specified pollutants as specified in the applicable article of this chapter. However, nothing in this chapter shall exempt any owner from complying with subsection F of this section.

B. All continuous monitoring systems and monitoring devices shall be installed and operational prior to conducting emission tests required under 9VAC5-45-30. Verification of operational status shall, as a minimum, include completion of the manufacturer's written requirements or recommendations for installation, operation, and calibration of the device and completion of any conditioning period specified by the appropriate specification in Appendix B of 40 CFR Part 60.

C. During any emissions tests required under 9VAC5-45-30 or within 30 days thereafter and at such other times as may be requested by the board, the owner or other person subject to the requirements of subsection A of this section shall conduct continuous monitoring system performance evaluations and furnish the board within 60 days of them two or, upon request, more copies of a written report of the results of such tests. These continuous monitoring system performance evaluations shall be conducted in accordance with the requirements and procedures specified in the applicable emission standard, the requirements contained in applicable procedures in 9VAC5-20-121, and the requirements and procedures equivalent to those contained in the appropriate specification of Appendix B of 40 CFR Part 60.

D. Unless otherwise approved by the board, all continuous monitoring systems required by subsection A of this section shall be installed, calibrated, maintained, and operated in accordance with (i) applicable requirements in this section, (ii) requirements in the applicable emission standard, and (iii) requirements equivalent to those in 40 CFR 60.13.

E. After receipt and consideration of written application, the board may approve alternatives to any monitoring procedures or requirements of this chapter including, but not limited to, the following:

1. Alternative monitoring requirements when installation of a continuous monitoring system or monitoring device specified by this chapter would not provide accurate measurements due to liquid water or other interferences caused by substances within the effluent gases.

2. Alternative monitoring requirements when the source is infrequently operated.

3. Alternative monitoring requirements to accommodate continuous monitoring systems that require additional measurements to correct for stack moisture conditions.

4. Alternative locations for installing continuous monitoring systems or monitoring devices when the owner can demonstrate the installation at alternate locations will enable accurate and representative measurements.

5. Alternative methods of converting pollutant concentration measurements to units of the standards.

6. Alternative procedures for computing emission averages that do not require integration of data (e.g., some facilities may demonstrate that the variability of their emissions is sufficiently small to allow accurate reduction of data based upon computing averages from equally spaced data points over the averaging period).

7. Alternative monitoring requirements when the effluent from a single source or the combined effluent from two or more sources are released to the atmosphere through more than one point.

8. Alternative procedures for performing calibration checks.

9. Alternative monitoring requirements when the requirements of this section would impose an extreme economic burden on the owner.

10. Alternative monitoring requirements when the continuous monitoring systems cannot be installed due to physical limitations at the source.

F. Upon request of the board, the owner or other person subject to the provisions of this chapter shall install, calibrate, maintain, and operate equipment for continuously monitoring and recording emissions or process parameters or both in accordance with methods and procedures acceptable to the board.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-50. Notification, records and reporting.

A. Any owner or other person subject to the continuous monitoring provisions of 9VAC5-45-40 C shall provide written notifications to the board of the following:

1. The date upon which demonstration of the continuous monitoring system performance begins in accordance with 9VAC5-45-40 C. Notification shall be postmarked not less than 30 days prior to such date.

2. The date of any emission test the owner wishes the board to consider in determining compliance with a standard. Notification shall be postmarked not less than 30 days prior to such date.

3. The anticipated date for conducting the opacity observations required by 9VAC5-45-20 A 3. The notification shall also include, if appropriate, a request for the board to provide a visible emissions reader during an emission test. The notification shall be postmarked not less than 30 days prior to such date.

B. Any owner or other person subject to the continuous monitoring provisions of 9VAC5-45-40 A shall maintain records of the occurrence and duration of any startup, shutdown, or malfunction of the operation subject to the provisions of an article under this chapter; any malfunction of the air pollution control equipment; or any periods during which a continuous monitoring system or monitoring device is inoperative.

C. Each owner or other person required to install a continuous monitoring system (CMS) or monitoring device shall submit a written report of excess emissions (as defined in the applicable emission standard) and either a monitoring systems performance report or a summary report form, or both, to the board semiannually, except when (i) more frequent reporting is specifically required by an applicable emission standard or the CMS data are to be used directly for compliance determination, in which case quarterly reports shall be submitted; or (ii) the board, on a case-by-case basis, determines that more frequent reporting is necessary to accurately assess the compliance status of the source. The summary report and form shall meet the requirements of 40 CFR 60.7(d). The frequency of reporting requirements may be reduced as provided in 40 CFR 60.7(e). All reports shall be postmarked by the 30th day following the end of each calendar half (or quarter, as appropriate). Written reports of excess emissions shall include the following information:

1. The magnitude of excess emissions computed in accordance with 9VAC5-40-41 B 6, any conversion factors used, and the date and time of commencement and completion of each period of excess emissions.

2. The process operating time during the reporting period.

3. Specific identification of each period of excess emissions that occurs during startups, shutdowns, and malfunctions of the source.

4. The nature and cause of any malfunction (if known), the corrective action taken or preventative measures adopted.

5. The date and time identifying each period during which the continuous monitoring system was inoperative except for zero and span checks and the nature of the system repairs or adjustments.

6. When no excess emissions have occurred or the continuous monitoring systems have not been inoperative, repaired, or adjusted, such information shall be stated in the report.

D. Any owner or other person subject to the continuous monitoring provisions of 9VAC5-45-40 or monitoring requirements of an article under this chapter shall maintain a file of all measurements, including continuous monitoring system, monitoring device, and emission testing measurements; all continuous monitoring system performance evaluations; all continuous monitoring system or monitoring device calibration checks; adjustments and maintenance performed on these systems or devices; and all other information required by this chapter recorded in a permanent form suitable for inspection. The file shall be retained for at least two years (unless a longer period is specified in the applicable standard) following the date of such measurements, maintenance, reports, and records.

E. Any data or information required by the Regulations for the Control and Abatement of Air Pollution, any permit or order of the board, or which the owner wishes the board to consider, to determine compliance with an emission standard shall be recorded or maintained in a time frame consistent with the averaging period of the standard.

F. Any owner or other person that is subject to the provisions of this chapter shall keep records as may be necessary to determine its emissions. Any owner or other person claiming that an operation or product is exempt from the provisions of the Regulations for the Control and Abatement of Air Pollution shall keep records as may be necessary to demonstrate to the satisfaction of the board its continued exempt status.

G. Unless otherwise specified by the provisions of an article under this chapter, all records required to determine compliance with the provisions of an article under this chapter shall be maintained by the owner or other person subject to such provision for two years from the date such record is created and shall be made available to the board upon request.

H. Upon request of the board, the owner or other person subject to the provisions of this chapter shall provide notifications and report, revise reports, maintain records, or report emission test or monitoring results in a manner and form and using procedures acceptable to board.

I. Information submitted to the board to meet the requirements of this chapter shall be available to the public except where the owner makes a showing satisfactory to the board under 9VAC5-170-60 B that the information meets the criteria in 9VAC5-170-60 C, in which case the information shall be handled in accordance with the procedures specified in §§ 10.1-1314 and 10.1-1314.1 of the Air Pollution Control Law of Virginia.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

Part II
Emission Standards

Article 1
Emission Standards for Portable Fuel Containers and Spouts Manufactured before August 1, 2010

9VAC5-45-60. Applicability.

A. Except as provided in 9VAC5-45-70, the provisions of this article apply to any portable fuel container or spout manufactured before August 1, 2010. The provisions of Article 2 (9VAC5-45-160 et seq.) of this part apply to portable fuel containers and spouts manufactured on or after August 1, 2010.

B. Except as provided in 9VAC5-45-70, the provisions of this article apply to any owner or other person who sells, supplies, offers for sale, or manufactures for sale portable fuel containers or spouts.

C. The provisions of this article apply only to owners and other persons in the Northern Virginia and Fredericksburg Volatile Organic Compound Emissions Control Areas designated in 9VAC5-20-206.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-70. Exemptions.

A. The provisions of this article do not apply to any portable fuel container or spout manufactured for shipment, sale, and use outside of the applicable volatile organic compound emissions control areas designated in 9VAC5-45-60.

B. The provisions of this article do not apply to a manufacturer or distributor who sells, supplies, or offers for sale a portable fuel container or spout that does not comply with the emission standards specified in 9VAC5-45-90, as long as the manufacturer or distributor can demonstrate that: (i) the portable fuel container or spout is intended for shipment and use outside of the applicable volatile organic compound emissions control areas designated in 9VAC5-45-60 C; and (ii) the manufacturer or distributor has taken reasonable prudent precautions to assure that the portable fuel container or spout is not distributed within the applicable volatile organic compound emissions control areas designated in 9VAC5-45-60 C. This subsection does not apply to portable fuel containers or spouts that are sold, supplied, or offered for sale to retail outlets.

C. The provisions of this article do not apply to safety cans meeting the requirements of 29 CFR Part 1926 Subpart F.

D. The provisions of this article do not apply to portable fuel containers with a nominal capacity less than or equal to one quart.

E. The provisions of this article do not apply to rapid refueling devices with nominal capacities greater than or equal to four gallons, provided (i) such devices are designed for use in officially sanctioned off-highway motor sports such as car racing or motorcycle competitions, and (ii) such devices either create a leak-proof seal against a stock target fuel tank, or are designed to operate in conjunction with a receiver permanently installed on the target fuel tank.

F. The provisions of this article do not apply to portable fuel tanks manufactured specifically to deliver fuel through a hose attached between the portable fuel tank and the outboard engine for the purpose of operating the outboard engine.

G. The provisions of this article do not apply to closed-system portable fuel containers that are used exclusively for fueling remote control model airplanes.

H. For purposes of this article, the terms "supply" or "supplied" do not include internal transactions within a business or governmental entity. These terms only apply to transactions between manufacturers/commercial distributors that sell, or otherwise provide, products to businesses/governmental entities/individuals.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-80. Definitions.

A. For the purpose of applying this article in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meanings given them in subsection C of this section.

B. As used in this article, all terms not defined herein shall have the meanings given them in 9VAC5-10 (General Definitions) unless otherwise required by context.

C. Terms defined.

"ASTM" means the American Society for Testing and Materials.

"CARB" means California Air Resources Board.

"Consumer" means any person who purchases or otherwise acquires a new portable fuel container or spout for personal, family, household, or institutional use. Persons acquiring a portable fuel container or spout for resale are not "consumers" for that product.

"Distributor" means any person to whom a portable fuel container or spout is sold or supplied for the purpose of resale or distribution in commerce. This term does not include manufacturers, retailers, and consumers.

"Fuel" means all motor fuels subject to any provision of Chapter 12 (§ 59.1-149 et seq.) of Title 59.1 of the Code of Virginia, excluding liquefied petroleum gas, compressed natural gas, and hydrogen. This term includes, but is not limited to, gasoline, diesel fuel, and gasoline-alcohol blends.

"Manufacturer" means any person who imports, manufactures, assembles, produces, packages, repackages, or re-labels a portable fuel container or spout.

"Nominal capacity" means the volume indicated by the manufacturer that represents the maximum recommended filling level.

"Outboard engine" means a spark-ignition marine engine that, when properly mounted on a marine watercraft in the position to operate, houses the engine and drive unit external to the hull of the marine watercraft.

"Permeation" means the process by which individual fuel molecules may penetrate the walls and various assembly components of a portable fuel container directly to the outside ambient air.

"Portable fuel container" means any container or vessel with a nominal capacity of 10 gallons or less intended for reuse that is designed, used, sold, advertised for sale, or offered for sale for receiving, transporting, storing, and dispensing fuel. Portable fuel containers do not include containers or vessels permanently embossed or permanently labeled as described in 49 CFR 172.407(a) with language indicating that the containers or vessels are solely intended for use with nonfuel products.

"Retail outlet" means any establishment at which portable fuel containers or spouts are sold, supplied, or offered for sale.

"Retailer" means any person who owns, leases, operates, controls, or supervises a retail outlet.

"Spill-proof spout" means any spout that complies with the standards specified in 9VAC5-45-90 B and the administrative requirements in 9VAC5-45-100.

"Spill-proof system" means any configuration of portable fuel container and firmly attached spout that complies with the standards in 9VAC5-45-90 A and the administrative requirements in 9VAC5-45-100.

"Spout" means any device that can be firmly attached to a portable fuel container and through which the contents of the container may be poured. A spout does not include a device that can be used to lengthen the spout to accommodate necessary applications.

"Target fuel tank" means any receptacle that receives fuel from a portable fuel container.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-90. Standard for volatile organic compounds.

A. No owner or other person shall sell, supply, offer for sale, or manufacture for sale any portable fuel container after the compliance dates specified in 9VAC5-45-120 A unless that portable fuel container meets all of the following standards for spill-proof systems:

1. Has an automatic shut-off that stops the fuel flow before the target fuel tank overflows.

2. Automatically closes and seals when removed from the target fuel tank and remains completely closed when not dispensing fuel.

3. Has only one opening for both filling and pouring.

4. Does not exceed a permeation rate of 0.4 grams per gallon per day.

5. Is warranted by the manufacturer for a period of not less than one year against defects in materials and workmanship.

B. No owner or other person shall sell, supply, offer for sale, or manufacture for sale any spout after the compliance dates specified in 9VAC5-45-120 unless that spout meets all of the following standards for spill-proof spouts:

1. Has an automatic shut-off that stops the fuel flow before the target fuel tank overflows.

2. Automatically closes and seals when removed from the target fuel tank and remains completely closed when not dispensing fuel.

3. Is warranted by the manufacturer for a period of not less than one year against defects in materials and workmanship.

C. The test procedures for determining compliance with the standards in this section are set forth in 9VAC5-45-130. The manufacturer of portable fuel containers or spouts shall perform the tests for determining compliance as set forth in 9VAC5-45-130 to show that its product meets the standards of this section prior to allowing the product to be offered for sale. The manufacturer shall maintain records of these compliance tests for as long as the product is available for sale and shall make those test results available within 60 days of request.

D. Compliance with the standards in this section does not exempt spill-proof systems or spill-proof spouts from compliance with other applicable federal and state statutes and regulations such as state fire codes, safety codes, and other safety regulations, nor will the board test for or determine compliance with such other statutes or regulations.

E. The following provisions apply to sell through of portable fuel containers and spouts manufactured before August 1, 2010:

1. Notwithstanding the provisions of subsections A and B of this section, a portable fuel container or spout manufactured before the applicable compliance date specified in 9VAC5-45-120 A may be sold, supplied, or offered for sale after the applicable compliance date, if the date of manufacture or a date code representing the date of manufacture is clearly displayed on the portable fuel container or spout.

2. Notwithstanding the provisions of subsections A and B of this section, a portable fuel container or spout manufactured after the applicable compliance date specified in 9VAC5-45-120 A and before August 1, 2010, may be sold, supplied, or offered for sale on or after August 1, 2010, if it complies with all of the provisions of Article 2 (9VAC5-45-160 et seq.) of this part.

3. Except as provided in subdivisions 1 and 2 of this subsection, displaying the date of manufacture, or a code indicating the date of manufacture, on the product container or package does not exempt the owner or product from the provisions of this article.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-100. Administrative requirements.

A. Each manufacturer of a portable fuel container subject to and complying with 9VAC5-45-90 A shall clearly display on each spill-proof system:

1. The phrase "Spill-Proof System";

2. A date of manufacture or representative date code; and

3. A representative code identifying the portable fuel container as subject to and complying with 9VAC5-45-90 A.

B. Each manufacturer of a spout subject to and complying with 9VAC5-45-90 B shall clearly display on the accompanying package, or for spill-proof spouts sold without packaging, on either the spill-proof spout or a label affixed thereto:

1. The phrase "Spill-Proof Spout";

2. A date of manufacture or representative date code; and

3. A representative code identifying the spout as subject to and complying with 9VAC5-45-90 B.

C. Each manufacturer subject to subsection A or B shall file an explanation of both the date code and representative code with the board no later than the later of three months after the effective date of this article or within three months of production, and within three months after any change in coding.

D. Each manufacturer of a spout subject to subsection B of this section shall clearly display the make, model number, and size of those portable fuel containers the spout is designed to accommodate and for which the manufacturer can demonstrate the container's compliance with 9VAC5-45-90 on the accompanying package, or for spill-proof spouts sold without packaging, on either the spill-proof spout or a label affixed thereto.

E. Manufacturers of portable fuel containers not subject to or not in compliance with 9VAC5-45-90 may not display the phrase "Spill-Proof System" or "Spill-Proof Spout" on the portable fuel container or spout or on any sticker or label affixed thereto or on any accompanying package.

F. Each manufacturer of a portable fuel container or spout subject to and complying with 9VAC5-45-90 that due to its design or other features cannot be used to refuel on-road motor vehicles shall clearly display the phrase "Not Intended For Refueling On-Road Motor Vehicles" in type of 34 point or greater on each of the following:

1. For a portable fuel container sold as a spill-proof system, on the system or on a label affixed thereto, and on the accompanying package, if any; and

2. For a spill-proof spout sold separately from a spill-proof system, on either the spill-proof spout, or a label affixed thereto, and on the accompanying package, if any.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-110. Compliance.

The provisions of subsections B, D, F, and G of 9VAC5-45-20 (Compliance) apply. The other provisions of 9VAC5-45-20 do not apply.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-120. Compliance schedules.

A. Affected persons shall comply with the provisions of this article as expeditiously as possible but in no case later than:

1. January 1, 2005, in the Northern Virginia VOC Emissions Control Area; or

2. January 1, 2008, in the Fredericksburg VOC Emissions Control Area.

B. Any owner or other person who cannot comply with the provisions of this article by the date specified in subsection A of this section, due to extraordinary reasons beyond that person's reasonable control, may apply in writing to the board for a waiver. The waiver application shall set forth:

1. The specific grounds upon which the waiver is sought, including the facts that support the extraordinary reasons that compliance is beyond the applicant's reasonable control;

2. The proposed date by which compliance with the provisions of this article will be achieved; and

3. A compliance report detailing the methods by which compliance will be achieved.

C. No waiver may be granted unless all of the following findings are made:

1. That, due to reasons beyond the reasonable control of the applicant, required compliance with this article would result in extraordinary economic hardship;

2. That the public interest in mitigating the extraordinary hardship to the applicant by issuing the waiver outweighs the public interest in avoiding any increased emissions of air contaminants that would result from issuing the waiver; and

3. That the compliance report proposed by the applicant can reasonably be implemented and shall achieve compliance as expeditiously as possible.

D. Any approval of a waiver shall specify a final compliance date by which compliance with the requirements of this article shall be achieved. Any approval of a waiver shall contain a condition that specifies the increments of progress necessary to assure timely compliance and such other conditions that the board finds necessary to carry out the purposes of this article.

E. A waiver shall cease to be effective upon the failure of the party to whom the waiver was granted to comply with any term or condition of the waiver.

F. Upon the application of any person, the board may review, and for good cause, modify or revoke a waiver from requirements of this article.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-130. Test methods and procedures.

A. The provisions of subsection G of 9VAC5-45-30 (Emission testing) apply. The other provisions of 9VAC5-45-30 do not apply.

B. Testing to determine compliance with 9VAC5-45-90 B of this article shall be performed by using the following test procedures (see 9VAC5-20-21):

1. CARB "Automatic Shut-Off Test Procedure for Spill-Proof Systems and Spill-Proof Spouts."

2. CARB "Automatic Closure Test Procedure for Spill-Proof Systems and Spill-Proof Spouts."

C. Testing to determine compliance with 9VAC5-45-90 A of this article shall be performed by using all test procedures in subsection B of this section and the following test procedure: CARB Determination of Permeation Rate for Spill-Proof Systems (see 9VAC5-20-21). Alternative methods that are shown to be accurate, precise, and appropriate may be used upon written approval of the board.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-140. Monitoring.

The provisions of 9VAC5-45-40 (Monitoring) do not apply.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-150. Notification, records and reporting.

The provisions of subsections E, F, and G of 9VAC5-45-50 (Notification, records and reporting) apply. The other provisions of 9VAC5-45-50 do not apply.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

Article 2
Emission Standards for Portable Fuel Containers and Spouts Manufactured on or after August 1, 2010

9VAC5-45-160. Applicability.

A. Except as provided in 9VAC5-45-170, the provisions of this article apply to any portable fuel container or spout manufactured on or after August 1, 2010. The provisions of Article 1 (9VAC5-45-60 et seq.) of this part apply to portable fuel containers and spouts manufactured before August 1, 2010.

B. Except as provided in 9VAC5-45-170, the provisions of this article apply to any owner or other person who sells, supplies, offers for sale, advertises for sale, or manufactures for sale portable fuel containers or spouts.

C. The provisions of this article apply only to owners and other persons in the Northern Virginia, Fredericksburg, and Richmond Volatile Organic Compound Emissions Control Areas designated in 9VAC5-20-206.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-170. Exemptions.

A. The provisions of this article do not apply to any portable fuel container or spout manufactured for shipment, sale, and use outside of the applicable volatile organic compound emissions control areas designated in 9VAC5-45-160 C.

B. The provisions of this article do not apply to a manufacturer or distributor who sells, supplies, or offers for sale a portable fuel container or spout that does not comply with the emission standards specified in 9VAC5-45-190, as long as the manufacturer or distributor can demonstrate that: (i) the portable fuel container or spout is intended for shipment and use outside of the applicable volatile organic compound emissions control areas designated in 9VAC5-45-160 C; and (ii) the manufacturer or distributor has taken reasonable prudent precautions to assure that the portable fuel container or spout is not distributed within the applicable volatile organic compound emissions control areas designated in 9VAC5-45-160 C. This subsection does not apply to portable fuel containers or spouts that are sold, supplied, or offered for sale to retail outlets.

C. The provisions of this article do not apply to safety cans meeting the requirements of 29 CFR Part 1926 Subpart F.

D. The provisions of this article do not apply to portable fuel containers with a nominal capacity less than or equal to one quart.

E. The provisions of this article do not apply to rapid refueling devices with nominal capacities greater than or equal to four gallons provided (i) such devices are designed for use in officially sanctioned off-highway motor sports such as car racing or motorcycle competitions, and (ii) such devices either create a leak-proof seal against a stock target fuel tank, or are designed to operate in conjunction with a receiver permanently installed on the target fuel tank.

F. The provisions of this article do not apply to portable fuel tanks manufactured specifically to deliver fuel through a hose attached between the portable fuel tank and the outboard engine for the purpose of operating the outboard engine.

G. The provisions of this article do not apply to closed-system portable fuel containers that are used exclusively for fueling remote control model airplanes.

H. For purposes of this article, the terms "supply" or "supplied" do not include internal transactions within a business or governmental entity. These terms only apply to transactions between manufacturers/commercial distributors that sell, or otherwise provide, products to businesses/governmental entities/individuals.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-180. Definitions.

A. For the purpose of applying this article in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meanings given them in subsection C of this section.

B. As used in this article, all terms not defined herein shall have the meanings given them in 9VAC5-10 (General Definitions) unless otherwise required by context.

C. Terms defined.

"ASTM" means the American Society for Testing and Materials.

"CARB" means California Air Resources Board.

"CARB certification executive order" means a CARB decision, signed by the CARB Executive Officer and specifying that one or more portable fuel containers or spouts has been certified by CARB to meet the requirements of CARB "Certification Procedure 501 for Portable Fuel Containers and Spill-Proof Spouts, CP-501" (see 9VAC5-20-21)

"Consumer" means any person who purchases or otherwise acquires a new portable fuel container or spout for personal, family, household, or institutional use. Persons acquiring a portable fuel container or spout for resale are not "consumers" for that product.

"Distributor" means any person to whom a portable fuel container or spout is sold or supplied for the purpose of resale or distribution in commerce. This term does not include manufacturers, retailers, and consumers.

"Fuel" means all motor fuels subject to any provision of Chapter 12 (§ 59.1-149 et seq.) of Title 59.1 of the Code of Virginia, excluding liquefied petroleum gas, compressed natural gas, and hydrogen. This term includes, but is not limited to, gasoline, diesel fuel, and gasoline-alcohol blends.

"Kerosene" or "kerosine" means any light petroleum distillate that is commonly or commercially known, sold, or represented as kerosene, that is used in space heating, cook stoves, and water heaters, and that is suitable for use as a light source when burned in wick-fed lamps.

"Manufacturer" means any person who imports, manufactures, assembles, produces, packages, repackages, or re-labels a portable fuel container or spout.

"Nominal capacity" means the volume indicated by the manufacturer that represents the maximum recommended filling level.

"Outboard engine" means a spark-ignition marine engine that, when properly mounted on a marine watercraft in the position to operate, houses the engine and drive unit external to the hull of the marine watercraft.

"Permeation" means the process by which individual fuel molecules may penetrate the walls and various assembly components of a portable fuel container directly to the outside ambient air.

"Portable fuel container" means any container or vessel with a nominal capacity of 10 gallons or less intended for reuse that is designed, used, sold, advertised for sale, or offered for sale for receiving, transporting, storing, and dispensing fuel or kerosene. Portable fuel containers do not include containers or vessels permanently embossed or permanently labeled as described in 49 CFR 172.407 (a) with language indicating that the containers or vessels are solely intended for use with nonfuel or nonkerosene products.

"Product category" means the applicable category that best describes the product with respect to its nominal capacity, material construction, fuel flow rate, and permeation rate, as applicable, as determined by the board.

"Retail outlet" means any establishment at which portable fuel containers or spouts are sold, supplied, or offered for sale.

"Retailer" means any person who owns, leases, operates, controls, or supervises a retail outlet.

"Spill-proof spout" means any spout that is certified by the board to be in compliance with the standards specified in 9VAC5-45-190 B and complies with the administrative requirements in 9VAC5-45-220.

"Spill-proof system" means any configuration of portable fuel container and firmly attached spout that is certified by the board to be in compliance with the standards in 9VAC5-45-190 B and complies with the administrative requirements in 9VAC5-45-220.

"Spout" means any device that can be firmly attached to a portable fuel container and through which the contents of the container may be poured. A spout does not include a device that can be used to lengthen the spout to accommodate necessary applications.

"Target fuel tank" means any receptacle that receives fuel from a portable fuel container.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-190. Standard for volatile organic compounds.

A. The following provisions apply to portable fuel containers and spouts manufactured on or after August 1, 2010:

1. No owner or other person shall sell, supply, offer for sale, or advertise for sale any portable fuel container or spout manufactured on or after August 1, 2010, unless that portable container or spout is certified by the board to be a spill-proof system or spill-proof spout that is in compliance with the standards in subsection B of this section in accordance with the certification procedures specified in 9VAC5-45-200.

2. No owner or other person shall manufacture for sale any portable fuel container or spout on or after August 1, 2010, unless that portable container or spout is certified by the board to be a spill-proof system or spill-proof spout that is in compliance with the standards in subsection B of this section in accordance with the certification procedures specified in 9VAC5-45-200.

B. The following standards apply to each portable fuel container or spout manufactured on or after August 1, 2010, that is subject to the provisions of this article:

1. Portable fuel containers shall be color coded and marked as follows:

a. Portable fuel containers shall be color coded for specific fuels:

(1) Gasoline – red;

(2) Diesel – yellow; and

(3) Kerosene – blue.

b. Each portable fuel container shall have identification markings on the container and on the spill-proof spout.

(1) Red containers shall be permanently identified with the embossed language or permanent durable label "GASOLINE" in minimum 34-point Arial font or a font of equivalent proportions.

(2) Yellow containers shall be permanently identified with the embossed language or permanent durable label "DIESEL" in minimum 34-point Arial font or a font of equivalent proportions.

(3) Blue containers shall be permanently identified with the embossed language or permanent durable label "KEROSENE" in minimum 34-point Arial font or a font of equivalent proportions.

2. Portable fuel containers shall comply with emissions standards as follows:

a. Portable fuel containers that are equipped with an intended spill-proof spout shall emit no more than 0.3 grams per gallon per day.

b. Compliance with emission standards in this subdivision shall be determined using the test procedure specified in 9VAC5-45-250 B 2.

c. Portable fuel containers that share similar designs, that are constructed of identical materials, and that are manufactured using identical processes, but vary only in size or color may be considered for certification as a product family.

3. Portable fuel containers and spouts shall comply with the specifications for durability in subsection 7.4 of the test procedure specified in 9VAC5-45-250 B 2.

4. There shall be no fluid leakage from any point in the spill-proof system or spill-proof spout as specified in the test procedures specified in 9VAC5-45-250 B 1 and 2.

5. The spill-proof system or spill-proof spout shall automatically close when the spill-proof spout is removed from the target tank, seal, and remain completely closed when not dispensing fuel, as specified in the test procedure specified in 9VAC5-45-250 B 1. Also, no liquid, beyond wetted surfaces, shall be retained in the spill-proof spout after fueling that may evaporate into the atmosphere.

6. An applicant seeking certification of a portable fuel container or spout from the board pursuant to this article shall also:

a. Warrant that its spill-proof system or spill-proof spout is free from defects in materials and workmanship that cause such systems or spill-proof spouts to fail to conform with each of the certification and compliance standards specified in CARB "Certification Procedure 501 for Portable Fuel Containers and Spill-Proof Spouts, CP-501," for a period of one year from the date of sale; and

b. Supply a copy of the warranty language specified in subdivision a of this subdivision that is supplied to the buyer in the packaging for each spill-proof system or spill-proof spout at the time of sale identifying the following minimum requirements:

(1) A statement of the terms and length of the warranty period;

(2) An unconditional statement that the spill-proof system or spill-proof spout is certified to the requirements in subdivision a of this subdivision (which may be referred to as being certified to California requirements); and

(3) A listing of the specific certification requirements or limitations to which it was certified.

7. An applicant shall supply a copy of the operating instructions intended for each spill-proof system or spill-proof spout, and fueling application, as supplied to the buyer in the packaging for each spill-proof system or spill-proof spout at the time of sale. These instructions shall include, at a minimum, the following specifications:

a. A listing of any specific equipment types, such as passenger cars and trucks, lawn and garden equipment, off-road motorcycles and snowmobiles, industrial equipment, and marine vessels that the spill-proof system or spill-proof spout, is not intended to refuel; and

b. Other instructions, such as the recommended fueling angle(s) or special instructions such as venting prior to use.

8. Spill-proof systems, spill-proof spouts and all components incorporated therein, such as gaskets, seals, or O-rings must demonstrate compliance with the requirements specified in 9VAC5-45-250 B 3 and 4. Applicants may request limited certification for use with only specified fuel blends. Such fuel-specific certifications shall clearly specify the limits and restrictions of the certification.

9. A portable fuel container may incorporate a secondary opening or vent hole (i.e., an opening other than the opening needed for the spout) provided the secondary opening or vent hole is not easily tampered by a consumer, and it does not emit hydrocarbon vapors in excess of the amounts specified in this section during fueling, storage, transportation, or handling events.

C. The test procedures for determining compliance with the standards in this section are set forth in 9VAC5-45-250. The manufacturer of portable fuel containers or spouts shall perform the tests for determining compliance as set forth in 9VAC5-45-250 to show that its product meets the standards of this section prior to allowing the product to be offered for sale. The manufacturer shall maintain records of these compliance tests for as long as the product is available for sale and shall make those test results available within 60 days of request.

D. Compliance with the standards in this section does not exempt spill-proof systems or spill-proof spouts from compliance with other applicable federal and state statutes and regulations such as state fire codes, safety codes, and other safety regulations, nor will the board test for or determine compliance with such other statutes or regulations.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-200. Certification procedures.

A. Provisions follow concerning the requirements and process for board certification of a portable fuel container or spout manufactured on or after August 1, 2010, as a spill-proof system or spill-proof spout.

B. To be considered by the board for certification, an application for certification shall be submitted in writing to the board by the manufacturer of the portable fuel container or spout.

1. Except as provided in subdivision D 2 of this section, the application shall contain the following information:

a. An identification of the names, addresses, and phone numbers of the company, owner or other persons that are submitting the application, and the names and phone numbers of contact persons that are knowledgeable concerning the application.

b. Model numbers and sizes of spill-proof systems or spill-proof spouts for which certification is requested.

c. Test data that demonstrates that the spill-proof systems or spill-proof spouts comply with each of the certification requirements identified in 9VAC5-45-190 B.

d. Engineering drawings of the spill-proof system or spill-proof spout detailing dimensions specific to each component. If an application is submitted for a spill-proof system (i.e., container and spout), separate dimensioned drawings for the portable fuel container and for the spill-proof spout are required. If more than one type or size of portable fuel container or more than one type of spill-proof spout is included in the application, separate dimensioned drawings are required for each component.

e. Test data from each of the test procedures specified in 9VAC5-45-250 B 1 and 2 demonstrating that the spill-proof system, spill-proof spout, or component meets the applicable criteria.

f. Any other test data that supports the requirements in subdivision e of this subsection and that would assist in the determination of certification.

g. The language, symbols, or patterns that will actually be permanently embossed on the spill-proof system or spill-proof spout. This shall include examples of date code wheels as well as all other permanent markings and their locations on the container and/or spill-proof spout. Once the board certifies a spill-proof system or spill-proof spout, these permanent markings cannot be altered or modified in any way without first obtaining the board's approval.

h. The language or labels that may be affixed to the spill-proof system or spill-proof spout at the time of sale.

i. The manufacturer's recommended instructions, instruction decals, or any other type of placard attached to the spill-proof system or spill-proof spout at the time of sale. Include examples of actual decals or placards if available. Proposed placards or decals are sufficient if actual samples are not available. Once the board certifies a spill-proof system or spill-proof spout, these decals or placards cannot be altered or modified in any way without first obtaining the board's approval.

j. The manufacturer warranty(s) as defined in 9VAC5-45-190 B 6.

k. A description of the materials used in the construction of the spill-proof system or spill-proof spout. Material compositions of gaskets, O-rings, and seals must be described.

l. If the applicant is not the manufacturer of all system components incorporated in a spill-proof system or spill-proof spout, the applicant must include evidence that the component manufacturers have been notified of the applicant's intended use of the manufacturers' components in the spill-proof system or spill-proof spout for which the application is being made.

(1) If the applicant is requesting inclusion of one or more components not manufactured by it on the applicable spill-proof system or spill-proof spout, the applicant shall notify the component manufacturers and obtain the information required of the application as specified in this subsection.

(2) If the component design and material specifications requested for inclusion in the certification have not been previously incorporated in a spill-proof system or spill-proof spout that has been issued a CARB certification executive order or has been certified by the board pursuant to these procedures, then each of the components shall be subject to each of the application and test requirements specified in this article.

m. A sample of the spill-proof system or spill-proof spout is not required as part of the initial application for certification. The board may later require that a sample be provided if it is deemed necessary to make the proper certification determination.

n. The document certification statement required by 9VAC5-20-230, signed by a responsible official as defined in that section.

o. The information required by subdivision B 1 a of this section is public information that may not be claimed as confidential. Other information submitted to the board to meet the requirements of this article shall be available to the public except where the owner makes a showing satisfactory to the board under 9VAC5-170-60 B that the information meets the criteria in 9VAC5-170-60 C, in which case the information shall be handled in accordance with the procedures specified in §§ 10.1-1314 and 10.1-1314.1 of the Air Pollution Control Law of Virginia.

2. In accordance with the time periods specified in subsection C of this section, the board will certify a portable fuel container or spout. The board will specify such terms and conditions as are necessary to ensure that the emissions from the portable fuel containers or spouts do not exceed the VOC standards specified in 9VAC5-45-190. The certification shall also include operational terms, conditions, and data to be reported to the board to ensure that all requirements of this article are met.

C. Provisions follow concerning the portable fuel container or spout certification time frames.

1. The board will take appropriate action on an application within the following time periods:

a. Within 30 working days of receipt of an application, the board will inform the applicant in writing that either:

(1) The application is complete and accepted for filing, or

(2) The application is deficient, and identify the specific information required to make the application complete.

b. Within 30 working days of receipt of additional information provided in response to a determination that an application is deficient, the board will inform the applicant in writing that either:

(1) The additional information is sufficient to make the application complete, and the application is accepted for filing, or

(2) The application is deficient, and identify the specific information required to make the application complete.

c. If the board finds that an application meets the requirements of subsection B of this section, then it shall certify that the requirements have been met in accordance with the requirements of this article. The board will normally act to approve or disapprove a complete application within 90 working days after the application is deemed complete. The board may extend this time period if additional information is needed.

2. Before the end of each time period specified in this section, the board and the applicant may mutually agree to a longer time period for the board to take the appropriate action.

D. In accordance with the following procedures, the board will take into consideration whether the portable fuel container or spout has been certified by CARB.

1. In lieu of granting certification based upon review of an application as required under subsection B of this section, certification may be granted by the board as follows:

a. Certification may be granted solely on the basis of the effective CARB certification executive order, or

b. Certification may be granted on the basis of the effective CARB certification executive order, modified as necessary by the board to meet the requirements of this article.

2. An abbreviated application may be submitted by a manufacturer requesting certification by the board under subdivision 1 of this subsection. The abbreviated application shall include, as a minimum:

a. A request by the manufacturer that certification be granted by the board based upon an effective CARB certification executive order.

b. A copy of the effective CARB certification executive order, including all conditions established by CARB applicable to the CARB certification executive order.

c. A certification that the manufacturer will (i) comply with the applicable CARB certification executive order within the volatile organic compound emissions control areas specified in 9VAC5-45-160 C and (ii) comply with any additional terms and conditions that the board may specify in granting certification under this subsection.

d. Manufacturer and product information as specified in subdivisions B 1 a and b of this section.

e. The document certification statement required by 9VAC5-20-230 certifying the information in the application and signed by a responsible official.

3. The board's certification shall contain such terms and conditions as necessary to adapt terms and conditions in the CARB certification executive order to satisfy the provisions of this article.

4. Any board certification granted under this subsection is contingent upon the effective CARB certification executive order provided with the application. Board certification granted on the basis of this subsection automatically expires on the date that the CARB certification executive order upon which it was based is no longer effective.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-210. Innovative products.

Manufacturers of portable fuel containers or spouts may seek an innovative products exemption in accordance with the following criteria:

1. The board will exempt a portable fuel container or spout from one or more of the requirements specified in 9VAC5-45-190 if a manufacturer demonstrates by clear and convincing evidence that, due to some characteristic of the product formulation, design, delivery systems, or other factors, the use of the product will result in cumulative VOC emissions below the highest emitting representative spill-proof system or representative spill-proof spout in its product category as determined from applicable testing.

2. A manufacturer (applicant) shall apply in writing to the board for an innovative product exemption. The application shall include the supporting documentation that quantifies the emissions from the innovative product, including the actual physical test methods used to generate the data. In addition, the applicant must provide the information necessary to enable the board to establish enforceable conditions for granting the exemption. The application shall also include the certification statement required by 9VAC5-20-230 signed by a responsible official. Information submitted by a manufacturer pursuant to this section shall be available to the public except where the owner makes a showing satisfactory to the board under 9VAC5-170-60 B that the information meets the criteria in 9VAC5-170-60 C, in which case the information shall be handled in accordance with the procedures specified in §§ 10.1-1314 and 10.1-1314.1 of the Air Pollution Control Law of Virginia.

3. Within 30 days of receipt of the exemption application, the board will determine whether an application is complete.

4. Within 90 days after an application has been deemed complete, the board will determine whether, under what conditions, and to what extent an exemption from the requirements of 9VAC5-45-190 will be permitted. The board may extend this time period if additional time is needed to reach a decision. An applicant may submit additional supporting documentation before a decision has been reached. The board will notify the applicant of the decision in writing and specify such terms and conditions as are necessary to insure that emissions from the product will meet the emissions reductions specified in subdivision 1 of this section, and that such emissions reductions can be enforced.

5. In granting an innovative product exemption for a portable fuel container or spout, the board will specify the test methods for determining conformance to the conditions established pursuant to subdivision 4 of this section. The test methods may include criteria for reproducibility, accuracy, and sampling and laboratory procedures.

6. For any portable fuel container or spout for which an innovative product exemption has been granted pursuant to this section, the manufacturer shall notify the board in writing at least 30 days before the manufacturer changes a product's design, delivery system, or other factors that may effect the VOC emissions during recommended usage. The manufacturer shall also notify the board within 30 days after the manufacturer learns of any information that would alter the emissions estimates submitted to the board in support of the exemption application.

7. If the standards specified in 9VAC5-45-190 are amended for a product category, all innovative product exemptions granted for products in the product category, except as provided in subdivision 8 of this subsection, have no force and effect as of the effective date of the amended standards.

8. If the board believes that a portable fuel container or spout for which an exemption has been granted no longer meets the criteria for an innovative product specified in subdivision 1 of this section, the board may modify or revoke the exemption as necessary to assure that the product will meet these criteria.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-220. Administrative requirements.

A. Each manufacturer of a portable fuel container subject to and complying with 9VAC5-45-190 shall clearly display on each spill-proof system:

1. The phrase "Spill-Proof System";

2. A date of manufacture or representative date code; and

3. A representative code identifying either:

a. The portable fuel container as subject to and complying with 9VAC5-45-190; or

b. The effective CARB certification executive order issued for the portable fuel container.

B. Each manufacturer of a spout subject to and complying with 9VAC5-45-190 shall clearly display on the accompanying package, or for spill-proof spouts sold without packaging, on either the spill-proof spout or a label affixed thereto:

1. The phrase "Spill-Proof Spout";

2. A date of manufacture or representative date code; and

3. A representative code identifying either:

a. The spout as subject to and complying with 9VAC5-45-190; or

b. The effective CARB certification executive order issued for the spout.

C. Each manufacturer subject to subsection A or B shall file an explanation of both the date code and representative code with the board no later than the later of three months after the effective date of this article or within three months of production, and within three months after any change in coding.

D. Each manufacturer of a spout subject to subsection B of this section shall clearly display the make, model number, and size of those portable fuel containers the spout is designed to accommodate and for which the manufacturer can demonstrate the container's compliance with 9VAC5-45-190 on the accompanying package, or for spill-proof spouts sold without packaging, on either the spill-proof spout or a label affixed thereto.

E. Manufacturers of portable fuel containers not subject to or not in compliance with 9VAC5-45-190 may not display the phrase "Spill-Proof System" or "Spill-Proof Spout" on the portable fuel container or spout or on any sticker or label affixed thereto or on any accompanying package.

F. Each manufacturer of a portable fuel container or spout subject to and complying with 9VAC5-45-190 that due to its design or other features cannot be used to refuel on-road motor vehicles shall clearly display the phrase "Not Intended For Refueling On-Road Motor Vehicles" in type of 34 point or greater on each of the following:

1. For a portable fuel container sold as a spill-proof system, on the system or on a label affixed thereto, and on the accompanying package, if any; and

2. For a spill-proof spout sold separately from a spill-proof system, on either the spill-proof spout, or a label affixed thereto, and on the accompanying package, if any.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-230. Compliance.

The provisions of subsections B, D, F, and G of 9VAC5-45-20 (Compliance) apply. The other provisions of 9VAC5-45-20 do not apply.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-240. Compliance schedules.

A. Affected persons shall comply with the provisions of this article as expeditiously as possible but in no case later than:

1. August 1, 2010, in the Northern Virginia and Fredericksburg VOC Emissions Control Areas; or

2. March 1, 2014, in the Richmond VOC Emissions Control Area.

B. Any owner or other person who cannot comply with the provisions of this article by the date specified in subsection A of this section, due to extraordinary reasons beyond that person's reasonable control, may apply in writing to the board for a waiver. The waiver application shall set forth:

1. The specific grounds upon which the waiver is sought, including the facts that support the extraordinary reasons that compliance is beyond the applicant's reasonable control;

2. The proposed date by which compliance with the provisions of this article will be achieved; and

3. A compliance report detailing the methods by which compliance will be achieved.

C. No waiver may be granted unless all of the following findings are made:

1. That, due to reasons beyond the reasonable control of the applicant, required compliance with this article would result in extraordinary economic hardship;

2. That the public interest in mitigating the extraordinary hardship to the applicant by issuing the waiver outweighs the public interest in avoiding any increased emissions of air contaminants that would result from issuing the waiver; and

3. That the compliance report proposed by the applicant can reasonably be implemented and shall achieve compliance as expeditiously as possible.

D. Any approval of a waiver shall specify a final compliance date by which compliance with the requirements of this article shall be achieved. Any approval of a waiver shall contain a condition that specifies the increments of progress necessary to assure timely compliance and such other conditions that the board finds necessary to carry out the purposes of this article.

E. A waiver shall cease to be effective upon the failure of the party to whom the waiver was granted to comply with any term or condition of the waiver.

F. Upon the application of any person, the board may review, and for good cause, modify or revoke a waiver from requirements of this article.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-250. Test methods and procedures.

A. The provisions of subsection G of 9VAC5-45-30 (Emission testing) apply. The other provisions of 9VAC5-45-30 do not apply.

B. Testing to determine compliance with 9VAC5-45-190 B of this article shall be performed by using the following test procedures specified in CARB "Certification Procedure 501 for Portable Fuel Containers and Spill-Proof Spouts, CP-501" (see 9VAC5-20-21):

1. CARB "Test Procedure for Determining Integrity of Spill-Proof Spouts and Spill-Proof Systems, TP-501" (see 9VAC5-20-21).

2. CARB "Test Procedure for Determining Diurnal Emissions from Portable Fuel Containers, TP-502" (see 9VAC5-20-21).

3. ASTM "Standard Specification for Portable Kerosine and Diesel Containers for Consumer Use" (see 9VAC5-20-21).

4. ASTM "Standard Specification for Portable Gasoline Containers for Consumer Use" (see 9VAC5-20-21).

C. Alternative methods that are shown to be accurate, precise, and appropriate may be used upon written approval of the board.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-260. Monitoring.

The provisions of 9VAC5-45-40 (Monitoring) do not apply.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-270. Notification, records and reporting.

The provisions of subsections E, F, and G of 9VAC5-45-50 (Notification, records and reporting) apply. The other provisions of 9VAC5-45-50 do not apply.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

Article 3
Emission Standards for Consumer Products Manufactured before August 1, 2010

9VAC5-45-280. Applicability.

A. Except as provided in 9VAC5-45-290, the provisions of this article apply to any consumer product manufactured before August 1, 2010, that contains volatile organic compounds (VOCs). The provisions of Article 4 (9VAC5-45-400 et seq.) of this part apply to consumer products manufactured on or after August 1, 2010.

B. Except as provided in 9VAC5-45-290, the provisions of this article apply to any owner or other person who sells, supplies, offers for sale or manufactures for sale any consumer product.

C. The provisions of this article apply to owners and other persons in the Northern Virginia and Fredericksburg Volatile Organic Compound Emissions Control Areas designated in 9VAC5-20-206.

D. For purposes of this article, the terms "supply" or "supplied" do not include internal transactions within a business or governmental entity. These terms only apply to transactions between manufacturers/commercial distributors that sell, or otherwise provide, products to businesses/governmental entities/individuals.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-290. Exemptions.

A. This article shall not apply to any consumer product manufactured in the applicable volatile organic compound emissions control areas designated in 9VAC5-45-280 C for shipment and use outside of those areas.

B. The provisions of this article shall not apply to a manufacturer or distributor who sells, supplies, or offers for sale a consumer product that does not comply with the VOC standards specified in 9VAC5-45-310 A, as long as the manufacturer or distributor can demonstrate both that the consumer product is intended for shipment and use outside of the applicable volatile organic compound emissions control areas designated in 9VAC5-45-280 C, and that the manufacturer or distributor has taken reasonable prudent precautions to assure that the consumer product is not distributed to those applicable volatile organic compound emissions control areas. This subsection does not apply to consumer products that are sold, supplied, or offered for sale by any person to retail outlets in those applicable volatile organic compound emissions control areas.

C. The medium volatility organic compound (MVOC) content standards specified in 9VAC5-45-310 A for antiperspirants or deodorants shall not apply to ethanol.

D. The VOC limits specified in 9VAC5-45-310 A shall not apply to fragrances up to a combined level of 2.0% by weight contained in any consumer product and shall not apply to colorants up to a combined level of 2.0% by weight contained in any antiperspirant or deodorant.

E. The requirements of 9VAC5-45-310 A for antiperspirants or deodorants shall not apply to those volatile organic compounds that contain more than 10 carbon atoms per molecule and for which the vapor pressure is unknown, or that have a vapor pressure of 2 mm Hg or less at 20°C.

F. The VOC limits specified in 9VAC5-45-310 A shall not apply to any LVP-VOC.

G. The VOC limits specified in 9VAC5-45-310 A shall not apply to air fresheners that are composed entirely of fragrance, less compounds not defined as VOCs or LVP-VOC exempted under subsection F of this section.

H. The VOC limits specified in 9VAC5-45-310 A shall not apply to air fresheners and insecticides containing at least 98% paradichlorobenzene.

I. The VOC limits specified in 9VAC5-45-310 A shall not apply to adhesives sold in containers of one fluid ounce or less.

J. The VOC limits specified in 9VAC5-45-310 A shall not apply to bait station insecticides. For the purpose of this section, bait station insecticides are containers enclosing an insecticidal bait that is not more than 0.5 ounce by weight, where the bait is designed to be ingested by insects and is composed of solid material feeding stimulants with less than 5.0% active ingredients.

K. A person who cannot comply with the requirements set forth in 9VAC5-45-310, because of extraordinary reasons beyond the person's reasonable control may apply in writing to the board for a waiver.

1. The application shall set forth:

a. The specific grounds upon which the waiver is sought, including the facts that support the extraordinary reasons that compliance is beyond the applicant's reasonable control;

b. The proposed dates by which compliance with the provisions of 9VAC5-45-310 will be achieved; and

c. A compliance report reasonably detailing the methods by which compliance will be achieved.

2. Upon receipt of an application containing the information required in subdivision 1 of this subsection, the board will hold a public hearing to determine whether, under what conditions, and to what extent, a waiver from the requirements in 9VAC5-45-310 is necessary and will be permitted. A hearing shall be initiated no later than 75 days after receipt of a waiver application. Notice of the time and place of the hearing shall be sent to the applicant by certified mail not less than 30 days prior to the hearing. Notice of the hearing shall also be submitted for publication in the Virginia Register of Regulations. At least 30 days prior to the hearing, the waiver application shall be made available to the public for inspection. Information submitted to the board by a waiver applicant shall be available to the public except where the owner makes a showing satisfactory to the board under 9VAC5-170-60 B that the information meets the criteria in 9VAC5-170-60 C, in which case the information shall be handled in accordance with the procedures specified in §§ 10.1-1314 and 10.1-1314.1 of the Air Pollution Control Law of Virginia. The board may consider both public and confidential information in reaching a decision on a waiver application. Interested members of the public shall be allowed a reasonable opportunity to testify at the hearing and their testimony shall be considered.

3. No waiver shall be granted unless all of the following findings are made:

a. That, because of reasons beyond the reasonable control of the applicant, requiring compliance with 9VAC5-45-310 would result in extraordinary economic hardship;

b. That the public interest in mitigating the extraordinary hardship to the applicant by issuing the waiver outweighs the public interest in avoiding any increased emissions of air pollutants that would result from issuing the waiver; and

c. That the compliance report proposed by the applicant can reasonably be implemented and will achieve compliance as expeditiously as possible.

4. Any waiver may be issued as an order of the board. The waiver order shall specify a final compliance date by which the requirements of 9VAC5-45-310 will be achieved. Any waiver order shall contain a condition that specifies increments of progress necessary to assure timely compliance and such other conditions that the board, in consideration of the testimony received at the hearing, finds necessary to carry out the purposes of the Virginia Air Pollution Control Law and the regulations of the board.

5. A waiver shall cease to be effective upon failure of the party to whom the waiver was granted to comply with any term or condition of the waiver order.

6. Upon the application of anyone, the board may review and for good cause modify or revoke a waiver from requirements of 9VAC5-45-310.

L. The requirements of 9VAC5-45-340 A shall not apply to consumer products registered under FIFRA.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-300. Definitions.

A. For the purpose of applying this article in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meanings given them in subsection C of this section.

B. As used in this article, all terms not defined herein shall have the meanings given them in 9VAC5-10 (General Definitions), unless otherwise required by context.

C. Terms defined.

"ACP" or "alternative control plan" means any emissions averaging program approved by the board pursuant to the provisions of this article.

"ACP agreement" means the document signed by the board that includes the conditions and requirements of the board and that allows manufacturers to sell ACP products pursuant to the requirements of this article.

"ACP emissions" means the sum of the VOC emissions from every ACP product subject to an ACP agreement approving an ACP, during the compliance period specified in the ACP agreement, expressed to the nearest pound of VOC and calculated according to the following equation:

http://leg5.state.va.us/images/432466490167DEQGG_files/image001.gif

http://leg5.state.va.us/images/432466490167DEQGG_files/image002.gif

where:

1, 2,...N = each product in an ACP up to the maximum N.

Enforceable sales = (see definition in this section).

VOC content = one of the following:

1. For all products except for charcoal lighter material products:

http://leg5.state.va.us/images/432466490167DEQGG_files/image003.gif

where:

A = total net weight of unit (excluding container and packaging).

B = total weight of all VOCs per unit.

C = total weight of all exempted VOCs per unit, as specified in 9VAC5-45-290.

2. For charcoal lighter material products only:

http://leg5.state.va.us/images/432466490167DEQGG_files/image004.gif

where:

Certified emissions = (see definition in this section).

Certified use rate = (see definition in this section).

"ACP limit" means the maximum allowable ACP emissions during the compliance period specified in an ACP agreement approving an ACP, expressed to the nearest pound of VOC and calculated according to the following equation:

http://leg5.state.va.us/images/432466490167DEQGG_files/image005.gif

where:

http://leg5.state.va.us/images/432466490167DEQGG_files/image006.gif

where:

Enforceable sales = (see definition in this section).

ACP standard = (see definition in this section).

1, 2,...N = each product in an ACP up to the maximum N.

"ACP product" means any consumer product subject to the VOC standards specified in 9VAC5-45-310 A, except those products that have been exempted as innovative products under 9VAC5-45-330.

"ACP reformulation" or "ACP reformulated" means the process of reducing the VOC content of an ACP product within the period that an ACP is in effect to a level that is less than the current VOC content of the product.

"ACP standard" means either the ACP product's pre-ACP VOC content or the applicable VOC standard specified in 9VAC5-45-310 A, whichever is the lesser of the two.

"ACP VOC standard" means the maximum allowable VOC content for an ACP product, determined as follows:

1. The applicable VOC standard specified in 9VAC5-45-310 A for all ACP products except for charcoal lighter material;

2. For charcoal lighter material products only, the VOC standard for the purposes of this article shall be calculated according to the following equation:

http://leg5.state.va.us/images/432466490167DEQGG_files/image007.gif

where:

0.020 = the certification emissions level for the product, as specified in 9VAC5-45-310 F.

Certified use rate = (see definition in this section).

"Adhesive" means any product that is used to bond one surface to another by attachment. Adhesive does not include products used on humans and animals, adhesive tape, contact paper, wallpaper, shelf liners, or any other product with an adhesive incorporated onto or in an inert substrate. For contact adhesive only, adhesive also does not include units of product, less packaging, that consist of more than one gallon. In addition, for construction, panel, and floor covering adhesive and general purpose adhesive only, adhesive does not include units of product, less packaging, that weigh more than one pound and consist of more than 16 fluid ounces. The package size limitations do not apply to aerosol adhesives.

"Adhesive remover" means a product designed to remove adhesive from either a specific substrate or a variety of substrates. Adhesive remover does not include products that remove adhesives intended exclusively for use on humans or animals. For the purpose of this definition, adhesive shall mean a substance used to bond one or more materials. Adhesives include, but are not limited to, caulks, sealants, glues, or similar substances used for the purpose of forming a bond.

"Aerosol adhesive" means an aerosol product in which the spray mechanism is permanently housed in a nonrefillable can designed for hand-held application without the need for ancillary hoses or spray equipment. Aerosol adhesives include special purpose spray adhesives, mist spray adhesives, and web spray adhesives.

"Aerosol cooking spray" means any aerosol product designed either to reduce sticking on cooking and baking surfaces or to be applied on food, or both.

"Aerosol product" means a pressurized spray system that dispenses product ingredients by means of a propellant contained in a product or a product's carrier, or by means of a mechanically induced force. Aerosol product does not include pump sprays.

"Agricultural use" means the use of any pesticide or method or device for the control of pests in connection with the commercial production, storage, or processing of any animal or plant crop. Agricultural use does not include the sale or use of pesticides in properly labeled packages or containers that are intended for home use, use in structural pest control, industrial use, or institutional use. For the purposes of this definition only:

1. "Home use" means use in a household or its immediate environment.

2. "Industrial use" means use for or in a manufacturing, mining, or chemical process or use in the operation of factories, processing plants, and similar sites.

3. "Institutional use" means use within the perimeter of, or on property necessary for the operation of, buildings such as hospitals, schools, libraries, auditoriums, and office complexes.

4. "Structural pest control" means a use requiring a license under the applicable state pesticide licensing requirement.

"Air freshener" means any consumer product including, but not limited to, sprays, wicks, powders, and crystals, designed for the purpose of masking odors or freshening, cleaning, scenting, or deodorizing the air. Air fresheners do not include products that are used on the human body, products that function primarily as cleaning products (as indicated on a product label), disinfectant products claiming to deodorize by killing germs on surfaces, or institutional or industrial disinfectants when offered for sale solely through institutional and industrial channels of distribution. Air fresheners do include spray disinfectants and other products that are expressly represented for use as air fresheners, except institutional and industrial disinfectants when offered for sale through institutional and industrial channels of distribution. To determine whether a product is an air freshener, all verbal and visual representations regarding product use on the label or packaging and in the product's literature and advertising may be considered. The presence of, and representations about, a product's fragrance and ability to deodorize (resulting from surface application) shall not constitute a claim of air freshening.

"All other carbon-containing compounds" means all other compounds that contain at least one carbon atom and are not an "exempt compound" or an "LVP-VOC."

"All other forms" means all consumer product forms for which no form-specific VOC standard is specified. Unless specified otherwise by the applicable VOC standard, all other forms include, but are not limited to, solids, liquids, wicks, powders, crystals, and cloth or paper wipes (towelettes).

"Alternative control plan" or "ACP" means any emissions averaging program approved by the board pursuant to the provisions of this article.

"Antimicrobial hand or body cleaner or soap" means a cleaner or soap that is designed to reduce the level of microorganisms on the skin through germicidal activity. Antimicrobial hand or body cleaner or soap includes, but is not limited to, antimicrobial hand or body washes or cleaners, food handler hand washes, healthcare personnel hand washes, pre-operative skin preparations, and surgical scrubs. Antimicrobial hand or body cleaner or soap does not include prescription drug products, antiperspirants, astringent or toner, deodorant, facial cleaner or soap, general-use hand or body cleaner or soap, hand dishwashing detergent (including antimicrobial), heavy-duty hand cleaner or soap, medicated astringent or medicated toner, and rubbing alcohol.

"Antiperspirant" means any product including, but not limited to, aerosols, roll-ons, sticks, pumps, pads, creams, and squeeze-bottles, that is intended by the manufacturer to be used to reduce perspiration in the human axilla by at least 20% in at least 50% of a target population.

"Architectural coating" means a coating applied to stationary structures and their appurtenances, to mobile homes, to pavements, or to curbs.

"ASTM" means the American Society for Testing and Materials.

"Astringent or toner" means any product not regulated as a drug by the United States Food and Drug Administration that is applied to the skin for the purpose of cleaning or tightening pores. This category also includes clarifiers and substrate-impregnated products. This category does not include any hand, face, or body cleaner or soap product, medicated astringent or medicated toner, cold cream, lotion, or antiperspirant.

"Automotive brake cleaner" means a cleaning product designed to remove oil, grease, brake fluid, brake pad material, or dirt from motor vehicle brake mechanisms.

"Automotive hard paste wax" means an automotive wax or polish that is:

1. Designed to protect and improve the appearance of automotive paint surfaces;

2. A solid at room temperature; and

3. Contains no water.

"Automotive instant detailer" means a product designed for use in a pump spray that is applied to the painted surface of automobiles and wiped off prior to the product being allowed to dry.

"Automotive rubbing or polishing compound" means a product designed primarily to remove oxidation, old paint, scratches or swirl marks, and other defects from the painted surfaces of motor vehicles without leaving a protective barrier.

"Automotive wax, polish, sealant, or glaze" means a product designed to seal out moisture, increase gloss, or otherwise enhance a motor vehicle's painted surfaces. Automotive wax, polish, sealant, or glaze includes, but is not limited to, products designed for use in auto body repair shops and drive-through car washes, as well as products designed for the general public. Automotive wax, polish, sealant, or glaze does not include automotive rubbing or polishing compounds, automotive wash and wax products, surfactant-containing car wash products, and products designed for use on unpainted surfaces such as bare metal, chrome, glass, or plastic.

"Automotive windshield washer fluid" means any liquid designed for use in a motor vehicle windshield washer system either as an antifreeze or for the purpose of cleaning, washing, or wetting the windshield. Automotive windshield washer fluid also includes liquids that are (i) packaged as a pre-wetted, single-use manual wipe and (ii) designed exclusively for cleaning, washing, or wetting automotive glass surfaces for the purpose of restoring or maintaining visibility for the driver. Glass cleaners that are intended for use on other glass surfaces are not included in this definition. Automotive windshield washer fluid does not include fluids placed by the manufacturer in a new vehicle.

"Bathroom and tile cleaner" means a product designed to clean tile or surfaces in bathrooms. Bathroom and tile cleaners do not include products designed primarily to clean toilet bowls or toilet tanks.

"Bug and tar remover" means a product labeled to remove either or both of the following from painted motor vehicle surfaces without causing damage to the finish: (i) biological residues, such as insect carcasses and tree sap, and (ii) road grime, such as road tar, roadway paint markings, and asphalt.

"CARB" means the California Air Resources Board.

"Carburetor or fuel-injection air intake cleaner " means a product designed to remove fuel deposits, dirt, or other contaminants from a carburetor, choke, throttle body of a fuel-injection system, or associated linkages. Carburetor or fuel-injection air intake cleaner does not include products designed exclusively to be introduced directly into the fuel lines or fuel storage tank prior to introduction into the carburetor or fuel injectors.

"Carpet and upholstery cleaner" means a cleaning product designed for the purpose of eliminating dirt and stains on rugs, carpeting, and the interior of motor vehicles or on household furniture or objects upholstered or covered with fabrics such as wool, cotton, nylon, or other synthetic fabrics. Carpet and upholstery cleaners include, but are not limited to, products that make fabric protectant claims. Carpet and upholstery cleaners do not include general purpose cleaners, spot removers, vinyl or leather cleaners, dry cleaning fluids, or products designed exclusively for use at industrial facilities engaged in furniture or carpet manufacturing.

"Certified emissions" means the emissions level for products approved under 9VAC5-45-310 F, as determined pursuant to South Coast Air Quality Management District Rule 1174 Ignition Method Compliance Certification Protocol (see 9VAC5-20-21), expressed to the nearest 0.001 pound VOC per start.

"Certified use rate" means the usage level for products approved under 9VAC5-45-310 F, as determined pursuant to South Coast Air Quality Management District Rule 1174 Ignition Method Compliance Certification Protocol (see 9VAC5-20-21), expressed to the nearest 0.001 pound certified product used per start.

"Charcoal lighter material" means any combustible material designed to be applied on, incorporated in, added to, or used with charcoal to enhance ignition. Charcoal lighter material does not include any of the following:

1. Electrical starters and probes;

2. Metallic cylinders using paper tinder;

3. Natural gas;

4. Propane; or

5. Fat wood.

"Colorant" means any pigment or coloring material used in a consumer product for an aesthetic effect or to dramatize an ingredient.

"Compliance period" means the period of time, not to exceed one year, for which the ACP limit and ACP emissions are calculated and for which compliance with the ACP limit is determined, as specified in the ACP agreement approving an ACP.

"Construction, panel, and floor covering adhesive" means any one-component adhesive that is designed exclusively for the installation, remodeling, maintenance, or repair of:

1. Structural and building components that include, but are not limited to, beams, trusses, studs, paneling (drywall or drywall laminates, fiberglass reinforced plastic (FRP), plywood, particle board, insulation board, predecorated hardboard or tileboard, etc.), ceiling and acoustical tile, molding, fixtures, countertops or countertop laminates, cove or wall bases, and flooring or subflooring; or

2. Floor or wall coverings that include, but are not limited to, wood or simulated wood covering, carpet, carpet pad or cushion, vinyl-backed carpet, flexible flooring material, nonresilient flooring material, mirror tiles and other types of tiles, and artificial grass.

Construction, panel, and floor covering adhesive does not include floor seam sealer.

"Consumer" means a person who purchases or acquires a consumer product for personal, family, household, or institutional use. Persons acquiring a consumer product for resale are not consumers for that product.

"Consumer product" means a chemically formulated product used by household and institutional consumers including, but not limited to, detergents; cleaning compounds; polishes; floor finishes; cosmetics; personal care products; home, lawn, and garden products; disinfectants; sanitizers; aerosol paints; and automotive specialty products, but does not include other paint products, furniture coatings, or architectural coatings. As used in this article, consumer products shall also refer to aerosol adhesives, including aerosol adhesives used for consumer, industrial, or commercial uses.

"Contact adhesive" means an adhesive that:

1. Is designed for application to both surfaces to be bonded together;

2. Is allowed to dry before the two surfaces are placed in contact with each other;

3. Forms an immediate bond that is impossible, or difficult, to reposition after both adhesive-coated surfaces are placed in contact with each other; and

4. Does not need sustained pressure or clamping of surfaces after the adhesive-coated surfaces have been brought together using sufficient momentary pressure to establish full contact between both surfaces.

Contact adhesive does not include rubber cements that are primarily intended for use on paper substrates. Contact adhesive also does not include vulcanizing fluids that are designed and labeled for tire repair only.

"Contact person" means a representative that has been designated by the responsible ACP party for the purpose of reporting or maintaining information specified in the ACP agreement approving an ACP.

"Container or packaging" means the part or parts of the consumer or institutional product that serve only to contain, enclose, incorporate, deliver, dispense, wrap, or store the chemically formulated substance or mixture of substances that is solely responsible for accomplishing the purposes for which the product was designed or intended. Containers or packaging include any article onto or into which the principal display panel and other accompanying literature or graphics are incorporated, etched, printed, or attached.

"Crawling bug insecticide" means an insecticide product that is designed for use against ants, cockroaches, or other household crawling arthropods, including, but not limited to, mites, silverfish, or spiders. Crawling bug insecticide does not include products designed to be used exclusively on humans or animals or a house dust mite product. For the purposes of this definition only:

1. "House dust mite product" means a product whose label, packaging, or accompanying literature states that the product is suitable for use against house dust mites, but does not indicate that the product is suitable for use against ants, cockroaches, or other household crawling arthropods.

2. "House dust mite" means mites that feed primarily on skin cells shed in the home by humans and pets and that belong to the phylum Arthropoda, the subphylum Chelicerata, the class Arachnida, the subclass Acari, the order Astigmata, and the family Pyroglyphidae.

"Date-code" means the day, month, and year on which the consumer product was manufactured, filled, or packaged, or a code indicating such a date.

"Deodorant" means any product that is intended by the manufacturer to be used to minimize odor in the human axilla by retarding the growth of bacteria that cause the decomposition of perspiration. Deodorant includes, but is not limited to, aerosols, roll-ons, sticks, pumps, pads, creams, and squeeze-bottles.

"Device" means an instrument or contrivance (other than a firearm) that is designed for trapping, destroying, repelling, or mitigating a pest or other form of plant or animal life (other than human and other than bacterium, virus, or another microorganism on or in living humans or other living animals); but not including equipment used for the application of pesticides when sold separately therefrom.

"Disinfectant" means a product intended to destroy or irreversibly inactivate infectious or other undesirable bacteria, pathogenic fungi, or viruses on surfaces or inanimate objects and whose label is registered under the FIFRA. Disinfectant does not include any of the following:

1. Products designed solely for use on humans or animals;

2. Products designed for agricultural use;

3. Products designed solely for use in swimming pools, therapeutic tubs, or hot tubs; or

4. Products that, as indicated on the principal display panel or label, are designed primarily for use as bathroom and tile cleaners, glass cleaners, general purpose cleaners, toilet bowl cleaners, or metal polishes.

"Distributor" means a person to whom a consumer product is sold or supplied for the purposes of resale or distribution in commerce, except that manufacturers, retailers, and consumers are not distributors.

"Double phase aerosol air freshener" means an aerosol air freshener with the liquid contents in two or more distinct phases that require the product container to be shaken before use to mix the phases, producing an emulsion.

"Dry cleaning fluid" means a nonaqueous liquid product designed and labeled exclusively for use on:

1. Fabrics that are labeled "for dry clean only," such as clothing or drapery; or

2. S-coded fabrics.

Dry cleaning fluid includes, but is not limited to, those products used by commercial dry cleaners and commercial businesses that clean fabrics such as draperies at the customer's residence or work place. Dry cleaning fluid does not include spot remover or carpet and upholstery cleaner. For the purposes of this definition, "S-coded fabric" means an upholstery fabric designed to be cleaned only with water-free spot cleaning products as specified by the American Furniture Manufacturers Association Joint Industry Fabrics Standards Committee, Woven and Knit Residential Upholstery Fabric Standards and Guidelines (see 9VAC5-20-21).

"Dusting aid" means a product designed to assist in removing dust and other soils from floors and other surfaces without leaving a wax or silicone-based coating. Dusting aid does not include pressurized gas dusters.

"Electronic cleaner" means a product labeled for the removal of dirt, grease, or grime from electrical equipment such as electric motors, circuit boards, electricity panels, and generators.

"Enforceable sales" means the total amount of an ACP product sold for use in the applicable volatile organic compound emissions control areas designated in 9VAC5-45-280 C during the applicable compliance period specified in the ACP agreement approving an ACP, as determined through enforceable sales records (expressed to the nearest pound, excluding product container and packaging).

"Enforceable sales record" means a written, point-of-sale record or another board-approved system of documentation from which the mass, in pounds (less product container and packaging), of an ACP product sold to the end user in the applicable volatile organic compound emissions control areas designated in 9VAC5-45-280 C during the applicable compliance period can be accurately documented. For the purposes of this article, enforceable sales records include, but are not limited to, the following types of records:

1. Accurate records of direct retail or other outlet sales to the end user during the applicable compliance period;

2. Accurate compilations, made by independent market surveying services, of direct retail or other outlet sales to the end users for the applicable compliance period, provided that a detailed method that can be used to verify data composing such summaries is submitted by the responsible ACP party and approved by the board; and

3. Other accurate product sales records acceptable to the board.

"Engine degreaser" means a cleaning product designed to remove grease, grime, oil, and other contaminants from the external surfaces of engines and other mechanical parts.

"Exempt compound" means acetone, ethane, methyl acetate, parachlorobenzotrifluoride (1-chloro-4-trifluoromethyl benzene), or perchloroethylene (tetrachloroethylene).

"Fabric protectant" means a product designed to be applied to fabric substrates to protect the surface from soiling from dirt and other impurities or to reduce absorption of liquid into the fabric's fibers. Fabric protectant does not include waterproofers, products designed for use solely on leather, or products designed for use solely on fabrics that are labeled "for dry clean only" and sold in containers of 10 fluid ounces or less.

"Facial cleaner or soap" means a cleaner or soap designed primarily to clean the face. Facial cleaner or soap includes, but is not limited to, facial cleansing creams, gels, liquids, lotions, and substrate-impregnated forms. Facial cleaner or soap does not include prescription drug products, antimicrobial hand or body cleaner or soap, astringent or toner, general-use hand or body cleaner or soap, medicated astringent or medicated toner, or rubbing alcohol.

"Fat wood" means pieces of wood kindling with high naturally-occurring levels of sap or resin that enhance ignition of the kindling. Fat wood does not include kindling with substances added to enhance flammability, such as wax-covered or wax-impregnated wood-based products.

"FIFRA" means the Federal Insecticide, Fungicide, and Rodenticide Act (7 USC § 136-136y).

"Flea and tick insecticide" means an insecticide product that is designed for use against fleas, ticks, their larvae, or their eggs. Flea and tick insecticide does not include products that are designed to be used exclusively on humans or animals and their bedding.

"Flexible flooring material" means asphalt, cork, linoleum, no-wax, rubber, seamless vinyl, and vinyl composite flooring.

"Floor polish or wax" means a wax, polish, or other product designed to polish, protect, or enhance floor surfaces by leaving a protective coating that is designed to be periodically replenished. Floor polish or wax does not include spray buff products, products designed solely for the purpose of cleaning floors, floor finish strippers, products designed for unfinished wood floors, and coatings subject to architectural coatings regulations.

"Floor seam sealer" means a product designed and labeled exclusively for bonding, fusing, or sealing (coating) seams between adjoining rolls of installed flexible sheet flooring.

"Floor wax stripper" means a product designed to remove natural or synthetic floor polishes or waxes through breakdown of the polish or wax polymers or by dissolving or emulsifying the polish or wax. Floor wax stripper does not include aerosol floor wax strippers or products designed to remove floor wax solely through abrasion.

"Flying bug insecticide" means an insecticide product that is designed for use against flying insects or other flying arthropods, including but not limited to flies, mosquitoes, moths, or gnats. Flying bug insecticide does not include wasp and hornet insecticide, products that are designed to be used exclusively on humans or animals, or a moth-proofing product. For the purposes of this definition only, "moth-proofing product" means a product whose label, packaging, or accompanying literature indicates that the product is designed to protect fabrics from damage by moths, but does not indicate that the product is suitable for use against flying insects or other flying arthropods.

"Fragrance" means a substance or complex mixture of aroma chemicals, natural essential oils, and other functional components, the sole purpose of which is to impart an odor or scent, or to counteract a malodor.

"Furniture coating" means a paint designed for application to room furnishings including, but not limited to, cabinets (kitchen, bath and vanity), tables, chairs, beds, and sofas.

"Furniture maintenance product" means a wax, polish, conditioner, or other product designed for the purpose of polishing, protecting, or enhancing finished wood surfaces other than floors. Furniture maintenance products do not include dusting aids, products designed solely for the purpose of cleaning, and products designed to leave a permanent finish such as stains, sanding sealers, and lacquers.

"Gel" means a colloid in which the disperse phase has combined with the continuous phase to produce a semisolid material, such as jelly.

"General purpose adhesive" means a nonaerosol adhesive designed for use on a variety of substrates. General purpose adhesive does not include:

1. Contact adhesives;

2. Construction, panel, and floor covering adhesives;

3. Adhesives designed exclusively for application on one specific category of substrates (i.e., substrates that are composed of similar materials, such as different types of metals, paper products, ceramics, plastics, rubbers, or vinyls); or

4. Adhesives designed exclusively for use on one specific category of articles (i.e., articles that may be composed of different materials but perform a specific function, such as gaskets, automotive trim, weather-stripping, or carpets).

"General purpose cleaner" means a product designed for general all-purpose cleaning, in contrast to cleaning products designed to clean specific substrates in certain situations. General purpose cleaner includes products designed for general floor cleaning, kitchen or countertop cleaning, and cleaners designed to be used on a variety of hard surfaces and does not include general purpose degreasers and electronic cleaners.

"General purpose degreaser" means a product labeled to remove or dissolve grease, grime, oil, and other oil-based contaminants from a variety of substrates, including automotive or miscellaneous metallic parts. General purpose degreaser does not include engine degreaser, general purpose cleaner, adhesive remover, electronic cleaner, metal polish or cleanser, products used exclusively in solvent cleaning tanks or related equipment, or products that are (i) sold exclusively to establishments that manufacture or construct goods or commodities; and (ii) labeled "not for retail sale." Solvent cleaning tanks or related equipment includes, but is not limited to, cold cleaners, vapor degreasers, conveyorized degreasers, film cleaning machines, or products designed to clean miscellaneous metallic parts by immersion in a container.

"General-use hand or body cleaner or soap" means a cleaner or soap designed to be used routinely on the skin to clean or remove typical or common dirt and soils. General-use hand or body cleaner or soap includes, but is not limited to, hand or body washes, dual-purpose shampoo-body cleaners, shower or bath gels, and moisturizing cleaners or soaps. General-use hand or body cleaner or soap does not include prescription drug products, antimicrobial hand or body cleaner or soap, astringent or toner, facial cleaner or soap, hand dishwashing detergent (including antimicrobial), heavy-duty hand cleaner or soap, medicated astringent or medicated toner, or rubbing alcohol.

"Glass cleaner" means a cleaning product designed primarily for cleaning surfaces made of glass. Glass cleaner does not include products designed solely for the purpose of cleaning optical materials used in eyeglasses, photographic equipment, scientific equipment, and photocopying machines.

"Gross sales" means the estimated total sales of an ACP product in the applicable volatile organic compound emissions control areas designated in 9VAC5-45-280 C during a specific compliance period (expressed to the nearest pound), based on either of the following methods, whichever the responsible ACP party demonstrates to the satisfaction of the board will provide an accurate sales estimate:

1. Apportionment of national or regional sales of the ACP product to sales, determined by multiplying the average national or regional sales of the product by the fraction of the national or regional population, respectively, that is represented by the current population of the applicable volatile organic compound emissions control areas designated in 9VAC5-45-280 C; or

2. Another documented method that provides an accurate estimate of the total current sales of the ACP product.

"Hair mousse" means a hairstyling foam designed to facilitate styling of a coiffure and provide limited holding power.

"Hair shine" means a product designed for the primary purpose of creating a shine when applied to the hair. Hair shine includes, but is not limited to, dual-use products designed primarily to impart a sheen to the hair. Hair shine does not include hair spray, hair mousse, hair styling gel or spray gel, or products whose primary purpose is to condition or hold the hair.

"Hair spray" means a consumer product designed primarily for the purpose of dispensing droplets of a resin on and into a hair coiffure that will impart sufficient rigidity to the coiffure to establish or retain the style for a period of time.

"Hair styling gel" means a high viscosity, often gelatinous, product that contains a resin and is designed for the application to hair to aid in styling and sculpting of the hair coiffure.

"Heavy-duty hand cleaner or soap" means a product designed to clean or remove difficult dirt and soils such as oil, grease, grime, tar, shellac, putty, printer's ink, paint, graphite, cement, carbon, asphalt, or adhesives from the hand with or without the use of water. Heavy-duty hand cleaner or soap does not include prescription drug products, antimicrobial hand or body cleaner or soap, astringent or toner, facial cleaner or soap, general-use hand or body cleaner or soap, medicated astringent or medicated toner, or rubbing alcohol.

"Herbicide" means a pesticide product designed to kill or retard a plant's growth, but excludes products that are (i) for agricultural use, or (ii) restricted materials that require a permit for use and possession.

"High volatility organic compound" or "HVOC" means a volatile organic compound that exerts a vapor pressure greater than 80 millimeters of mercury (mm Hg) when measured at 20°C.

"Household product" means a consumer product that is primarily designed to be used inside or outside of living quarters or residences that are occupied or intended for occupation by people, including the immediate surroundings.

"Insecticide" means a pesticide product that is designed for use against insects or other arthropods, but excluding products that are:

1. For agricultural use;

2. For a use that requires a structural pest control license under applicable state laws or regulations; or

3. Materials classified for restricted use pursuant to 40 CFR 152.75 and require a pesticide business license from the Virginia Pesticide Control Board pursuant to 2VAC20-40-20 for use and possession.

"Insecticide fogger" means an insecticide product designed to release all or most of its content as a fog or mist into indoor areas during a single application.

"Institutional product" or "industrial and institutional (I&I) product" means a consumer product that is designed for use in the maintenance or operation of an establishment that:

1. Manufactures, transports, or sells goods or commodities, or provides services for profit; or

2. Is engaged in the nonprofit promotion of a particular public, educational, or charitable cause.

Establishments include, but are not limited to, government agencies, factories, schools, hospitals, sanitariums, prisons, restaurants, hotels, stores, automobile service and parts centers, health clubs, theaters, or transportation companies. Institutional product does not include household products and products that are incorporated into or used exclusively in the manufacture or construction of the goods or commodities at the site of the establishment.

"Label" means written, printed, or graphic matter affixed to, applied to, attached to, blown into, formed, molded into, embossed on, or appearing upon a consumer product or consumer product package, for purposes of branding, identifying, or giving information with respect to the product or to the contents of the package.

"Laundry prewash" means a product that is designed for application to a fabric prior to laundering and that supplements and contributes to the effectiveness of laundry detergents or provides specialized performance.

"Laundry starch product" means a product that is designed for application to a fabric, either during or after laundering, to impart and prolong a crisp, fresh look and may also act to help ease ironing of the fabric. Laundry starch product includes, but is not limited to, fabric finish, sizing, and starch.

"Lawn and garden insecticide" means an insecticide product labeled primarily to be used in household lawn and garden areas to protect plants from insects or other arthropods. Notwithstanding the requirements of 9VAC5-45-340 C, aerosol lawn and garden insecticides may claim to kill insects or other arthropods.

"Liquid" means a substance or mixture of substances that is capable of a visually detectable flow as determined under ASTM "Standard Test Method for Determining Whether a Material is a Liquid or a Solid" (see 9VAC5-20-21). Liquid does not include powders or other materials that are composed entirely of solid particles.

"Lubricant" means a product designed to reduce friction, heat, noise, or wear between moving parts, or to loosen rusted or immovable parts or mechanisms. Lubricant does not include automotive power steering fluids; products for use inside power generating motors, engines, and turbines, and their associated power-transfer gearboxes; two-cycle oils or other products designed to be added to fuels; products for use on the human body or animals; or products that are:

1. Sold exclusively to establishments that manufacture or construct goods or commodities; and

2. Labeled "not for retail sale."

"LVP content" means the total weight, in pounds, of LVP-VOC in an ACP product multiplied by 100 and divided by the product's total net weight (in pounds, excluding container and packaging), expressed to the nearest 0.1.

"LVP-VOC" means a chemical compound or mixture that contains at least one carbon atom and meets one of the following:

1. Has a vapor pressure less than 0.1 mm Hg at 20°C, as determined by CARB Method 310 (see 9VAC5-20-21);

2. Is a chemical compound with more than 12 carbon atoms, or a chemical mixture composed solely of compounds with more than 12 carbon atoms, and the vapor pressure is unknown;

3. Is a chemical compound with a boiling point greater than 216°C, as determined by CARB Method 310 (see 9VAC5-20-21); or

4. Is the weight percent of a chemical mixture that boils above 216°C, as determined by CARB Method 310 (see 9VAC5-20-21).

For the purposes of the definition of LVP-VOC, "chemical compound" means a molecule of definite chemical formula and isomeric structure, and "chemical mixture" means a substrate composed of two or more chemical compounds.

"Manufacturer" means a person who imports, manufactures, assembles, produces, packages, repackages, or relabels a consumer product.

"Medicated astringent or medicated toner" means a product regulated as a drug by the United States Food and Drug Administration that is applied to the skin for the purpose of cleaning or tightening pores. Medicated astringent or medicated toner includes, but is not limited to, clarifiers and substrate-impregnated products. Medicated astringent or medicated toner does not include hand, face, or body cleaner or soap products, astringent or toner, cold cream, lotion, antiperspirants, or products that must be purchased with a doctor's prescription.

"Medium volatility organic compound" or "MVOC" means a volatile organic compound that exerts a vapor pressure greater than 2 mm Hg and less than or equal to 80 mm Hg when measured at 20°C.

"Metal polish or cleanser" means a product designed primarily to improve the appearance of finished metal, metallic, or metallized surfaces by physical or chemical action. To "improve the appearance" means to remove or reduce stains, impurities, or oxidation from surfaces or to make surfaces smooth and shiny. Metal polish or cleanser includes, but is not limited to, metal polishes used on brass, silver, chrome, copper, stainless steel, and other ornamental metals. Metal polish or cleanser does not include automotive wax, polish, sealant, or glaze, wheel cleaner, paint remover or stripper, products designed and labeled exclusively for automotive and marine detailing, or products designed for use in degreasing tanks.

"Missing data days" means the number of days in a compliance period for which the responsible ACP party has failed to provide the required enforceable sales or VOC content data to the board, as specified in the ACP agreement.

"Mist spray adhesive" means an aerosol that is not a special purpose spray adhesive and that delivers a particle or mist spray, resulting in the formation of fine, discrete particles that yield a generally uniform and smooth application of adhesive to the substrate.

"Multipurpose dry lubricant" means a lubricant that is:

1. Designed and labeled to provide lubricity by depositing a thin film of graphite, molybdenum disulfide ("moly"), or polytetrafluoroethylene or closely related fluoropolymer ("teflon") on surfaces; and

2. Designed for general purpose lubrication, or for use in a wide variety of applications.

"Multipurpose lubricant" means a lubricant designed for general purpose lubrication, or for use in a wide variety of applications. Multipurpose lubricant does not include multipurpose dry lubricants, penetrants, or silicone-based multipurpose lubricants.

"Multipurpose solvent" means an organic liquid designed to be used for a variety of purposes, including cleaning or degreasing of a variety of substrates, or thinning, dispersing, or dissolving other organic materials. Multipurpose solvent includes solvents used in institutional facilities, except for laboratory reagents used in analytical, educational, research, scientific, or other laboratories. Multipurpose solvent does not include solvents used in cold cleaners, vapor degreasers, conveyorized degreasers or film cleaning machines, or solvents that are incorporated into, or used exclusively in the manufacture or construction of, the goods or commodities at the site of the establishment.

"Nail polish" means a clear or colored coating designed for application to the fingernails or toenails and including but not limited to, lacquers, enamels, acrylics, base coats, and top coats.

"Nail polish remover" means a product designed to remove nail polish and coatings from fingernails or toenails.

"Nonaerosol product" means a consumer product that is not dispensed by a pressurized spray system.

"Noncarbon containing compound" means a compound that does not contain carbon atoms.

"Nonresilient flooring" means flooring of a mineral content that is not flexible. Nonresilient flooring includes but is not limited to terrazzo, marble, slate, granite, brick, stone, ceramic tile, and concrete.

"Nonselective terrestrial herbicide" means a terrestrial herbicide product that is toxic to plants without regard to species.

"One-product business" means a responsible ACP party that sells, supplies, offers for sale, or manufactures for use in the applicable volatile organic compound emissions control areas designated in 9VAC5-45-280 C:

1. Only one distinct ACP product, sold under one product brand name, which is subject to the requirements of 9VAC5-45-310; or

2. Only one distinct ACP product line subject to the requirements of 9VAC5-45-310, in which all the ACP products belong to the same product category and the VOC contents in the products are within 98.0% and 102.0% of the arithmetic mean of the VOC contents over the entire product line.

"Oven cleaner" means a cleaning product designed to clean and to remove dried food deposits from oven walls.

"Paint" means a pigmented liquid, liquefiable, or mastic composition designed for application to a substrate in a thin layer that is converted to an opaque solid film after application and is used for protection, decoration or identification, or to serve some functional purpose such as the filling or concealing of surface irregularities or the modification of light and heat radiation characteristics.

"Paint remover or stripper" means a product designed to strip or remove paints or other related coatings, by chemical action, from a substrate without markedly affecting the substrate. Paint remover or stripper does not include multipurpose solvents, paint brush cleaners, products designed and labeled exclusively to remove graffiti, and hand cleaner products that claim to remove paints and other related coatings from skin.

"Penetrant" means a lubricant designed and labeled primarily to loosen metal parts that have bonded together due to rusting, oxidation, or other causes. Penetrant does not include multipurpose lubricants that claim to have penetrating qualities but are not labeled primarily to loosen bonded parts.

"Pesticide" means and includes a substance or mixture of substances labeled, designed, or intended for use in preventing, destroying, repelling, or mitigating a pest, or a substance or mixture of substances labeled, designed, or intended for use as a defoliant, desiccant, or plant regulator, provided that the term "pesticide" will not include a substance, mixture of substances, or device that the U.S. Environmental Protection Agency does not consider to be a pesticide.

"Pre-ACP VOC content" means the lowest VOC content of an ACP product between January 1, 1990, and the date on which the application for a proposed ACP is submitted to the board, based on the data obtained from accurate records available to the board that yields the lowest VOC content for the product.

"Pressurized gas duster" means a pressurized product labeled to remove dust from a surface solely by means of mass air or gas flow, including surfaces such as photographs, photographic film negatives, computer keyboards, and other types of surfaces that cannot be cleaned with solvents. Pressurized gas duster does not include dusting aids.

"Principal display panel" means that part of a label that is so designed as to most likely be displayed, presented, shown, or examined under normal and customary conditions of display or purchase. Whenever a principal display panel appears more than once, all requirements pertaining to the principal display panel shall pertain to all such principal display panels.

"Product brand name" means the name of the product exactly as it appears on the principal display panel of the product.

"Product category" means the applicable category that best describes the product as listed in this section and in Table 45-3A in 9VAC5-45-310 A.

"Product form," for the purpose of complying with 9VAC5-45-390 (notification, records and reporting) only, means the applicable form that most accurately describes the product's dispensing form as follows:

A = Aerosol Product.

S = Solid.

P = Pump Spray.

L = Liquid.

SS = Semisolid.

O = Other.

"Product line" means a group of products of identical form and function belonging to the same product category.

"Propellant" means a liquefied or compressed gas that is used in whole or in part, such as a cosolvent, to expel a liquid or other material from the same self-pressurized container or from a separate container.

"Pump spray" means a packaging system in which the product ingredients within the container are not under pressure and in which the product is expelled only while a pumping action is applied to a button, trigger, or other actuator.

"Reconcile " or " reconciliation" means to provide sufficient VOC emission reductions to completely offset shortfalls generated under the ACP during an applicable compliance period.

"Reconciliation of shortfalls plan" means the plan to be implemented by the responsible ACP party when shortfalls have occurred, as approved by the board pursuant to 9VAC5-45-320 B 1 g (10).

"Responsible ACP party" means the company, firm, or establishment that is listed on the ACP product's label. If the label lists two or more companies, firms, or establishments, the responsible ACP party is the party that the ACP product was "manufactured for" or "distributed by," as noted on the label.

"Responsible party" means the company, firm, or establishment that is listed on the product's label. If the label lists two companies, firms, or establishments, the responsible party is the party that the product was "manufactured for" or "distributed by," as noted on the label.

"Restricted materials" means pesticides established as restricted materials under Chapter 39 (§ 3.2-3900 et seq.) of Title 3.2 of the Code of Virginia.

"Retail outlet" means an establishment at which consumer products are sold, supplied, or offered for sale directly to consumers.

"Retailer" means a person who sells, supplies, or offers consumer products for sale directly to consumers.

"Roll-on product" means an antiperspirant or deodorant that dispenses active ingredients by rolling a wetted ball or wetted cylinder on the affected area.

"Rubber and vinyl protectant" means a product designed to protect, preserve, or renew vinyl, rubber, and plastic on vehicles, tires, luggage, furniture, and household products such as vinyl covers, clothing, and accessories. Rubber and vinyl protectant does not include products primarily designed to clean the wheel rim, such as aluminum or magnesium wheel cleaners, and tire cleaners that do not leave an appearance-enhancing or protective substance on the tire.

"Rubbing alcohol" means a product containing isopropyl alcohol (also called isopropanol) or denatured ethanol and labeled for topical use, usually to decrease germs in minor cuts and scrapes, to relieve minor muscle aches, as a rubefacient, and for massage.

"Sealant and caulking compound" means a product with adhesive properties that is designed to fill, seal, waterproof, or weatherproof gaps or joints between two surfaces. Sealant and caulking compound does not include roof cements and roof sealants; insulating foams; removable caulking compounds; clear or paintable or water resistant caulking compounds; floor seam sealers; products designed exclusively for automotive uses; or sealers that are applied as continuous coatings. Sealant and caulking compound also does not include units of product, less packaging, which weigh more than one pound and consist of more than 16 fluid ounces. For the purposes of this definition only, "removable caulking compound " means a compound that temporarily seals windows or doors for three- to six-month time intervals; and "clear or paintable or water resistant caulking compound " means a compound that contains no appreciable level of opaque fillers or pigments, transmits most or all visible light through the caulk when cured, is paintable, and is immediately resistant to precipitation upon application.

"Semisolid" means a product that, at room temperature, will not pour, but will spread or deform easily, including, but not limited to gels, pastes, and greases.

"Shaving cream" means an aerosol product that dispenses a foam lather intended to be used with a blade or cartridge razor or other wet-shaving system, in the removal of facial or other bodily hair.

"Shortfall" means the ACP emissions minus the ACP limit when the ACP emissions were greater than the ACP limit during a specified compliance period, expressed to the nearest pound of VOC. Shortfall does not include emissions occurring prior to the date that the ACP agreement approving an ACP is signed by the board.

"Silicone-based multipurpose lubricant" means a lubricant that is:

1. Designed and labeled to provide lubricity primarily through the use of silicone compounds including, but not limited to, polydimethylsiloxane; and

2. Designed and labeled for general purpose lubrication, or for use in a wide variety of applications.

Silicone-based multipurpose lubricant does not include products designed and labeled exclusively to release manufactured products from molds.

"Single phase aerosol air freshener" means an aerosol air freshener with the liquid contents in a single homogeneous phase and that does not require that the product container be shaken before use.

"Small business" means any stationary source that is owned or operated by a person that employs 100 or fewer individuals; is a small business concern as defined in the federal Small Business Act; is not a major stationary source; does not emit 50 tons or more per year of any regulated pollutant; and emits less than 75 tons per year of all regulated pollutants.

"Solid" means a substance or mixture of substances that, either whole or subdivided (such as the particles composing a powder), is not capable of visually detectable flow as determined under ASTM "Standard Test Method for Determining Whether a Material is a Liquid or a Solid" (see 9VAC5-20-21).

"Special purpose spray adhesive" means an aerosol adhesive that meets any of the following definitions:

1. "Mounting adhesive" means an aerosol adhesive designed to permanently mount photographs, artwork, or other drawn or printed media to a backing (paper, board, cloth, etc.) without causing discoloration to the artwork.

2. "Flexible vinyl adhesive" means an aerosol adhesive designed to bond flexible vinyl to substrates. "Flexible vinyl" means a nonrigid polyvinyl chloride plastic with at least 5.0%, by weight, of plasticizer content. A plasticizer is a material, such as a high boiling point organic solvent, that is incorporated into a plastic to increase its flexibility, workability, or distensibility, and may be determined using ASTM "Standard Practice for Packed Column Gas Chromatography" (see 9VAC5-20-21) or from product formulation data.

3. "Polystyrene foam adhesive" means an aerosol adhesive designed to bond polystyrene foam to substrates.

4. "Automobile headliner adhesive" means an aerosol adhesive designed to bond together layers in motor vehicle headliners.

5. "Polyolefin adhesive" means an aerosol adhesive designed to bond polyolefins to substrates.

6. "Laminate repair or edgebanding adhesive" means an aerosol adhesive designed for:

a. The touch-up or repair of items laminated with high pressure laminates (e.g., lifted edges, delaminates, etc.); or

b. The touch-up, repair, or attachment of edgebonding materials, including but not limited to, other laminates, synthetic marble, veneers, wood molding, and decorative metals.

For the purposes of this definition, "high pressure laminate" means sheet materials that consist of paper, fabric, or other core material that have been laminated at temperatures exceeding 265°F and at pressures between 1,000 and 1,400 psi.

7. "Automotive engine compartment adhesive" means an aerosol adhesive designed for use in motor vehicle under-the-hood applications that require oil and plasticizer resistance, as well as high shear strength, at temperatures of 200-275°F.

"Spot remover" means a product labeled to clean localized areas or remove localized spots or stains on cloth or fabric, such as drapes, carpets, upholstery, and clothing, that does not require subsequent laundering to achieve stain removal. Spot remover does not include dry cleaning fluid, laundry prewash, or multipurpose solvent.

"Spray buff product" means a product designed to restore a worn floor finish in conjunction with a floor buffing machine and special pad.

"Stick product" means an antiperspirant or a deodorant that contains active ingredients in a solid matrix form, and that dispenses the active ingredients by frictional action on the affected area.

"Structural waterproof adhesive" means an adhesive whose bond lines are resistant to conditions of continuous immersion in fresh or salt water and that conforms with the definition in the federal consumer products regulation, 40 CFR 59 Subpart C.

"Surplus reduction" means the ACP limit minus the ACP emissions when the ACP limit was greater than the ACP emissions during a given compliance period, expressed to the nearest pound of VOC. Except as provided in 9VAC5-45-320 F 3, surplus reduction does not include emissions occurring prior to the date that the ACP agreement approving an ACP is signed by the board.

"Surplus trading" means the buying, selling, or transfer of surplus reductions between responsible ACP parties.

"Terrestrial" means to live on or grow from land.

"Tire sealant and inflator" means a pressurized product that is designed to temporarily inflate and seal a leaking tire.

"Total maximum historical emissions" or "TMHE" means the total VOC emissions from all ACP products for which the responsible ACP party has failed to submit the required VOC content or enforceable sales records. The TMHE shall be calculated for each ACP product during each portion of a compliance period for which the responsible ACP party has failed to provide the required VOC content or enforceable sales records. The TMHE shall be expressed to the nearest pound and calculated according to the following calculation:

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http://leg5.state.va.us/images/432391135978DEQGG_files/image002.gif

where:

Highest VOC content = the maximum VOC content that the ACP product has contained in the previous five years, if the responsible ACP party has failed to meet the requirements for reporting VOC content data (for any portion of the compliance period), as specified in the ACP agreement approving the ACP, or the current actual VOC content, if the responsible ACP party has provided all required VOC Content data (for the entire compliance period), as specified in the ACP agreement.

Highest sales = the maximum one-year gross sales of the ACP product in the previous five years, if the responsible ACP party has failed to meet the requirements for reporting enforceable sales records (for any portion of the compliance period), as specified in the ACP agreement approving the ACP, or the current actual one-year enforceable sales for the product, if the responsible ACP party has provided all required enforceable sales records (for the entire compliance period), as specified in the ACP agreement approving the ACP.

Missing data days = (see definition in this section).

1, 2,..., N = each product in an ACP, up to the maximum N, for which the responsible ACP party has failed to submit the required enforceable sales or VOC content data as specified in the ACP agreement.

"Type A propellant" means a compressed gas such as CO2, N2, N2O, or compressed air that is used as a propellant and is either incorporated with the product or contained in a separate chamber within the product's packaging.

"Type B propellant" means a halocarbon that is used as a propellant including chlorofluorocarbons (CFCs), hydrochlorofluorocarbons (HCFCs), and hydrofluorocarbons (HFCs).

"Type C propellant" means a propellant that is not a Type A or Type B propellant, including propane, isobutane, n-butane, and dimethyl ether (also known as dimethyl oxide).

"Undercoating" means an aerosol product designed to impart a protective, nonpaint layer to the undercarriage, trunk interior, or firewall of motor vehicles to prevent the formation of rust or to deaden sound. Undercoating includes, but is not limited to, rubberized, mastic, or asphaltic products.

"Usage directions" means the text or graphics on the product's principal display panel, label, or accompanying literature that describes to the end user how and in what quantity the product is to be used.

"VOC content" means, except for charcoal lighter products, the total weight of VOC in a product expressed as a percentage of the product weight (exclusive of the container or packaging), as determined pursuant to 9VAC5-45-370 B and C.

For charcoal lighter material products only,

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where:

Certified emissions = (see definition in this section).

Certified use rate = (see definition in this section).

"Volatile organic compound" or "VOC" means volatile organic compound as defined in 9VAC5-10-20.

"Wasp and hornet insecticide" means an insecticide product that is designed for use against wasps, hornets, yellow jackets or bees by allowing the user to spray from a distance a directed stream or burst at the intended insects or their hiding place.

"Waterproofer" means a product designed and labeled exclusively to repel water from fabric or leather substrates. Waterproofer does not include fabric protectants.

"Wax" means a material or synthetic thermoplastic substance generally of high molecular weight hydrocarbons or high molecular weight esters of fatty acids or alcohols, except glycerol and high polymers (plastics). Wax includes, but is not limited to, substances derived from the secretions of plants and animals such as carnauba wax and beeswax, substances of a mineral origin such as ozocerite and paraffin, and synthetic polymers such as polyethylene.

"Web spray adhesive" means an aerosol adhesive that is not a mist spray or special purpose spray adhesive.

"Wood floor wax" means wax-based products for use solely on wood floors.

"Working day" means a day between Monday through Friday, inclusive, except for federal holidays.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-310. Standard for volatile organic compounds.

A. Except as provided in 9VAC5-45-290, 9VAC5-45-320, and 9VAC5-45-330, no owner or other person shall (i) sell, supply, or offer for sale a consumer product manufactured on or after the applicable compliance date specified in 9VAC5-45-360 or (ii) manufacture for sale a consumer product on or after the applicable compliance date specified in 9VAC5-45-360, that contains volatile organic compounds in excess of the limits specified in Table 45-3A.

TABLE 45-3A

Product Category

Percent VOC by Weight

Adhesives

Aerosol adhesives

Mist spray adhesive:

65%

Web spray adhesive:

55%

Special purpose spray adhesives

Automotive engine compartment adhesive:

70%

Automotive headliner adhesive:

65%

Flexible vinyl adhesive:

70%

Laminate repair or edgebanding adhesive:

60%

Mounting adhesive:

70%

Polystyrene foam adhesive:

65%

Polyolefin adhesive:

60%

Contact adhesive:

80%

Construction, panel, and floor covering adhesive:

15%

General purpose adhesive:

10%

Structural waterproof adhesive:

15%

Air fresheners

Single-phase aerosol:

30%

Double-phase aerosol:

25%

Liquid/Pump spray:

18%

Solid/Gel:

3%

Antiperspirants

Aerosol:

40% HVOC,
10% MVOC

Nonaerosol:

0% HVOC,
0% MVOC

Automotive brake cleaner:

45%

Automotive rubbing or polishing compound:

17%

Automotive wax, polish, sealant, or glaze

Hard paste wax:

45%

Instant detailer:

3%

All other forms:

15%

Automotive windshield washer fluid:

35%

Bathroom and tile cleaners

Aerosol:

7%

All other forms:

5%

Bug and tar remover:

40%

Carburetor or fuel-injection air intake cleaner:

45%

Carpet and upholstery cleaners

Aerosol:

7%

Nonaerosol (dilutable):

0.1%

Nonaerosol (ready-to-use):

3.0%

Charcoal lighter material:

See subsection
F of this section.

Cooking spray, aerosol:

18%

Deodorants

Aerosol:

0% HVOC,
10% MVOC

Nonaerosol:

0% HVOC,
0% MVOC

Dusting aids

Aerosol:

25%

All other forms:

7%

Engine degreasers

Aerosol:

35%

Nonaerosol:

5%

Fabric protectant:

60%

Floor polishes/Waxes

Products for flexible flooring materials:

7%

Products for nonresilient flooring:

10%

Wood floor wax:

90%

Floor wax stripper, nonaerosol:

See subsection
H of this section.

Furniture maintenance products

Aerosol:

17%

All other forms except solid or paste:

7%

General purpose cleaners

Aerosol:

10%

Nonaerosol:

4%

General purpose degreasers

Aerosol:

50%

Nonaerosol:

4%

Glass cleaners

Aerosol:

12%

Nonaerosol:

4%

Hair mousse:

6%

Hair shine:

55%

Hair spray:

55%

Hair styling gel:

6%

Heavy-duty hand cleaner or soap:

8%

Insecticides

Crawling bug (aerosol):

15%

Crawling bug (all other forms):

20%

Flea and tick:

25%

Flying bug (aerosol):

25%

Flying bug (all other forms):

35%

Fogger:

45%

Lawn and garden (all other forms):

20%

Lawn and garden (nonaerosol):

3%

Wasp and hornet:

40%

Laundry prewash

Aerosol/Solid:

22%

All other forms:

5%

Laundry starch product:

5%

Metal polish or cleanser:

30%

Multipurpose lubricant (excluding solid or semi-solid products):

50%

Nail polish remover:

75%

Nonselective terrestrial herbicide, nonaerosol:

3%

Oven cleaners

Aerosol/Pump spray:

8%

Liquid:

5%

Paint remover or stripper:

50%

Penetrant:

50%

Rubber and vinyl protectants

Nonaerosol:

3%

Aerosol:

10%

Sealant and caulking compound:

4%

Shaving cream:

5%

Silicone-based multipurpose lubricant (excluding solid or semi-solid products):

60%

Spot removers

Aerosol:

25%

Nonaerosol:

8%

Tire sealant and inflator:

20%

Undercoating, aerosol:

40%

B. No owner or other person shall sell, supply, offer for sale, or manufacture for sale an antiperspirant or a deodorant that contains a compound that has been defined as a toxic pollutant in 9VAC5-60-210 C.

C. Provisions follow concerning products that are diluted prior to use.

1. For consumer products for which the label, packaging, or accompanying literature specifically states that the product should be diluted with water or non-VOC solvent prior to use, the limits specified in Table 45-3A shall apply to the product only after the minimum recommended dilution has taken place. For purposes of this subsection, "minimum recommended dilution" shall not include recommendations for incidental use of a concentrated product to deal with limited special applications such as hard-to-remove soils or stains.

2. For consumer products for which the label, packaging, or accompanying literature states that the product should be diluted with a VOC solvent prior to use, the limits specified in Table 45-3A shall apply to the product only after the maximum recommended dilution has taken place.

D. The following provisions apply to sell through of consumer products manufactured before August 1, 2010:

1. Notwithstanding the provisions of subsection A, G, H or I of this section, a consumer product manufactured before the applicable compliance date specified in 9VAC5-45-360, may be sold, supplied, or offered for sale after the applicable compliance date if the date of manufacture or a date code representing the date of manufacture is clearly displayed on the product container or package.

2. Notwithstanding the provisions of subsection A, G, H, or I of this section, a consumer product manufactured after the applicable compliance date specified in 9VAC5-45-360 and before August 1, 2010, may be sold, supplied, or offered for sale on or after August 1, 2010, if it complies with all of the provisions of Article 4 (9VAC5-45-400 et seq.) of this part.

3. Except as provided in subdivisions 1 and 2 of this subsection, displaying the date of manufacture, or a code indicating the date of manufacture, on the product container or package does not exempt the owner or product from the provisions of this article.

E. For those consumer products that are registered under FIFRA, the effective date of the VOC standards shall be one year after the applicable compliance date specified in 9VAC5-45-360.

F. The following requirements shall apply to all charcoal lighter material products:

1. Effective as of the applicable compliance date specified in 9VAC5-45-360, no owner or other person shall (i) sell, supply, or offer for sale a charcoal lighter material product manufactured on or after the applicable compliance date or (ii) manufacture for sale a charcoal lighter material product unless at the time of the transaction:

a. The manufacturer can demonstrate to the board's satisfaction that it has been issued a currently effective certification by CARB under the Consumer Products provisions under Subchapter 8.5, Article 2, § 94509(h), of Title 17 of the California Code of Regulations (see 9VAC5-20-21). This certification remains in effect for as long as the CARB certification remains in effect. A manufacturer claiming such a certification on this basis must submit to the board a copy of the certification decision (i.e., the executive order), including all conditions established by CARB applicable to the certification.

b. The manufacturer or distributor of the charcoal lighter material has been issued a currently effective certification pursuant to subdivision 2 of this subsection.

c. The charcoal lighter material meets the formulation criteria and other conditions specified in the applicable ACP agreement issued pursuant to subdivision 2 of this subsection.

d. The product usage directions for the charcoal lighter material are the same as those provided to the board pursuant to subdivision 2 c of this subsection.

2. Provisions follow concerning certification requirements.

a. No charcoal lighter material formulation shall be certified under this subdivision unless the applicant for certification demonstrates to the board's satisfaction that the VOC emissions from the ignition of charcoal with the charcoal lighter material are less than or equal to 0.020 pound of VOC per start, using the procedures specified in the South Coast Air Quality Management District Rule 1174 Ignition Method Compliance Certification Protocol (see 9VAC5-20-21). The provisions relating to LVP-VOC in 9VAC5-45-290 F and 9VAC5-45-300 C shall not apply to a charcoal lighter material subject to the requirements of 9VAC5-45-310 A and this subsection.

b. The board may approve alternative test procedures that are shown to provide equivalent results to those obtained using the South Coast Air Quality Management District Rule 1174 Ignition Method Compliance Certification Protocol (see 9VAC5-20-21).

c. A manufacturer or distributor of charcoal lighter material may apply to the board for certification of a charcoal lighter material formulation in accordance with this subdivision. The application shall be in writing and shall include, at a minimum, the following:

(1) The results of testing conducted pursuant to the procedures specified in South Coast Air Quality Management District Rule 1174 Testing Protocol (see 9VAC5-20-21); and

(2) The exact text or graphics that will appear on the charcoal lighter material's principal display panel, label, or accompanying literature. The provided material shall clearly show the usage directions for the product. These directions shall accurately reflect the quantity of charcoal lighter material per pound of charcoal that was used in the South Coast Air Quality Management District Rule 1174 Testing Protocol (see 9VAC5-20-21) for that product, unless:

(a) The charcoal lighter material is intended to be used in fixed amounts independent of the amount of charcoal used, such as certain paraffin cubes, or

(b) The charcoal lighter material is already incorporated into the charcoal, such as certain "bag light," "instant light" or "match light" products.

(3) For a charcoal lighter material that meets the criteria specified in subdivision 2 c (2) (a) of this subsection, the usage instructions provided to the board will accurately reflect the quantity of charcoal lighter material used in the South Coast Air Quality Management District Rule 1174 Testing Protocol (see 9VAC5-20-21) for that product.

(4) Physical property data, formulation data, or other information required by the board for use in determining when a product modification has occurred and for use in determining compliance with the conditions specified on the ACP agreement issued pursuant to subdivision 2 e of this subsection.

d. Within 30 days of receipt of an application, the board will advise the applicant in writing either that it is complete or that specified additional information is required to make it complete. Within 30 days of receipt of additional information, the board will advise the applicant in writing either that the application is complete, or that specified additional information or testing is still required before it can be deemed complete.

e. If the board finds that an application meets the requirements of subdivision 2 of this subsection, then an ACP agreement shall be issued certifying the charcoal lighter material formulation and specifying such conditions as are necessary to insure that the requirements of this subsection are met. The board will act on a complete application within 90 days after the application is deemed complete.

3. For charcoal lighter material for which certification has been granted pursuant to subdivision 2 of this subsection, the applicant for certification shall notify the board in writing within 30 days of: (i) a change in the usage directions, or (ii) a change in product formulation, test results, or other information submitted pursuant to subdivision 2 of this subsection that may result in VOC emissions greater than 0.020 pound of VOC per start.

4. If the board determines that a certified charcoal lighter material formulation results in VOC emissions from the ignition of charcoal that are greater than 0.020 pound of VOC per start, as determined by the South Coast Air Quality Management District Rule 1174 Testing Protocol (see 9VAC5-20-21) and the statistical analysis procedures contained therein, the board will revoke or modify the certification as is necessary to assure that the charcoal lighter material will result in VOC emissions of less than or equal to 0.020 pound of VOC per start.

G. Provisions follow concerning aerosol adhesives.

1. The standards for aerosol adhesives apply to all uses of aerosol adhesives, including consumer, industrial, and commercial uses. Except as otherwise provided in 9VAC5-45-290 and 9VAC5-45-330, no owner or other person shall sell, supply, offer for sale, use, or manufacture for sale an aerosol adhesive that, at the time of sale, use, or manufacture, contains VOCs in excess of the specified standard.

2. a. In order to qualify as a "special purpose spray adhesive," the product must meet one or more of the definitions for special purpose spray adhesive specified in 9VAC5-45-300 C, but if the product label indicates that the product is suitable for use on a substrate or application not listed in 9VAC5-45-300 C, then the product shall be classified as either a "web spray adhesive" or a "mist spray adhesive."

b. If a product meets more than one of the definitions specified in 9VAC5-45-300 C for "special purpose spray adhesive," and is not classified as a "web spray adhesive" or "mist spray adhesive" under subdivision 2 a of this subsection, then the VOC limit for the product shall be the lowest applicable VOC limit specified in 9VAC5-45-310 A.

3. Effective as of the applicable compliance dates specified in 9VAC5-45-360, no person shall (i) sell, supply, or offer for sale an aerosol adhesive manufactured on or after the applicable compliance date or (ii) manufacture for sale an aerosol adhesive that contains any of the following compounds: methylene chloride, perchloroethylene, or trichloroethylene.

4. All aerosol adhesives must comply with the labeling requirements specified in 9VAC5-45-340 D.

H. Effective as of the applicable compliance date specified in 9VAC5-45-360, no owner or other person shall sell, supply, offer for sale, or manufacture for use a floor wax stripper unless the following requirements are met:

1. The label of each nonaerosol floor wax stripper must specify a dilution ratio for light or medium build-up of polish that results in an as-used VOC concentration of 3.0% by weight or less.

2. If a nonaerosol floor wax stripper is also intended to be used for removal of heavy build-up of polish, the label of that floor wax stripper must specify a dilution ratio for heavy build-up of polish that results in an as-used VOC concentration of 12% by weight or less.

3. The terms "light build-up," "medium build-up" or "heavy build-up" are not specifically required as long as comparable terminology is used.

I. For a consumer product for which standards are specified under subsection A of this section, no owner or other person shall sell, supply, offer for sale, or manufacture for sale a consumer product that contains any of the following ozone-depleting compounds:

CFC-11 (trichlorofluoromethane), CFC-12 (dichlorodifluoromethane);

CFC-113 (1,1,1-trichloro-2,2,2-trifluoroethane);

CFC-114 (1-chloro-1,1-difluoro-2-chloro-2,2-difluoroethane);

CFC-115 (chloropentafluoroethane), halon 1211 (bromochlorodifluoromethane);

halon 1301 (bromotrifluoromethane), halon 2402 (dibromotetrafluoroethane);

HCFC-22 (chlorodifluoromethane), HCFC-123 (2,2-dichloro-1,1,1-trifluoroethane);

HCFC-124 (2-chloro-1,1,1,2-tetrafluoroethane);

HCFC-141b (1,1-dichloro-1-fluoroethane), HCFC-142b (1-chloro-1,1-difluoroethane);

1,1,1-trichloroethane; or

carbon tetrachloride.

J. The requirements of subsection I of this section shall not apply to an existing product formulation that complies with Table 45-3A or an existing product formulation that is reformulated to meet Table 45-3A, provided the ozone-depleting compound content of the reformulated product does not increase.

K. The requirements of subsection I of this section shall not apply to ozone-depleting compounds that may be present as impurities in a consumer product in an amount equal to or less than 0.01% by weight of the product.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-320. Alternative control plan (ACP) for consumer products.

A. 1. Manufacturers of consumer products may seek an ACP agreement in accordance with subsections B through L of this section.

2. Only responsible ACP parties for consumer products may enter into an ACP agreement under the provisions of this section.

B. Provisions follow concerning the requirements and process for approval of an ACP.

1. To be considered by the board for approval, an application for a proposed ACP shall be submitted in writing to the board by the responsible ACP party and shall contain all of the following:

a. An identification of the contact persons, phone numbers, names, and addresses of the responsible ACP party that is submitting the ACP application and will be implementing the ACP requirements specified in the ACP agreement.

b. A statement of whether the responsible ACP party is a small business or a one-product business.

c. A listing of the exact product brand name, form, available variations (flavors, scents, colors, sizes, etc.), and applicable product category for each distinct ACP product that is proposed for inclusion in the ACP.

d. For each proposed ACP product identified in subdivision 1 c of this subsection, a demonstration to the satisfaction of the board that the enforceable sales records to be used by the responsible ACP party for tracking product sales meet the minimum criteria specified in subdivision 1 d (5) of this subsection. To provide this demonstration, the responsible ACP party shall either demonstrate to the satisfaction of the board that other records provided to the board in writing by the responsible ACP party meet the minimum criteria of subdivision 1 d (5) of this subsection for tracking product sales of each ACP product, or do all of the following:

(1) Provide the contact persons, phone numbers, names, street and mail addresses of all persons and businesses who will provide information that will be used to determine the enforceable sales;

(2) Determine the enforceable sales of each product using enforceable sales records;

(3) Demonstrate, to the satisfaction of the board, the validity of the enforceable sales based on enforceable sales records provided by the contact persons or the responsible ACP party;

(4) Calculate the percentage of the gross sales that is composed of enforceable sales; and

(5) Determine which ACP products have enforceable sales that are 75% or more of the gross sales. Only ACP products meeting this criteria shall be allowed to be sold under an ACP.

e. For each of the ACP products identified in subdivision 1 d (5) of this subsection, the inclusion of the following:

(1) Legible copies of the existing labels for each product;

(2) The VOC content and LVP content for each product. The VOC content and LVP content shall be reported for two different periods as follows:

(a) The VOC and LVP contents of the product at the time the application for an ACP is submitted, and

(b) The VOC and LVP contents of the product that were used at any time within the four years prior to the date of submittal of the application for an ACP if either the VOC or LVP contents have varied by more than plus or minus 10% of the VOC or LVP contents reported in subdivision 1 e (2) (a) of this subsection.

f. A written commitment obligating the responsible ACP party to date-code every unit of each ACP product approved for inclusion in the ACP. The commitment shall require the responsible ACP party to display the date-code on each ACP product container or package no later than five working days after the date an ACP agreement approving an ACP is signed by the board.

g. An operational plan covering all the products identified under subdivision 1 d (5) of this subsection for each compliance period that the ACP will be in effect. The operational plan shall contain all of the following:

(1) An identification of the compliance periods and dates for the responsible ACP party to report the information required by the board in the ACP agreement approving an ACP. The length of the compliance period shall be chosen by the responsible ACP party (not to exceed 365 days). The responsible ACP party shall also choose the dates for reporting information such that all required VOC content and enforceable sales data for all ACP products shall be reported to the board at the same time and at the same frequency .

(2) An identification of specific enforceable sales records to be provided to the board for enforcing the provisions of this article and the ACP agreement approving an ACP. The enforceable sales records shall be provided to the board no later than the compliance period dates specified in subdivision 1 g (1) of this subsection.

(3) For a small business or a one-product business that will be relying to some extent on surplus trading to meet its ACP limits, a written commitment from the responsible ACP party that they will transfer the surplus reductions to the small business or one-product business upon approval of the ACP.

(4) For each ACP product, all VOC content levels that will be applicable for the ACP product during each compliance period. The plan shall also identify the specific method by which the VOC content will be determined and the statistical accuracy and precision (repeatability and reproducibility) will be calculated for each specified method.

(5) The projected enforceable sales for each ACP product at each different VOC content for every compliance period that the ACP will be in effect.

(6) A detailed demonstration showing the combination of specific ACP reformulations or surplus trading (if applicable) that is sufficient to ensure that the ACP emissions will not exceed the ACP limit for each compliance period that the ACP will be in effect, the approximate date within each compliance period that such reformulations or surplus trading are expected to occur, and the extent to which the VOC contents of the ACP products will be reduced (i.e., by ACP reformulation). This demonstration shall use the equations specified in 9VAC5-45-300 C for projecting the ACP emissions and ACP limits during each compliance period. This demonstration shall also include all VOC content levels and projected enforceable sales for all ACP products to be sold during each compliance period.

(7) A certification that all reductions in the VOC content of a product will be real, actual reductions that do not result from changing product names, mischaracterizing ACP product reformulations that have occurred in the past, or other attempts to circumvent the provisions of this article.

(8) Written explanations of the date-codes that will be displayed on each ACP product's container or packaging.

(9) A statement of the approximate dates by which the responsible ACP party plans to meet the applicable ACP VOC standards for each product in the ACP.

(10) An operational plan ("reconciliation of shortfalls plan") that commits the responsible ACP party to completely reconcile shortfalls, even, to the extent permitted by law, if the responsible ACP party files for bankruptcy protection. The plan for reconciliation of shortfalls shall contain all of the following:

(a) A clear and convincing demonstration of how shortfalls of up to 5.0%, 10%, 15%, 25%, 50%, 75% and 100% of the applicable ACP limit will be completely reconciled within 90 working days from the date the shortfall is determined;

(b) A listing of the specific records and other information that will be necessary to verify that the shortfalls were reconciled as specified in this subsection; and

(c) A commitment to provide a record or information requested by the board to verify that the shortfalls have been completely reconciled.

h. A declaration, signed by a legal representative for the responsible ACP party, that states that all information and operational plans submitted with the ACP application are true and correct.

2. a. In accordance with the time periods specified in subsection C of this section, the board will issue an ACP agreement approving an ACP that meets the requirements of this article. The board will specify such terms and conditions as are necessary to ensure that the emissions from the ACP products do not exceed the emissions that would have occurred if the ACP products subject to the ACP had met the VOC standards specified in 9VAC5-45-310 A. The ACP shall also include:

(1) Only those ACP products for which the enforceable sales are at least 75% of the gross sales as determined in subdivision 1 d (5) of this subsection;

(2) A reconciliation of shortfalls plan meeting the requirements of this article; and

(3) Operational terms, conditions, and data to be reported to the board to ensure that all requirements of this article are met.

b. The board will not approve an ACP submitted by a responsible ACP party if the board determines, upon review of the responsible ACP party's compliance history with past or current ACPs or the requirements for consumer products in this article, that the responsible ACP party has a recurring pattern of violations and has consistently refused to take the necessary steps to correct those violations.

C. Provisions follow concerning ACP approval time frames.

1. The board will take appropriate action on an ACP within the following time periods:

a. Within 30 working days of receipt of an ACP application, the board will inform the applicant in writing that either:

(1) The application is complete and accepted for filing, or

(2) The application is deficient, and identify the specific information required to make the application complete.

b. Within 30 working days of receipt of additional information provided in response to a determination that an ACP application is deficient, the board will inform the applicant in writing that either:

(1) The additional information is sufficient to make the application complete, and the application is accepted for filing, or

(2) The application is deficient, and identify the specific information required to make the application complete.

c. If the board finds that an application meets the requirements of subsection B of this section, then it shall issue an ACP agreement in accordance with the requirements of this article. The board will normally act to approve or disapprove a complete application within 90 working days after the application is deemed complete. The board may extend this time period if additional information is needed.

2. Before the end of each time period specified in this section, the board and the responsible ACP party may mutually agree to a longer time period for the board to take the appropriate action.

D. Provisions follow concerning recordkeeping and availability of requested information.

1. All information specified in the ACP agreement approving an ACP shall be maintained by the responsible ACP party for a minimum of three years after such records are generated. Such records shall be clearly legible and maintained in good condition during this period.

2. The records specified in subdivision 1 of this subsection shall be made available to the board or its authorized representative:

a. Immediately upon request, during an on-site visit to a responsible ACP party,

b. Within five working days after receipt of a written request from the board, or

c. Within a time period mutually agreed upon by both the board and the responsible ACP party.

E. Provisions follow concerning violations.

1. Failure to meet a requirement of this article or a condition of an applicable ACP agreement shall constitute a single, separate violation of this article for each day until such requirement or condition is satisfied, except as otherwise provided in subdivisions 2 through 8 of this subsection.

2. False reporting of information in an ACP application or in any supporting documentation or amendments thereto shall constitute a single, separate violation of the requirements of this article for each day that the approved ACP is in effect.

3. An exceedance during the applicable compliance period of the VOC content specified for an ACP product in the ACP agreement approving an ACP shall constitute a single, separate violation of the requirements of this article for each ACP product that exceeds the specified VOC content that is sold, supplied, offered for sale, or manufactured for use.

4. Any of the following actions shall each constitute a single, separate violation of the requirements of this article for each day after the applicable deadline until the requirement is satisfied:

a. Failure to report data or failure to report data accurately in writing to the board regarding the VOC content, LVP content, enforceable sales, or other information required by the deadline specified in the applicable ACP agreement;

b. False reporting of information submitted to the board for determining compliance with the ACP requirements;

c. Failure to completely implement the reconciliation of shortfalls plan that is set forth in the ACP agreement within 30 working days from the date of written notification of a shortfall by the board; or

d. Failure to completely reconcile the shortfall as specified in the ACP agreement within 90 working days from the date of written notification of a shortfall by the board.

5. False reporting or failure to report any of the information specified in subdivision F 2 i of this section or the sale or transfer of invalid surplus reductions shall constitute a single, separate violation of the requirements of this article for each day during the time period for which the surplus reductions are claimed to be valid.

6. Except as provided in subdivision 7 of this subsection, an exceedance of the ACP limit for a compliance period that the ACP is in effect shall constitute a single, separate violation of the requirements of this article for each day of the applicable compliance period. The board will determine whether an exceedance of the ACP limit has occurred as follows:

a. If the responsible ACP party has provided all required information for the applicable compliance period specified in the ACP agreement approving an ACP, then the board will determine whether an exceedance has occurred using the enforceable sales records and VOC content for each ACP product as reported by the responsible ACP party for the applicable compliance period.

b. If the responsible ACP party has failed to provide all the required information specified in the ACP agreement for an applicable compliance period, the board will determine whether an exceedance of the ACP limit has occurred as follows.

(1) For the missing data days, the board will calculate the total maximum historical emissions as specified in 9VAC5-45-300 C.

(2) For the remaining portion of the compliance period that are not missing data days, the board will calculate the emissions for each ACP product using the enforceable sales records and VOC content that were reported for that portion of the applicable compliance period.

(3) The ACP emissions for the entire compliance period shall be the sum of the total maximum historical emissions, determined pursuant to subdivision 6 b (1) of this subsection, and the emissions determined pursuant to subdivision 6 b (2) of this subsection.

(4) The board will calculate the ACP limit for the entire compliance period using the ACP standards applicable to each ACP product and the enforceable sales records specified in subdivision 6 b (2) of this subsection. The enforceable sales for each ACP product during missing data days, as specified in subdivision 6 b (1) of this subsection, shall be zero.

(5) An exceedance of the ACP limit has occurred when the ACP emissions, determined pursuant to subdivision 6 b (3) of this subsection, exceeds the ACP limit, determined pursuant to subdivision 6 b (4) of this subsection.

7. If a violation specified in subdivision 6 of this subsection occurs, the responsible ACP party may, pursuant to this subdivision, establish the number of violations as calculated according to the following equation:

http://leg5.state.va.us/images/432463416171DEQGG_files/image001.gif

where:

NEV = number of ACP limit violations.

ACP emissions = the ACP emissions for the compliance period.

ACP limit = the ACP limit for the compliance period.

40 pounds = number of pounds of emissions equivalent to one violation.

The responsible ACP party may determine the number of ACP limit violations pursuant to this subdivision only if it has provided all required information for the applicable compliance period, as specified in the ACP agreement approving the ACP. By choosing this option, the responsible ACP party waives all legal objections to the calculation of the ACP limit violations pursuant to this subdivision.

8. A cause of action against a responsible ACP party under this section shall be deemed to accrue on the date when the records establishing a violation are received by the board.

9. The responsible ACP party is fully liable for compliance with the requirements of this article, even if the responsible ACP party contracts with or otherwise relies on another person to carry out some or all of the requirements of this article.

F. Provisions follow concerning surplus reductions and surplus trading.

1. The board will issue surplus reduction certificates that establish and quantify, to the nearest pound of VOC reduced, the surplus reductions achieved by a responsible ACP party operating under an ACP. The surplus reductions can be bought from, sold to, or transferred to a responsible ACP party operating under an ACP, as provided in subdivision 2 of this subsection. All surplus reductions shall be calculated by the board at the end of each compliance period within the time specified in the approved ACP. Surplus reduction certificates shall not constitute instruments, securities, or another form of property.

2. The issuance, use, and trading of all surplus reductions shall be subject to the following provisions:

a. For the purposes of this article, VOC reductions from sources of VOCs other than consumer products subject to the VOC standards specified in 9VAC5-45-310 A may not be used to generate surplus reductions.

b. Surplus reductions are valid only when generated by a responsible ACP party and only while that responsible ACP party is operating under an approved ACP.

c. Surplus reductions are valid only after the board has issued an ACP agreement pursuant to subdivision 1 of this subsection.

d. Surplus reductions issued by the board may be used by the responsible ACP party who generated the surplus until the reductions expire, are traded, or until the ACP is canceled pursuant to subdivision J 2 of this section.

e. Surplus reductions cannot be applied retroactively to a compliance period prior to the compliance period in which the reductions were generated.

f. Except as provided in subdivision 2 g (2) of this subsection, only small or one-product businesses selling products under an approved ACP may purchase surplus reductions. An increase in the size of a small business or one-product business shall have no effect on surplus reductions purchased by that business prior to the date of the increase.

g. While valid, surplus reductions can be used only for the following purposes:

(1) To adjust the ACP emissions of either the responsible ACP party who generated the reductions or the responsible ACP party to which the reductions were traded, provided the surplus reductions are not to be used by a responsible ACP party to further lower its ACP emissions when its ACP emissions are equal to or less than the ACP limit during the applicable compliance period; or

(2) To be traded for the purpose of reconciling another responsible ACP party's shortfalls, provided such reconciliation is part of the reconciliation of shortfalls plan approved by the board pursuant to subdivision B 1 g (10) of this section.

h. A valid surplus reduction shall be in effect starting five days after the date of issuance by the board for a continuous period equal to the number of days in the compliance period during which the surplus reduction was generated. The surplus reduction shall then expire at the end of its effective period.

i. At least five working days prior to the effective date of transfer of surplus reductions, both the responsible ACP party that is selling surplus reductions and the responsible ACP party that is buying the surplus reductions shall, either together or separately, notify the board in writing of the transfer. The notification shall include all of the following:

(1) The date the transfer is to become effective.

(2) The date the surplus reductions being traded are due to expire.

(3) The amount (in pounds of VOCs) of surplus reductions that is being transferred.

(4) The total purchase price paid by the buyer for the surplus reductions.

(5) The contact persons, names of the companies, street and mail addresses, and phone numbers of the responsible ACP parties involved in the trading of the surplus reductions.

(6) A copy of the board-issued surplus reductions certificate, signed by both the seller and buyer of the certificate, showing transfer of all or a specified portion of the surplus reductions. The copy shall show the amount of any remaining nontraded surplus reductions, if applicable, and shall show their expiration date. The copy shall indicate that both the buyer and seller of the surplus reductions fully understand the conditions and limitations placed upon the transfer of the surplus reductions and accept full responsibility for the appropriate use of such surplus reductions as provided in this section.

j. Surplus reduction credits shall only be traded between ACP products.

3. Provisions follow concerning limited-use surplus reduction credits for early reformulations of ACP products.

a. For the purposes of this subdivision, "early reformulation" means an ACP product that is reformulated to result in a reduction in the product's VOC content, and that is sold, supplied, or offered for sale for the first time during the one-year (365 day) period immediately prior to the date on which the application for a proposed ACP is submitted to the board. Early reformulation does not include reformulated ACP products that are sold, supplied, or offered for sale more than one year prior to the date on which the ACP application is submitted to the board.

b. If requested in the application for a proposed ACP, the board will, upon approval of the ACP, issue surplus reduction credits for early reformulation of ACP products, provided that all of the following documentation has been provided by the responsible ACP party to the satisfaction of the board:

(1) Accurate documentation showing that the early reformulation reduced the VOC content of the ACP product to a level that is below the pre-ACP VOC content of the product or below the applicable VOC standard specified in 9VAC 5-45-310 A, whichever is the lesser of the two;

(2) Accurate documentation demonstrating that the early reformulated ACP product was sold in retail outlets within the time period specified in subdivision 3 a of this subsection;

(3) Accurate sales records for the early reformulated ACP product that meet the definition of enforceable sales records and that demonstrate that the enforceable sales for the ACP product are at least 75% of the gross sales for the product, as specified in subdivision B 1 d of this section; and

(4) Accurate documentation for the early reformulated ACP product that meets the requirements specified in subdivisions B 1 c and d and B 1 g (7) and (8) of this section and that identifies the specific test methods for verifying the claimed early reformulation and the statistical accuracy and precision of the test methods as specified in subdivision B 1 g (4) of this section.

c. Surplus reduction credits issued pursuant to this subsection shall be calculated separately for each early reformulated ACP product by the board according to the following equation:

where:

SR = surplus reductions for the ACP product, expressed to the nearest pound.

Enforceable sales = the enforceable sales for the early reformulated ACP product, expressed to the nearest pound of ACP product.

VOC contentinitial = the pre-ACP VOC content of the ACP product, or the applicable VOC standard specified in 9VAC5-45-310 A, whichever is the lesser of the two, expressed to the nearest 0.1 pounds of VOC per 100 pounds of ACP product.

VOC contentfinal = the VOC content of the early reformulated ACP product after the early reformulation is achieved, expressed to the nearest 0.1 pounds of VOC per 100 pounds of ACP product.

d. The use of limited use surplus reduction credits issued pursuant to this subdivision shall be subject to all of the following provisions:

(1) Limited use surplus reduction credits shall be used solely to reconcile the responsible ACP party's shortfalls, if any, generated during the first compliance period occurring immediately after the issuance of the ACP agreement approving an ACP, and may not be used for another purpose;

(2) Limited use surplus reduction credits may not be transferred to, or used by, another responsible ACP party; and

(3) Except as provided in this subdivision, limited use surplus reduction credits shall be subject to all requirements applicable to surplus reductions and surplus trading as specified in subdivisions 1 and 2 of this subsection.

G. Provisions follow concerning the reconciliation of shortfalls.

1. At the end of each compliance period, the responsible ACP party shall make an initial calculation of shortfalls occurring in that compliance period as specified in the ACP agreement approving the ACP. Upon receipt of this information, the board will determine the amount of a shortfall that has occurred during the compliance period and shall notify the responsible ACP party of this determination.

2. The responsible ACP party shall implement the reconciliation of shortfalls plan as specified in the ACP agreement approving the ACP within 30 working days from the date of written notification of a shortfall by the board.

3. All shortfalls shall be completely reconciled within 90 working days from the date of written notification of a shortfall by the board by implementing the reconciliation of shortfalls plan specified in the ACP agreement approving the ACP.

4. All requirements specified in the ACP agreement approving an ACP, including all applicable ACP limits, shall remain in effect while shortfalls are in the process of being reconciled.

H. Provisions follow concerning the notification of modifications to an ACP by the responsible ACP party.

1. Board pre-approval is not required for modifications that are a change to an ACP product's: (i) product name, (ii) product formulation, (iii) product form, (iv) product function, (v) applicable product category, (vi) VOC content, (vii) LVP content, (viii) date-codes, or (ix) recommended product usage directions. The responsible ACP party shall notify the board of such changes, in writing, no later than 15 working days from the date such a change occurs. For each modification, the notification shall fully explain the following:

a. The nature of the modification;

b. The extent to which the ACP product formulation, VOC content, LVP content, or recommended usage directions will be changed;

c. The extent to which the ACP emissions and ACP limit specified in the ACP agreement will be changed for the applicable compliance period; and

d. The effective date and corresponding date-codes for the modification.

2. The responsible ACP party may propose modifications to the enforceable sales records or the reconciliation of shortfalls plan specified in the ACP agreement approving the ACP, however, such modifications require board pre-approval. Any such proposed modifications shall be fully described in writing and forwarded to the board. The responsible ACP party shall clearly demonstrate that the proposed modifications will meet the requirements of this article. The board will act on the proposed modifications using the procedure set forth in subsection C of this section. The responsible ACP party shall meet all applicable requirements of the existing ACP until such time as a proposed modification is approved in writing by the board.

3. Except as otherwise provided in subdivisions 1 and 2 of this subsection, the responsible ACP party shall notify the board, in writing, of information known by the responsible ACP party that may alter the information submitted pursuant to the requirements of subsection B of this section. The responsible ACP party shall provide such notification to the board no later than 15 working days from the date such information is known to the responsible ACP party.

I. Provisions follow concerning the modification of an ACP by the board.

1. If the board determines that: (i) the enforceable sales for an ACP product are no longer at least 75% of the gross sales for that product, (ii) the information submitted pursuant to the approval process set forth in subsection C of this section is no longer valid, or (iii) the ACP emissions are exceeding the ACP limit specified in the ACP agreement approving an ACP, then the board will modify the ACP as necessary to ensure that the ACP meets all requirements of this article and that the ACP emissions will not exceed the ACP limit.

2. If any applicable VOC standards specified in 9VAC5-45-310 A are modified by the board in a future rulemaking, the board will modify the ACP limit specified in the ACP agreement approving an ACP to reflect the modified ACP VOC standards as of their effective dates.

J. Provisions follow concerning the cancellation of an ACP.

1. An ACP shall remain in effect until:

a. The ACP reaches the expiration date specified in the ACP agreement;

b. The ACP is modified by the responsible ACP party and approved by the board as provided in subsection H of this section;

c. The ACP is modified by the board as provided in subsection I of this section;

d. The ACP includes a product for which the VOC standard specified in 9VAC5-45-310 A is modified by the board in a future rulemaking, and the responsible ACP party informs the board in writing that the ACP will terminate on the effective date of the modified standard; or

e. The ACP is cancelled pursuant to subdivision 2 of this subsection.

2. The board will cancel an ACP if any of the following circumstances occur:

a. The responsible ACP party demonstrates to the satisfaction of the board that the continuation of the ACP will result in an extraordinary economic hardship.

b. The responsible ACP party violates the requirements of the approved ACP, and the violation results in a shortfall that is 20% or more of the applicable ACP limit (i.e., the ACP emissions exceed the ACP limit by 20% or more).

c. The responsible ACP party fails to meet the requirements of subsection G of this section within the time periods specified in that subsection.

d. The responsible ACP party has demonstrated a recurring pattern of violations and has consistently failed to take the necessary steps to correct those violations.

3. Cancellations of ACPs are considered case decisions and will be processed using the procedures prescribed in 9VAC5-170-40 A 2 and applicable provisions of Article 3 (§ 2.2-4018 et seq.) of the Administrative Process Act.

4. The responsible ACP party for an ACP that is canceled pursuant to this section and who does not have a valid ACP to immediately replace the canceled ACP shall meet all of the following requirements:

a. All remaining shortfalls in effect at the time of ACP cancellation shall be reconciled in accordance with the requirements of subsection G of this section, and

b. All ACP products subject to the ACP shall be in compliance with the applicable VOC standards in 9VAC5-45-310 A immediately upon the effective date of ACP cancellation.

5. Violations incurred pursuant to subsection E of this section shall not be cancelled or affected by the subsequent cancellation or modification of an ACP pursuant to subsection H, I, or J of this section.

K. The information required by subdivisions B 1 a and b and F 2 i of this section is public information that may not be claimed as confidential. Other information submitted to the board to meet the requirements of this section shall be available to the public except where the owner makes a showing satisfactory to the board under 9VAC5-170-60 B that the information meets the criteria in 9VAC5-170-60 C, in which case the information shall be handled in accordance with the procedures specified in §§ 10.1-1314 and 10.1-1314.1 of the Air Pollution Control Law of Virginia.

L. A responsible ACP party may transfer an ACP to another responsible ACP party, provided that all of the following conditions are met:

1. The board will be notified, in writing, by both responsible ACP parties participating in the transfer of the ACP and its associated ACP agreement. The written notifications shall be postmarked at least five working days prior to the effective date of the transfer and shall be signed and submitted separately by both responsible parties. The written notifications shall clearly identify the contact persons, business names, mail and street addresses, and phone numbers of the responsible parties involved in the transfer.

2. The responsible ACP party to which the ACP is being transferred shall provide a written declaration stating that the transferee shall fully comply with all requirements of the ACP agreement approving the ACP and this article.

M. In approving agreements under subsections B through L of this section, the board will take into consideration whether the applicant has been granted an ACP by CARB. A manufacturer of consumer products that has been granted an ACP agreement by the CARB under the provisions in Subchapter 8.5, Article 4, Sections 94540-94555, of Title 17 of the California Code of Regulations (see 9VAC5-20-21) may be exempt from Table 45-3A for the period of time that the CARB ACP agreement remains in effect provided that all ACP products used for emission credits within the CARB ACP agreement are contained in Table 45-3A. A manufacturer claiming such an ACP agreement on this basis must submit to the board a copy of the CARB ACP decision (i.e., the executive order), including all conditions established by CARB applicable to the exemption and certification that the manufacturer will comply with the CARB ACP decision for those ACP products in the areas specified in 9VAC5-45-280 C.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-330. Innovative products.

A. Manufacturers of consumer products may seek an innovative products exemption in accordance with the following criteria:

1. The board will exempt a consumer product from the VOC limits specified in 9VAC5-45-310 A if a manufacturer demonstrates by clear and convincing evidence that, due to some characteristic of the product formulation, design, delivery systems or other factors, the use of the product will result in less VOC emissions as compared to:

a. The VOC emissions from a representative consumer product that complies with the VOC limits specified in 9VAC5-45-310 A, or

b. The calculated VOC emissions from a noncomplying representative product, if the product had been reformulated to comply with the VOC limits specified in 9VAC5-45-310 A. VOC emissions shall be calculated using the following equation:

where:

ER = The VOC emissions from the noncomplying representative product, had it been reformulated.

ENC = The VOC emissions from the noncomplying representative product in its current formulation.

VOCSTD = the VOC limit specified in Table 45-3A.

VOCNC = the VOC content of the noncomplying product in its current formulation.

If a manufacturer demonstrates that this equation yields inaccurate results due to some characteristic of the product formulation or other factors, an alternative method that accurately calculates emissions may be used upon approval of the board.

2. For the purposes of this subsection, "representative consumer product" means a consumer product that meets all of the following criteria:

a. The representative product shall be subject to the same VOC limit in 9VAC5-45-310 A as the innovative product;

b. The representative product shall be of the same product form as the innovative product unless the innovative product uses a new form that does not exist in the product category at the time the application is made; and

c. The representative product shall have at least a similar efficacy as other consumer products in the same product category based on tests generally accepted for that product category by the consumer products industry.

3. A manufacturer shall apply in writing to the board for an exemption claimed under subdivision A 1 of this section. The application shall include the supporting documentation that demonstrates the emissions from the innovative product, including the actual physical test methods used to generate the data and, if necessary, the consumer testing undertaken to document product usage. In addition, the applicant must provide the information necessary to enable the board to establish enforceable conditions for granting the exemption, including the VOC content for the innovative product and test methods for determining the VOC content. Information submitted to the board pursuant to this section shall be available to the public except where the owner makes a showing satisfactory to the board under 9VAC5-170-60 B that the information meets the criteria in 9VAC5-170-60 C, in which case the information shall be handled in accordance with the procedures specified in §§ 10.1-1314 and 10.1-1314.1 of the Air Pollution Control Law of Virginia.

4. Within 30 days of receipt of the exemption application, the board will determine whether an application is complete.

5. Within 90 days after an application has been deemed complete, the board will determine whether, under what conditions, and to what extent an exemption from the requirements of 9VAC5-45-310 A will be permitted. The board may extend this time period if additional time is needed to reach a decision, and additional supporting documentation may be submitted by the applicant before a decision has been reached. The board will notify the applicant of the decision in writing and specify such terms and conditions as are necessary to insure that emissions from the product will meet the emissions reductions specified in subdivision 1 of this subsection, and that such emissions reductions can be enforced.

6. In granting an exemption for a product, the board will establish enforceable conditions. These conditions shall include the VOC content of the innovative product, dispensing rates, application rates, and other parameters determined by the board to be necessary. The board will also specify the test methods for determining conformance to the conditions established. The test methods shall include criteria for reproducibility, accuracy, sampling, and laboratory procedures.

7. For a product for which an exemption has been granted pursuant to this section, the manufacturer shall notify the board in writing within 30 days of a change in the product formulation or recommended product usage directions and shall also notify the board within 30 days if the manufacturer learns of information that would alter the emissions estimates submitted to the board in support of the exemption application.

8. If the VOC limits specified in 9VAC5-45-310 A are lowered for a product category through a subsequent rulemaking, all innovative product exemptions granted for products in the product category, except as provided in this subdivision, shall have no force and effect as of the effective date of the modified VOC standard. This subdivision shall not apply to those innovative products that have VOC emissions less than the applicable lowered VOC limit and for which a written notification of the product's emissions status versus the lowered VOC limit has been submitted to and approved by the board at least 60 days before the effective date of such limits.

9. If the board believes that a consumer product for which an exemption has been granted no longer meets the criteria for an innovative product specified in subdivision 1 of this subsection, the board may modify or revoke the exemption as necessary to assure that the product will meet these criteria.

B. In granting an exemption under this section, the board will take into consideration whether the applicant has been granted an innovative product exemption by CARB. A manufacturer of consumer products that has been granted an innovative product exemption by the CARB under the innovative products provisions in Subchapter 8.5, Article 2, Section 94511, or Subchapter 8.5, Article 1, Section 94503.5 of Title 17 of the California Code of Regulations (see 9VAC5-20-21), may be exempt from Table 45-3A for the period of time that the CARB innovative products exemption remains in effect provided that all consumer products within the CARB innovative products exemption are contained in Table 45-3A. A manufacturer claiming such an exemption on this basis must submit to the board a copy of the innovative product exemption decision (i.e., the executive order ), including all conditions established by CARB applicable to the exemption, and certification that the manufacturer will comply with the CARB innovative product exemption decision for those products in the areas specified in 9VAC5-45-280 C.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-340. Administrative requirements.

A. Provisions follow concerning product dating.

1. Each manufacturer of a consumer product subject to 9VAC5-45-310 shall clearly display on each consumer product container or package, the day, month, and year on which the product was manufactured or a code indicating such date.

2. A manufacturer who uses the following code to indicate the date of manufacture shall not be subject to the requirements of subdivision B 1 of this section, if the code is represented separately from other codes on the product container so that it is easily recognizable:

YY DDD = year year day day day

where:

YY = two digits representing the year in which the product was manufactured, and

DDD = three digits representing the day of the year on which the product was manufactured, with 001 representing the first day of the year, 002 representing the second day of the year, and so forth (i.e., the Julian date).

3. The date or date code shall be located on the container or inside the cover or cap so that it is readily observable or obtainable (by simply removing the cap or cover) without irreversibly disassembling a part of the container or packaging. For the purposes of this subdivision, information may be displayed on the bottom of a container as long as it is clearly legible without removing any product packaging.

4. This date or date code shall be displayed on each consumer product container or package no later than the effective date of the applicable standard specified in 9VAC5-45-310 A.

5. The requirements of this section shall not apply to products containing no VOCs or containing VOCs at 0.10% by weight or less.

B. Additional provisions follow concerning product dating.

1. If a manufacturer uses a code indicating the date of manufacture for a consumer product subject to 9VAC5-45-310, an explanation of the date portion of the code must be filed with the board upon request by the board.

2. If a manufacturer changes any code indicating the date of manufacture for any consumer product subject to 9VAC5-45-310 and the board has requested an explanation of any previous product dating code for that consumer product, then an explanation of the modified code shall be submitted to the board before any products displaying the modified code are sold, supplied, or offered for sale within the areas designated in 9VAC5-45-280 C.

3. No person shall erase, alter, deface, or otherwise remove or make illegible any date or code indicating the date of manufacture from any regulated product container without the express authorization of the manufacturer.

4. Date code explanations for codes indicating the date of manufacture are public information and may not be claimed as confidential.

C. Notwithstanding the definition of "product category" in 9VAC5-45-300 C, if anywhere on the principal display panel of a consumer product, a representation is made that the product may be used as or is suitable for use as a consumer product for which a lower VOC limit is specified in 9VAC5-45-310 A, then the lowest VOC limit shall apply. This requirement does not apply to general purpose cleaners, antiperspirant or deodorant products, and insecticide foggers.

D. Provisions follow concerning additional labeling requirements for aerosol adhesives.

1. In addition to the requirements specified in subsections A and C of this section and in 9VAC5-45-390, both the manufacturer and responsible party for each aerosol adhesive product subject to this article shall ensure that all products clearly display the following information on each product container that is manufactured on or after July 1, 2005.

a. The aerosol adhesive category as specified in 9VAC5-45-310 A or an abbreviation of the category shall be displayed;

b. (1) The applicable VOC standard for the product that is specified in 9VAC5-45-310 A, expressed as a percentage by weight, shall be displayed unless the product is included in an alternative control plan approved by the board, as provided in 9VAC5-45-320, and the product exceeds the applicable VOC standard;

(2) If the product is included in an alternative control plan approved by the board, and the product exceeds the applicable VOC standard specified in 9VAC5-45-310 A, the product shall be labeled with the term "ACP" or "ACP product";

c. If the product is classified as a special purpose spray adhesive, the applicable substrate or application or an abbreviation of the substrate or application that qualifies the product as special purpose shall be displayed;

d. If the manufacturer or responsible party uses an abbreviation as allowed by this subsection, an explanation of the abbreviation must be filed with the board before the abbreviation is used.

2. The information required in subdivision 1 of this subsection shall be displayed on the product container such that it is readily observable without removing or disassembling a portion of the product container or packaging. For the purposes of this subsection, information may be displayed on the bottom of a container as long as it is clearly legible without removing product packaging.

3. No person shall remove, alter, conceal, or deface the information required in subdivision 1 of this subsection prior to final sale of the product.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-350. Compliance.

The provisions of 9VAC5-45-20 (Compliance) apply.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-360. Compliance schedules.

Affected owners or other persons shall comply with the provisions of this article as expeditiously as possible but in no case later than:

1. January 1, 2005, in the Northern Virginia VOC Emissions Control Area; or

2. January 1, 2008, in the Fredericksburg VOC Emissions Control Area.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-370. Test methods and procedures.

A. The provisions of 9VAC5-45-30 (Emission testing) apply.

B. 1. Testing to determine compliance with the requirements of this article shall be performed using CARB Method 310 (see 9VAC5-20-21). Alternative methods that can accurately determine the concentration of VOCs in a subject product or its emissions may be used consistent with the approval requirements of 9VAC5-45-30 A.

2. In sections 3.5, 3.6, and 3.7 of CARB Method 310 (see 9VAC5-20-21), a process is specified for the "Initial Determination of VOC Content" and the "Final Determination of VOC Content." Information submitted to the board to meet the requirements of this section shall be available to the public except where the owner makes a showing satisfactory to the board under 9VAC5-170-60 B that the information meets the criteria in 9VAC5-170-60 C, in which case the information shall be handled in accordance with the procedures specified in §§ 10.1-1314 and 10.1-1314.1 of the Air Pollution Control Law of Virginia.

C. For VOC content determinations using product formulation and records, testing to determine compliance with the requirements of this article may also be demonstrated through calculation of the VOC content from records of the amounts of constituents used to make the product pursuant to the following criteria:

1. Compliance determinations based on these records may not be used unless the manufacturer of a consumer product keeps accurate records for each day of production of the amount and chemical composition of the individual product constituents. These records must be kept for at least three years.

2. For the purposes of this subsection, the VOC content shall be calculated according to the following equation:

where:

A = total net weight of unit (excluding container and packaging).

B = total weight of all VOCs per unit.

C = total weight of all exempted VOCs per unit as specified in 9VAC5-45-290.

3. If product records appear to demonstrate compliance with the VOC limits, but these records are contradicted by product testing performed using CARB Method 310 (see 9VAC5-20-21), the results of CARB Method 310 shall take precedence over the product records and may be used to establish a violation of the requirements of this article.

D. Testing to determine whether a product is a liquid or solid shall be performed using ASTM "Standard Test Method for Determining Whether a Material is a Liquid or a Solid" (see 9VAC5-20-21).

E. Testing to determine compliance with the certification requirements for charcoal lighter material shall be performed using the procedures specified in the South Coast Air Quality Management District Rule 1174 Ignition Method Compliance Certification Protocol (see 9VAC5-20-21).

F. Testing to determine distillation points of petroleum distillate-based charcoal lighter materials shall be performed using ASTM "Standard Test Method for Distillation of Petroleum Products at Atmospheric Pressure" (see 9VAC5-20-21).

G. No person shall create, alter, falsify, or otherwise modify records in such a way that the records do not accurately reflect the constituents used to manufacture a product, the chemical composition of the individual product, and other tests, processes, or records used in connection with product manufacture.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-380. Monitoring.

The provisions of 9VAC5-45-40 (Monitoring) apply.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-390. Notification, records and reporting.

A. The provisions of 9VAC5-45-50 (Notification, records and reporting) apply.

B. Upon 90 days written notice, the board may require a responsible party to report information for a consumer product the board may specify, including, but not limited to, all or part of the following information:

1. The company name of the responsible party and the party's address, telephone number, and designated contact person.

2. A showing satisfactory to the board under 9VAC5-170-60 B and C that supports any claim of confidentiality made pursuant to 9VAC5-170-60, §§ 10.1-1314 and 10.1-1314.1 of the Virginia Air Pollution Control Law, and other applicable state confidentiality requirements.

3. The product brand name for each consumer product subject to registration and, upon request by the board, the product label.

4. The product category to which the consumer product belongs.

5. The applicable product forms listed separately.

6. An identification of each product brand name and form as a "Household Product," "I&I Product," or both.

7. Separate sales in pounds per year, to the nearest pound, and the method used to calculate sales for each product form.

8. For registrations submitted by two companies, an identification of the company that is submitting relevant data separate from that submitted by the responsible party. All registration information from both companies shall be submitted by the date specified in this subsection.

9. For each product brand name and form, the net percent by weight of the total product, less container and packaging, composed of the following, rounded to the nearest one-tenth of a percent (0.1%):

a. Total exempt compounds.

b. Total LVP-VOCs that are not fragrances.

c. Total all other carbon-containing compounds that are not fragrances.

d. Total all noncarbon-containing compounds.

e. Total fragrance.

f. For products containing greater than 2.0% by weight fragrance:

(1) The percent of fragrances that are LVP-VOCs; and

(2) The percent of fragrances that are all other carbon-containing compounds.

g. Total paradichlorobenzene.

10. For each product brand name and form, the identity, including the specific chemical name and associated Chemical Abstract Services (CAS) number, of the following:

a. Each exempt compound; and

b. Each LVP-VOC that is not a fragrance.

11. If applicable, the weight percent composed of propellant for each product.

12. If applicable, an identification of the type of propellant.

C. In addition to the requirements of subdivision B 10 of this section, the responsible party shall report to the board the net percentage by weight of each ozone-depleting compound that is:

1. Listed in 9VAC5-45-310 I; and

2. Contained in a product subject to registration under subsection B of this section in an amount greater than 1.0% by weight.

D. Information submitted by responsible parties pursuant to this section shall be available to the public except where the owner makes a showing satisfactory to the board under 9VAC5-170-60 B that the information meets the criteria in 9VAC5-170-60 C, in which case the information shall be handled in accordance with the procedures specified in §§ 10.1-1314 and 10.1-1314.1 of the Air Pollution Control Law of Virginia.

E. Provisions follow concerning special recordkeeping and reporting requirements for consumer products that contain perchloroethylene or methylene chloride.

1. The requirements of this subsection shall apply to all responsible parties for consumer products that are subject to 9VAC5-45-310 A and contain perchloroethylene or methylene chloride. For the purposes of this subsection, a product contains perchloroethylene or methylene chloride if the product contains 1.0% or more by weight (exclusive of the container or packaging) of either perchloroethylene or methylene chloride.

2. For each consumer product that contains perchloroethylene or methylene chloride, the responsible party shall keep records of the following information for products sold during each calendar year, beginning with the year of the applicable compliance date specified in 9VAC5-45-360, and ending with the year 2010:

a. The product brand name and a copy of the product label with legible usage instructions;

b. The product category to which the consumer product belongs;

c. The applicable product form, listed separately;

d. For each product form listed in subdivision 2 c of this subsection, the total sales during the calendar year to the nearest pound (exclusive of the container or packaging), and the method used for calculating sales;

e. The weight percentage, to the nearest 0.10% of perchloroethylene and methylene chloride in the consumer product;

3. Upon 90 days written notice, the board may require a responsible party to report the information specified in subdivision 2 of this subsection.

4. Records required by subdivision 2 of this subsection shall be maintained by the responsible party for three calendar years from the date such records were created.

5. Alternative control plan notifications, records, and reporting shall be made as required by 9VAC5-45-320 and as required in the ACP agreement.

6. Innovative product notifications, records, and reporting shall be made as required by 9VAC5-45-330 and as required in the innovative products exemption notification letter.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

Article 4
Emission Standards for Consumer Products Manufactured on or after August 1, 2010

9VAC5-45-400. Applicability.

A. Except as provided in 9VAC5-45-410, the provisions of this article apply to any consumer product manufactured on or after August 1, 2010, that contains volatile organic compounds (VOCs). The provisions of Article 3 (9VAC5-45-280 et seq.) of this part apply to consumer products manufactured before August 1, 2010.

B. Except as provided in 9VAC5-45-410, the provisions of this article apply to any owner or other person who sells, supplies, offers for sale or manufactures for sale any consumer product.

C. The provisions of this article apply to owners and other persons in the Northern Virginia, Fredericksburg, and Richmond Volatile Organic Compound Emissions Control Areas designated in 9VAC5-20-206.

D. For purposes of this article, the terms "supply" or "supplied" do not include internal transactions within a business or governmental entity. These terms only apply to transactions between manufacturers/commercial distributors that sell or otherwise provide products to businesses/governmental entities/individuals.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-410. Exemptions.

A. This article shall not apply to any consumer product manufactured in the applicable volatile organic compound emissions control areas designated in 9VAC5-45-400 C for shipment and use outside of those areas.

B. The provisions of this article shall not apply to a manufacturer or distributor who sells, supplies, or offers for sale a consumer product that does not comply with the VOC standards specified in 9VAC5-45-430 A, as long as the manufacturer or distributor can demonstrate both that the consumer product is intended for shipment and use outside of the applicable volatile organic compound emissions control areas designated in 9VAC5-45-400 C, and that the manufacturer or distributor has taken reasonable prudent precautions to assure that the consumer product is not distributed to those applicable volatile organic compound emissions control areas. This subsection does not apply to consumer products that are sold, supplied, or offered for sale by any person to retail outlets in those applicable volatile organic compound emissions control areas.

C. The medium volatility organic compound (MVOC) content standards specified in 9VAC5-45-430 A for antiperspirants or deodorants shall not apply to ethanol.

D. The VOC limits specified in 9VAC5-45-430 A shall not apply to fragrances up to a combined level of 2.0% by weight contained in any consumer product and shall not apply to colorants up to a combined level of 2.0% by weight contained in any antiperspirant or deodorant.

E. The requirements of 9VAC5-45-430 A for antiperspirants or deodorants shall not apply to those volatile organic compounds that contain more than 10 carbon atoms per molecule and for which the vapor pressure is unknown, or that have a vapor pressure of 2 mm Hg or less at 20ºC.

F. The VOC limits specified in 9VAC5-45-430 A shall not apply to any LVP-VOC.

G. The VOC limits specified in 9VAC5-45-430 A shall not apply to air fresheners that are composed entirely of fragrance, less compounds not defined as VOCs or LVP-VOC exempted under subsection F of this section.

H. The VOC limits specified in 9VAC5-45-430 A shall not apply to air fresheners and insecticides containing at least 98% paradichlorobenzene.

I. The VOC limits specified in 9VAC5-45-430 A shall not apply to adhesives sold in containers of one fluid ounce or less.

J. The VOC limits specified in 9VAC5-45-430 A shall not apply to bait station insecticides. For the purpose of this section, bait station insecticides are containers enclosing an insecticidal bait that is not more than 0.5 ounce by weight, where the bait is designed to be ingested by insects and is composed of solid material feeding stimulants with less than 5.0% active ingredients.

K. A person who cannot comply with the requirements set forth in 9VAC5-45-430, because of extraordinary reasons beyond the person's reasonable control may apply in writing to the board for a waiver.

1. The application shall set forth:

a. The specific grounds upon which the waiver is sought, including the facts that support the extraordinary reasons that compliance is beyond the applicant's reasonable control;

b. The proposed dates by which compliance with the provisions of 9VAC5-45-430 will be achieved; and

c. A compliance report reasonably detailing the methods by which compliance will be achieved.

2. Upon receipt of an application containing the information required in subdivision 1 of this subsection, the board will hold a public hearing to determine whether, under what conditions, and to what extent, a waiver from the requirements in 9VAC5-45-430 is necessary and will be permitted. A hearing shall be initiated no later than 75 days after receipt of a waiver application. Notice of the time and place of the hearing shall be sent to the applicant by certified mail not less than 30 days prior to the hearing. Notice of the hearing shall also be submitted for publication in the Virginia Register of Regulations. At least 30 days prior to the hearing, the waiver application shall be made available to the public for inspection. Information submitted to the board by a waiver applicant shall be available to the public, except where the owner makes a showing satisfactory to the board under 9VAC5-170-60 B that the information meets the criteria in 9VAC5-170-60 C, in which case the information shall be handled in accordance with the procedures specified in §§ 10.1-1314 and 10.1-1314.1 of the Air Pollution Control Law of Virginia. The board may consider both public and confidential information in reaching a decision on a waiver application. Interested members of the public shall be allowed a reasonable opportunity to testify at the hearing and their testimony shall be considered.

3. No waiver shall be granted unless all of the following findings are made:

a. That, because of reasons beyond the reasonable control of the applicant, requiring compliance with 9VAC5-45-430 would result in extraordinary economic hardship;

b. That the public interest in mitigating the extraordinary hardship to the applicant by issuing the waiver outweighs the public interest in avoiding any increased emissions of air pollutants that would result from issuing the waiver; and

c. That the compliance report proposed by the applicant can reasonably be implemented and will achieve compliance as expeditiously as possible.

4. Any waiver may be issued as an order of the board. The waiver order shall specify a final compliance date by which the requirements of 9VAC5-45-430 will be achieved. Any waiver order shall contain a condition that specifies increments of progress necessary to assure timely compliance and such other conditions that the board, in consideration of the testimony received at the hearing, finds necessary to carry out the purposes of the Virginia Air Pollution Control Law and the regulations of the board.

5. A waiver shall cease to be effective upon failure of the party to whom the waiver was granted to comply with any term or condition of the waiver order.

6. Upon the application of anyone, the board may review and for good cause modify or revoke a waiver from requirements of 9VAC5-45-430.

L. The requirements of 9VAC5-45-460 A shall not apply to consumer products registered under FIFRA.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-420. Definitions.

A. For the purpose of applying this article in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meanings given them in subsection C of this section.

B. As used in this article, all terms not defined herein shall have the meanings given them in 9VAC5-10 (General Definitions), unless otherwise required by context.

C. Terms defined.

"ACP" or "alternative control plan" means any emissions averaging program approved by the board pursuant to the provisions of this article.

"ACP agreement" means the document signed by the board that includes the conditions and requirements of the board and that allows manufacturers to sell ACP products pursuant to the requirements of this article.

"ACP emissions" means the sum of the VOC emissions from every ACP product subject to an ACP agreement approving an ACP, during the compliance period specified in the ACP agreement, expressed to the nearest pound of VOC and calculated according to the following equation:

http://leg5.state.va.us/images/432474281332DEQGG_files/image001.gif

http://leg5.state.va.us/images/432474281332DEQGG_files/image002.gif

where:

1, 2,...N = each product in an ACP up to the maximum N.

Enforceable sales = (see definition in this section).

VOC content = one of the following:

1. For all products except for charcoal lighter material products:

http://leg5.state.va.us/images/432474281332DEQGG_files/image003.gif

where:

A = total net weight of unit (excluding container and packaging).

B = total weight of all VOCs per unit.

C = total weight of all exempted VOCs per unit, as specified in 9VAC5-45-410.

2. For charcoal lighter material products only:

http://leg5.state.va.us/images/432474281332DEQGG_files/image004.gif

where:

Certified emissions = (see definition in this section).

Certified use rate = (see definition in this section).

"ACP limit" means the maximum allowable ACP emissions during the compliance period specified in an ACP agreement approving an ACP, expressed to the nearest pound of VOC, and calculated according to the following equation:

http://leg5.state.va.us/images/432474281332DEQGG_files/image005.gif

where:

http://leg5.state.va.us/images/432474281332DEQGG_files/image006.gif

where:

Enforceable sales = (see definition in this section).

ACP standard = (see definition in this section).

1, 2,...N = each product in an ACP up to the maximum N.

"ACP product" means any consumer product subject to the VOC standards specified in 9VAC5-45-430 A, except those products that have been exempted as innovative products under 9VAC5-45-450.

"ACP reformulation" or "ACP reformulated" means the process of reducing the VOC content of an ACP product within the period that an ACP is in effect to a level that is less than the current VOC content of the product.

"ACP standard" means either the ACP product's pre-ACP VOC content or the applicable VOC standard specified in 9VAC5-45-430 A, whichever is the lesser of the two.

"ACP VOC standard" means the maximum allowable VOC content for an ACP product, determined as follows:

1. The applicable VOC standard specified in 9VAC5-45-430 A for all ACP products except for charcoal lighter material;

2. For charcoal lighter material products only, the VOC standard for the purposes of this article shall be calculated according to the following equation:

http://leg5.state.va.us/images/432474281332DEQGG_files/image007.gif

where:

0.020 = the certification emissions level for the product, as specified in 9VAC5-45-430 E.

Certified use rate = (see definition in this section).

"Adhesive" means any product that is used to bond one surface to another by attachment. Adhesive does not include products used on humans and animals, adhesive tape, contact paper, wallpaper, shelf liners, or any other product with an adhesive incorporated onto or in an inert substrate. For contact adhesive only, adhesive also does not include units of product, less packaging, that consist of more than one gallon. In addition, for construction, panel, and floor covering adhesive and general purpose adhesive only, adhesive does not include units of product, less packaging, that weigh more than one pound and consist of more than 16 fluid ounces. The package size limitations do not apply to aerosol adhesives.

"Adhesive remover" means a product designed to remove adhesive from either a specific substrate or a variety of substrates. Adhesive remover does not include products that remove adhesives intended exclusively for use on humans or animals. For the purpose of this definition and the following adhesive remover subcategories in subdivisions 1 through 4 of this definition, adhesive shall mean a substance used to bond one or more materials. Adhesives include, but are not limited to, caulk, sealant, glue, or similar substances used for the purpose of forming a bond.

1. "Floor and wall covering adhesive remover" means a product designed or labeled to remove floor or wall coverings and associated adhesive from the underlying substrate.

2. "Gasket or thread locking adhesive remover" means a product designed or labeled to remove gaskets or thread locking adhesives. Products labeled for dual use as a paint stripper and as a gasket remover or thread locking adhesive remover are considered gasket or thread locking adhesive remover.

3. "General purpose adhesive remover" means a product designed or labeled to remove cyanoacrylate adhesives and nonreactive adhesives or residue from a variety of substrates. General purpose adhesive remover includes, but is not limited to, products that remove thermoplastic adhesives, pressure sensitive adhesives, dextrin-based or starch-based adhesives, casein glues, rubber-based or latex-based adhesives, as well as products that remove stickers, decals, stencils, or similar materials. General purpose adhesive remover does not include floor or wall covering adhesive remover.

4. "Specialty adhesive remover" means a product designed to remove reactive adhesives from a variety of substrates. Reactive adhesives include adhesives that require a hardener or catalyst in order for the bond to occur. Examples of reactive adhesives include, but are not limited to, epoxies, urethanes, and silicones. Specialty adhesive remover does not include gasket or thread locking adhesive remover.

"Aerosol adhesive" means an aerosol product in which the spray mechanism is permanently housed in a nonrefillable can designed for hand-held application without the need for ancillary hoses or spray equipment. Aerosol adhesives include special purpose spray adhesives, mist spray adhesives, and web spray adhesives.

"Aerosol cooking spray" means any aerosol product designed either to reduce sticking on cooking and baking surfaces or to be applied on food, or both.

"Aerosol product" means a pressurized spray system that dispenses product ingredients by means of a propellant contained in a product or a product's carrier, or by means of a mechanically induced force. Aerosol product does not include pump sprays.

"Agricultural use" means the use of any pesticide or method or device for the control of pests in connection with the commercial production, storage, or processing of any animal or plant crop. Agricultural use does not include the sale or use of pesticides in properly labeled packages or containers that are intended for home use, use in structural pest control, industrial use, or institutional use. For the purposes of this definition only:

1. "Home use" means use in a household or its immediate environment.

2. "Industrial use" means use for or in a manufacturing, mining, or chemical process or use in the operation of factories, processing plants, and similar sites.

3. "Institutional use" means use within the perimeter of, or on property necessary for the operation of, buildings such as hospitals, schools, libraries, auditoriums, and office complexes.

4. "Structural pest control" means a use requiring a license under the applicable state pesticide licensing requirement.

"Air freshener" means any consumer product including, but not limited to, sprays, wicks, powders, and crystals, designed for the purpose of masking odors or freshening, cleaning, scenting, or deodorizing the air. Air fresheners do not include products that are used on the human body, products that function primarily as cleaning products (as indicated on a product label) or as toilet/urinal care products, disinfectant products claiming to deodorize by killing germs on surfaces, or institutional or industrial disinfectants when offered for sale solely through institutional and industrial channels of distribution. Air fresheners do include spray disinfectants and other products that are expressly represented for use as air fresheners, except institutional and industrial disinfectants when offered for sale through institutional and industrial channels of distribution. To determine whether a product is an air freshener, all verbal and visual representations regarding product use on the label or packaging and in the product's literature and advertising may be considered. The presence of, and representations about, a product's fragrance and ability to deodorize (resulting from surface application) shall not constitute a claim of air freshening.

"All other carbon-containing compounds" means all other compounds that contain at least one carbon atom and are not an "exempt compound" or an "LVP-VOC."

"All other forms" means all consumer product forms for which no form-specific VOC standard is specified. Unless specified otherwise by the applicable VOC standard, all other forms include, but are not limited to, solids, liquids, wicks, powders, crystals, and cloth or paper wipes (towelettes).

"Alternative control plan" or "ACP" means any emissions averaging program approved by the board pursuant to the provisions of this article.

"Antimicrobial hand or body cleaner or soap" means a cleaner or soap that is designed to reduce the level of microorganisms on the skin through germicidal activity. Antimicrobial hand or body cleaner or soap includes, but is not limited to, antimicrobial hand or body washes or cleaners, food handler hand washes, health care personnel hand washes, pre-operative skin preparations, and surgical scrubs. Antimicrobial hand or body cleaner or soap does not include prescription drug products, antiperspirants, astringent or toner, deodorant, facial cleaner or soap, general-use hand or body cleaner or soap, hand dishwashing detergent (including antimicrobial), heavy-duty hand cleaner or soap, medicated astringent or medicated toner, and rubbing alcohol.

"Antiperspirant" means any product including, but not limited to, aerosols, roll-ons, sticks, pumps, pads, creams, and squeeze-bottles, that is intended by the manufacturer to be used to reduce perspiration in the human axilla by at least 20% in at least 50% of a target population.

"Anti-static product" means a product that is labeled to eliminate, prevent, or inhibit the accumulation of static electricity. Anti-static products do not include electronic cleaners, floor polish or waxes, floor coatings, and products that meet the definition of aerosol coating products or architectural coatings.

"Architectural coating" means a coating applied to stationary structures and their appurtenances, to mobile homes, to pavements, or to curbs.

"ASTM" means the American Society for Testing and Materials.

"Astringent or toner" means any product not regulated as a drug by the United States Food and Drug Administration that is applied to the skin for the purpose of cleaning or tightening pores. This category also includes clarifiers and substrate-impregnated products. This category does not include any hand, face, or body cleaner or soap product, medicated astringent or medicated toner, cold cream, lotion, or antiperspirant.

"Automotive brake cleaner" means a cleaning product designed to remove oil, grease, brake fluid, brake pad material, or dirt from motor vehicle brake mechanisms.

"Automotive hard paste wax" means an automotive wax or polish that is:

1. Designed to protect and improve the appearance of automotive paint surfaces;

2. A solid at room temperature; and

3. Contains no water.

"Automotive instant detailer" means a product designed for use in a pump spray that is applied to the painted surface of automobiles and wiped off prior to the product being allowed to dry.

"Automotive rubbing or polishing compound" means a product designed primarily to remove oxidation, old paint, scratches or swirl marks, and other defects from the painted surfaces of motor vehicles without leaving a protective barrier.

"Automotive wax, polish, sealant, or glaze" means a product designed to seal out moisture, increase gloss, or otherwise enhance a motor vehicle's painted surfaces. Automotive wax, polish, sealant, or glaze includes, but is not limited to, products designed for use in auto body repair shops and drive-through car washes, as well as products designed for the general public. Automotive wax, polish, sealant, or glaze does not include automotive rubbing or polishing compounds, automotive wash and wax products, surfactant-containing car wash products, and products designed for use on unpainted surfaces such as bare metal, chrome, glass, or plastic.

"Automotive windshield washer fluid" means any liquid designed for use in a motor vehicle windshield washer system either as an antifreeze or for the purpose of cleaning, washing, or wetting the windshield. Automotive windshield washer fluid also includes liquids that are (i) packaged as a pre-wetted, single-use manual wipe and (ii) designed exclusively for cleaning, washing, or wetting automotive glass surfaces for the purpose of restoring or maintaining visibility for the driver. Glass cleaners that are intended for use on other glass surfaces are not included in this definition. Automotive windshield washer fluid does not include fluids placed by the manufacturer in a new vehicle.

"Bathroom and tile cleaner" means a product designed to clean tile or surfaces in bathrooms. Bathroom and tile cleaners do not include products designed primarily to clean toilet bowls, toilet tanks, or urinals.

"Bug and tar remover" means a product labeled to remove either or both of the following from painted motor vehicle surfaces without causing damage to the finish: (i) biological residues, such as insect carcasses and tree sap, and (ii) road grime, such as road tar, roadway paint markings, and asphalt.

"CARB" means the California Air Resources Board.

"Carburetor or fuel-injection air intake cleaner" means a product designed to remove fuel deposits, dirt, or other contaminants from a carburetor, choke, throttle body of a fuel-injection system, or associated linkages. Carburetor or fuel-injection air intake cleaner does not include products designed exclusively to be introduced directly into the fuel lines or fuel storage tank prior to introduction into the carburetor or fuel injectors.

"Carpet and upholstery cleaner" means a cleaning product designed for the purpose of eliminating dirt and stains on rugs, carpeting, and the interior of motor vehicles or on household furniture or objects upholstered or covered with fabrics such as wool, cotton, nylon, or other synthetic fabrics. Carpet and upholstery cleaners include, but are not limited to, products that make fabric protectant claims. Carpet and upholstery cleaners do not include general purpose cleaners, spot removers, vinyl or leather cleaners, dry cleaning fluids, or products designed exclusively for use at industrial facilities engaged in furniture or carpet manufacturing.

"Certified emissions" means the emissions level for products approved under 9VAC5-45-430 E, as determined pursuant to South Coast Air Quality Management District Rule 1174 Ignition Method Compliance Certification Protocol (see 9VAC5-20-21), expressed to the nearest 0.001 pound VOC per start.

"Certified use rate" means the usage level for products approved under 9VAC5-45-430 E, as determined pursuant to South Coast Air Quality Management District Rule 1174 Ignition Method Compliance Certification Protocol (see 9VAC5-20-21), expressed to the nearest 0.001 pound certified product used per start.

"Charcoal lighter material" means any combustible material designed to be applied on, incorporated in, added to, or used with charcoal to enhance ignition. Charcoal lighter material does not include any of the following:

1. Electrical starters and probes;

2. Metallic cylinders using paper tinder;

3. Natural gas;

4. Propane; or

5. Fat wood.

"Colorant" means any pigment or coloring material used in a consumer product for an aesthetic effect or to dramatize an ingredient.

"Compliance period" means the period of time, not to exceed one year, for which the ACP limit and ACP emissions are calculated and for which compliance with the ACP limit is determined, as specified in the ACP agreement approving an ACP.

"Construction, panel, and floor covering adhesive" means any one-component adhesive that is designed exclusively for the installation, remodeling, maintenance, or repair of:

1. Structural and building components that include, but are not limited to, beams, trusses, studs, paneling (drywall or drywall laminates, fiberglass reinforced plastic (FRP), plywood, particle board, insulation board, predecorated hardboard or tileboard, etc.), ceiling and acoustical tile, molding, fixtures, countertops or countertop laminates, cove or wall bases, and flooring or subflooring; or

2. Floor or wall coverings that include, but are not limited to, wood or simulated wood covering, carpet, carpet pad or cushion, vinyl-backed carpet, flexible flooring material, nonresilient flooring material, mirror tiles and other types of tiles, and artificial grass.

Construction, panel, and floor covering adhesive does not include floor seam sealer.

"Consumer" means a person who purchases or acquires a consumer product for personal, family, household, or institutional use. Persons acquiring a consumer product for resale are not consumers for that product.

"Consumer product" means a chemically formulated product used by household and institutional consumers including, but not limited to, detergents; cleaning compounds; polishes; floor finishes; cosmetics; personal care products; home, lawn, and garden products; disinfectants; sanitizers; aerosol paints; and automotive specialty products, but does not include other paint products, furniture coatings, or architectural coatings. As used in this article, consumer products shall also refer to aerosol adhesives, including aerosol adhesives used for consumer, industrial, or commercial uses.

"Contact adhesive" means an adhesive that:

1. Is designed for application to both surfaces to be bonded together;

2. Is allowed to dry before the two surfaces are placed in contact with each other;

3. Forms an immediate bond that is impossible, or difficult, to reposition after both adhesive-coated surfaces are placed in contact with each other; and

4. Does not need sustained pressure or clamping of surfaces after the adhesive-coated surfaces have been brought together using sufficient momentary pressure to establish full contact between both surfaces.

Contact adhesive does not include rubber cements that are primarily intended for use on paper substrates. Contact adhesive also does not include vulcanizing fluids that are designed and labeled for tire repair only.

"Contact adhesive - general purpose" means any contact adhesive that is not a contact adhesive - special purpose.

"Contact adhesive - special purpose" means a contact adhesive that is used as follows:

1. To bond melamine-covered board, unprimed metal, unsupported vinyl, Teflon®, ultra-high molecular weight polyethylene, rubber, high pressure laminate or wood veneer 1/16 inch or less in thickness to any porous or nonporous surface, and is sold in units of product, less packaging, that contain more than eight fluid ounces; or

2. In automotive applications that are either:

a. Automotive under-the-hood applications requiring heat, oil, or gasoline resistance; or

b. Body-side molding, automotive weatherstrip, or decorative trim.

"Container or packaging" means the part or parts of the consumer or institutional product that serve only to contain, enclose, incorporate, deliver, dispense, wrap, or store the chemically formulated substance or mixture of substances that is solely responsible for accomplishing the purposes for which the product was designed or intended. Containers or packaging include any article onto or into which the principal display panel and other accompanying literature or graphics are incorporated, etched, printed, or attached.

"Contact person" means a representative that has been designated by the responsible ACP party for the purpose of reporting or maintaining information specified in the ACP agreement approving an ACP.

"Crawling bug insecticide" means an insecticide product that is designed for use against ants, cockroaches, or other household crawling arthropods, including, but not limited to, mites, silverfish or spiders. Crawling bug insecticide does not include products designed to be used exclusively on humans or animals or a house dust mite product. For the purposes of this definition only:

1. "House dust mite product" means a product whose label, packaging, or accompanying literature states that the product is suitable for use against house dust mites, but does not indicate that the product is suitable for use against ants, cockroaches, or other household crawling arthropods.

2. "House dust mite" means mites that feed primarily on skin cells shed in the home by humans and pets and that belong to the phylum Arthropoda, the subphylum Chelicerata, the class Arachnida, the subclass Acari, the order Astigmata, and the family Pyroglyphidae.

"Date-code" means the day, month, and year on which the consumer product was manufactured, filled, or packaged, or a code indicating such a date.

"Deodorant" means any product including, but not limited to, aerosols, roll-ons, sticks, pumps, pads, creams, and squeeze-bottles, that indicates or depicts on the container or packaging, or on any sticker or label affixed thereto, that the product can be used on or applied to the human axilla to provide a scent or minimize odor. A deodorant body spray product that indicates or depicts on the container or packaging, or on any sticker or label affixed thereto, that it can be used on or applied to the human axilla, is a deodorant.

"Deodorant body spray" means a personal fragrance product with 20% or less fragrance that is designed for application all over the human body to provide a scent. A deodorant body spray product that indicates or depicts on the container or packaging, or on any sticker or label affixed thereto, that it can be used on or applied to the human axilla, is a deodorant.

"Device" means an instrument or contrivance (other than a firearm) that is designed for trapping, destroying, repelling, or mitigating a pest or other form of plant or animal life (other than human and other than bacterium, virus, or another microorganism on or in living humans or other living animals); but not including equipment used for the application of pesticides when sold separately therefrom.

"Disinfectant" means a product intended to destroy or irreversibly inactivate infectious or other undesirable bacteria, pathogenic fungi, or viruses on surfaces or inanimate objects and whose label is registered under the FIFRA. Disinfectant does not include any of the following:

1. Products designed solely for use on humans or animals;

2. Products designed for agricultural use;

3. Products designed solely for use in swimming pools, therapeutic tubs, or hot tubs; or

4. Products that, as indicated on the principal display panel or label, are designed primarily for use as bathroom and tile cleaners, glass cleaners, general purpose cleaners, toilet bowl cleaners, or metal polishes.

"Distributor" means a person to whom a consumer product is sold or supplied for the purposes of resale or distribution in commerce, except that manufacturers, retailers, and consumers are not distributors.

"Double phase aerosol air freshener" means an aerosol air freshener with the liquid contents in two or more distinct phases that require the product container to be shaken before use to mix the phases, producing an emulsion.

"Dry cleaning fluid" means a nonaqueous liquid product designed and labeled exclusively for use on:

1. Fabrics that are labeled "for dry clean only," such as clothing or drapery; or

2. S-coded fabrics.

Dry cleaning fluid includes, but is not limited to, those products used by commercial dry cleaners and commercial businesses that clean fabrics such as draperies at the customer's residence or work place. Dry cleaning fluid does not include spot remover or carpet and upholstery cleaner. For the purposes of this definition, "S-coded fabric" means an upholstery fabric designed to be cleaned only with water-free spot cleaning products as specified by the American Furniture Manufacturers Association Joint Industry Fabrics Standards Committee, Woven and Knit Residential Upholstery Fabric Standards and Guidelines (see 9VAC5-20-21).

"Dusting aid" means a product designed to assist in removing dust and other soils from floors and other surfaces without leaving a wax or silicone-based coating. Dusting aid does not include pressurized gas dusters.

"Electrical cleaner" means a product labeled to remove heavy soils such as grease, grime, or oil from electrical equipment, including, but not limited to, electric motors, armatures, relays, electric panels, or generators. Electrical cleaner does not include general purpose cleaners, general purpose degreasers, dusting aids, electronic cleaners, energized electrical cleaners, pressurized gas dusters, engine degreasers, anti-static products, or products designed to clean the casings or housings of electrical equipment.

"Electronic cleaner" means a product labeled for the removal of dirt, moisture, dust, flux or oxides from the internal components of electronic or precision equipment such as circuit boards, and the internal components of electronic devices, including but not limited to, radios, compact disc (CD) players, digital video disc (DVD) players, and computers. Electronic cleaner does not include general purpose cleaners, general purpose degreasers, dusting aids, pressurized gas dusters, engine degreasers, electrical cleaners, energized electrical cleaners, anti-static products, or products designed to clean the casings or housings of electronic equipment.

"Energized electrical cleaner" means a product that meets both of the following criteria:

1. The product is labeled to clean or degrease electrical equipment, where cleaning or degreasing is accomplished when electrical current exists, or when there is a residual electrical potential from a component, such as a capacitor;

2. The product label clearly displays the statements: "Energized equipment use only. Not to be used for motorized vehicle maintenance, or their parts."

Energized electrical cleaner does not include electronic cleaner.

"Enforceable sales" means the total amount of an ACP product sold for use in the applicable volatile organic compound emissions control areas designated in 9VAC5-45-400 C during the applicable compliance period specified in the ACP agreement approving an ACP, as determined through enforceable sales records (expressed to the nearest pound, excluding product container and packaging).

"Enforceable sales record" means a written, point-of-sale record or another board-approved system of documentation from which the mass, in pounds (less product container and packaging), of an ACP product sold to the end user in the applicable volatile organic compound emissions control areas designated in 9VAC5-45-400 C during the applicable compliance period can be accurately documented. For the purposes of this article, enforceable sales records include, but are not limited to, the following types of records:

1. Accurate records of direct retail or other outlet sales to the end user during the applicable compliance period;

2. Accurate compilations, made by independent market surveying services, of direct retail or other outlet sales to the end users for the applicable compliance period, provided that a detailed method that can be used to verify data composing such summaries is submitted by the responsible ACP party and approved by the board; and

3. Other accurate product sales records acceptable to the board.

"Engine degreaser" means a cleaning product designed to remove grease, grime, oil, and other contaminants from the external surfaces of engines and other mechanical parts.

"Exempt compound" means acetone, ethane, methyl acetate, parachlorobenzotrifluoride (1-chloro-4-trifluoromethyl benzene), or perchloroethylene (tetrachloroethylene).

"Existing product" means any formulation of the same product category and form sold, supplied, manufactured, or offered for sale prior to March 9, 2005, or any subsequently introduced identical formulation.

"Fabric protectant" means a product designed to be applied to fabric substrates to protect the surface from soiling from dirt and other impurities or to reduce absorption of liquid into the fabric's fibers. Fabric protectant does not include waterproofers, products designed for use solely on leather, or products designed for use solely on fabrics that are labeled "for dry clean only" and sold in containers of 10 fluid ounces or less.

"Fabric refresher" means a product labeled to neutralize or eliminate odors on non-laundered fabric including, but not limited to, soft household surfaces, rugs, carpeting, draperies, bedding, automotive interiors, footwear, athletic equipment, clothing or on household furniture or objects upholstered or covered with fabrics such as, but not limited to, wool, cotton, or nylon. Fabric refresher does not include anti-static products, carpet and upholstery cleaners, soft household surface sanitizers, footwear or leather care products, spot removers, or disinfectants, or products labeled for application to both fabric and human skin. For the purposes of this definition only, soft household surface sanitizer means a product labeled to neutralize or eliminate odors on surfaces listed above whose label is registered as a sanitizer under FIFRA.

"Facial cleaner or soap" means a cleaner or soap designed primarily to clean the face. Facial cleaner or soap includes, but is not limited to, facial cleansing creams, semisolids, liquids, lotions, and substrate-impregnated forms. Facial cleaner or soap does not include prescription drug products, antimicrobial hand or body cleaner or soap, astringent or toner, general-use hand or body cleaner or soap, medicated astringent or medicated toner, or rubbing alcohol.

"Fat wood" means pieces of wood kindling with high naturally occurring levels of sap or resin that enhance ignition of the kindling. Fat wood does not include kindling with substances added to enhance flammability, such as wax-covered or wax-impregnated wood-based products.

"FIFRA" means the Federal Insecticide, Fungicide, and Rodenticide Act (7 USC § 136-136y).

"Flea and tick insecticide" means an insecticide product that is designed for use against fleas, ticks, their larvae, or their eggs. Flea and tick insecticide does not include products that are designed to be used exclusively on humans or animals and their bedding.

"Flexible flooring material" means asphalt, cork, linoleum, no-wax, rubber, seamless vinyl, and vinyl composite flooring.

"Floor coating" means an opaque coating that is labeled and designed for application to flooring, including but not limited to, decks, porches, steps, and other horizontal surfaces that may be subject to foot traffic.

"Floor polish or wax" means a wax, polish, or other product designed to polish, protect, or enhance floor surfaces by leaving a protective coating that is designed to be periodically replenished. Floor polish or wax does not include spray buff products, products designed solely for the purpose of cleaning floors, floor finish strippers, products designed for unfinished wood floors, and coatings subject to architectural coatings regulations.

"Floor seam sealer" means a product designed and labeled exclusively for bonding, fusing, or sealing (coating) seams between adjoining rolls of installed flexible sheet flooring.

"Floor wax stripper" means a product designed to remove natural or synthetic floor polishes or waxes through breakdown of the polish or wax polymers or by dissolving or emulsifying the polish or wax. Floor wax stripper does not include aerosol floor wax strippers or products designed to remove floor wax solely through abrasion.

"Flying bug insecticide" means an insecticide product that is designed for use against flying insects or other flying arthropods, including but not limited to flies, mosquitoes, moths, or gnats. Flying bug insecticide does not include wasp and hornet insecticide, products that are designed to be used exclusively on humans or animals, or a moth-proofing product. For the purposes of this definition only, "moth-proofing product" means a product whose label, packaging, or accompanying literature indicates that the product is designed to protect fabrics from damage by moths, but does not indicate that the product is suitable for use against flying insects or other flying arthropods.

"Footwear or leather care product" means any product designed or labeled to be applied to footwear or to other leather articles or components, to maintain, enhance, clean, protect, or modify the appearance, durability, fit, or flexibility of the footwear, leather article or component. Footwear includes both leather and non-leather foot apparel. Footwear or leather care product does not include fabric protectants; general purpose adhesives; contact adhesives; vinyl/fabric/leather/polycarbonate coatings; rubber and vinyl protectants; fabric refreshers; products solely for deodorizing; or sealant products with adhesive properties used to create external protective layers greater than 2 millimeters thick.

"Fragrance" means a substance or complex mixture of aroma chemicals, natural essential oils, and other functional components with a combined vapor pressure not in excess of 2 mm of Hg at 20ºC, the sole purpose of which is to impart an odor or scent, or to counteract a malodor.

"Furniture coating" means a paint designed for application to room furnishings including, but not limited to, cabinets (kitchen, bath and vanity), tables, chairs, beds, and sofas.

"Furniture maintenance product" means a wax, polish, conditioner, or other product designed for the purpose of polishing, protecting, or enhancing finished wood surfaces other than floors. Furniture maintenance products do not include dusting aids, wood cleaners and products designed solely for the purpose of cleaning, and products designed to leave a permanent finish such as stains, sanding sealers, and lacquers.

"Gel" means a colloid in which the disperse phase has combined with the continuous phase to produce a semisolid material, such as jelly.

"General purpose adhesive" means a nonaerosol adhesive designed for use on a variety of substrates. General purpose adhesive does not include:

1. Contact adhesives;

2. Construction, panel, and floor covering adhesives;

3. Adhesives designed exclusively for application on one specific category of substrates (i.e., substrates that are composed of similar materials, such as different types of metals, paper products, ceramics, plastics, rubbers, or vinyls); or

4. Adhesives designed exclusively for use on one specific category of articles (i.e., articles that may be composed of different materials but perform a specific function, such as gaskets, automotive trim, weather-stripping, or carpets).

"General purpose cleaner" means a product designed for general all-purpose cleaning, in contrast to cleaning products designed to clean specific substrates in certain situations. General purpose cleaner includes products designed for general floor cleaning, kitchen or countertop cleaning, and cleaners designed to be used on a variety of hard surfaces and does not include general purpose degreasers and electronic cleaners.

"General purpose degreaser" means a product labeled to remove or dissolve grease, grime, oil, and other oil-based contaminants from a variety of substrates, including automotive or miscellaneous metallic parts. General purpose degreaser does not include engine degreaser, general purpose cleaner, adhesive remover, electronic cleaner, electrical cleaner, energized electrical cleaner, metal polish or cleanser, products used exclusively in solvent cleaning tanks or related equipment, or products that are (i) sold exclusively to establishments that manufacture or construct goods or commodities; and (ii) labeled "not for retail sale." Solvent cleaning tanks or related equipment includes, but is not limited to, cold cleaners, vapor degreasers, conveyorized degreasers, film cleaning machines, or products designed to clean miscellaneous metallic parts by immersion in a container.

"General-use hand or body cleaner or soap" means a cleaner or soap designed to be used routinely on the skin to clean or remove typical or common dirt and soils. General-use hand or body cleaner or soap includes, but is not limited to, hand or body washes, dual-purpose shampoo-body cleaners, shower or bath gels, and moisturizing cleaners or soaps. General-use hand or body cleaner or soap does not include prescription drug products, antimicrobial hand or body cleaner or soap, astringent or toner, facial cleaner or soap, hand dishwashing detergent (including antimicrobial), heavy-duty hand cleaner or soap, medicated astringent or medicated toner, or rubbing alcohol.

"Glass cleaner" means a cleaning product designed primarily for cleaning surfaces made of glass. Glass cleaner does not include products designed solely for the purpose of cleaning optical materials used in eyeglasses, photographic equipment, scientific equipment, and photocopying machines.

"Graffiti remover" means a product labeled to remove spray paint, ink, marker, crayon, lipstick, nail polish, or shoe polish, from a variety of non-cloth or non-fabric substrates. Graffiti remover does not include paint remover or stripper, nail polish remover, or spot remover. Products labeled for dual use as both a paint stripper and graffiti remover are considered graffiti removers.

"Gross sales" means the estimated total sales of an ACP product in the applicable volatile organic compound emissions control areas designated in 9VAC5-45-400 C during a specific compliance period (expressed to the nearest pound), based on either of the following methods, whichever the responsible ACP party demonstrates to the satisfaction of the board will provide an accurate sales estimate:

1. Apportionment of national or regional sales of the ACP product to sales, determined by multiplying the average national or regional sales of the product by the fraction of the national or regional population, respectively, that is represented by the current population of the applicable volatile organic compound emissions control areas designated in 9VAC5-45-400 C; or

2. Another documented method that provides an accurate estimate of the total current sales of the ACP product.

"Hair mousse" means a hairstyling foam designed to facilitate styling of a coiffure and provide limited holding power.

"Hair shine" means a product designed for the primary purpose of creating a shine when applied to the hair. Hair shine includes, but is not limited to, dual-use products designed primarily to impart a sheen to the hair. Hair shine does not include hair spray, hair mousse, hair styling product, hair styling gel, or products whose primary purpose is to condition or hold the hair.

"Hair spray" means a consumer product that is applied to styled hair, and is designed or labeled to provide sufficient rigidity to hold, retain and/or finish the style of the hair for a period of time. Hair spray includes aerosol hair sprays, pump hair sprays, spray waxes; color, glitter, or sparkle hairsprays that make finishing claims; and products that are both a styling and finishing product. Hair spray does not include spray products that are intended to aid in styling but does not provide finishing of a hairstyle. For the purposes of this article, "finish" or "finishing" means the maintaining or holding of previously styled hair for a period of time. For the purposes of this article, "styling" means the forming, sculpting, or manipulating the hair to temporarily alter the hair's shape.

"Hair styling product" means a consumer product that is designed or labeled for the application to wet, damp or dry hair to aid in defining, shaping, lifting, styling and or sculpting of the hair. Hair styling product includes, but is not limited to hair balm; clay; cream; creme; curl straightener; gel; liquid; lotion; paste; pomade; putty; root lifter; serum; spray gel; stick; temporary hair straightener; wax; spray products that aid in styling but do not provide finishing of a hairstyle; and leave-in volumizers, detanglers or conditioners that make styling claims. Hair styling product does not include hair mousse, hair shine, hair spray, or shampoos or conditioners that are rinsed from the hair prior to styling. For the purposes of this article, "finish" or "finishing" means the maintaining or holding of previously styled hair for a period of time. For the purposes of this article, "styling" means the forming, sculpting, or manipulating the hair to temporarily alter the hair's shape.

"Heavy-duty hand cleaner or soap" means a product designed to clean or remove difficult dirt and soils such as oil, grease, grime, tar, shellac, putty, printer's ink, paint, graphite, cement, carbon, asphalt, or adhesives from the hand with or without the use of water. Heavy-duty hand cleaner or soap does not include prescription drug products, antimicrobial hand or body cleaner or soap, astringent or toner, facial cleaner or soap, general-use hand or body cleaner or soap, medicated astringent or medicated toner, or rubbing alcohol.

"Herbicide" means a pesticide product designed to kill or retard a plant's growth, but excludes products that are (i) for agricultural use, or (ii) restricted materials that require a permit for use and possession.

"High volatility organic compound" or "HVOC" means a volatile organic compound that exerts a vapor pressure greater than 80 millimeters of mercury (mm Hg) when measured at 20ºC.

"Household product" means a consumer product that is primarily designed to be used inside or outside of living quarters or residences that are occupied or intended for occupation by people, including the immediate surroundings.

"Insecticide" means a pesticide product that is designed for use against insects or other arthropods, but excluding products that are:

1. For agricultural use;

2. For a use that requires a structural pest control license under applicable state laws or regulations; or

3. Materials classified for restricted use pursuant to 40 CFR 152.75 and require a pesticide business license from the Virginia Pesticide Control Board pursuant to 2VAC20-40-20 for use and possession.

"Insecticide fogger" means an insecticide product designed to release all or most of its content as a fog or mist into indoor areas during a single application.

"Institutional product" or "industrial and institutional (I&I) product" means a consumer product that is designed for use in the maintenance or operation of an establishment that:

1. Manufactures, transports, or sells goods or commodities, or provides services for profit; or

2. Is engaged in the nonprofit promotion of a particular public, educational, or charitable cause.

Establishments include, but are not limited to, government agencies, factories, schools, hospitals, sanitariums, prisons, restaurants, hotels, stores, automobile service and parts centers, health clubs, theaters, or transportation companies. Institutional product does not include household products and products that are incorporated into or used exclusively in the manufacture or construction of the goods or commodities at the site of the establishment.

"Label" means written, printed, or graphic matter affixed to, applied to, attached to, blown into, formed, molded into, embossed on, or appearing upon a consumer product or consumer product package, for purposes of branding, identifying, or giving information with respect to the product or to the contents of the package.

"Laundry prewash" means a product that is designed for application to a fabric prior to laundering and that supplements and contributes to the effectiveness of laundry detergents or provides specialized performance.

"Laundry starch product" means a product that is designed for application to a fabric, either during or after laundering, to impart and prolong a crisp, fresh look and may also act to help ease ironing of the fabric. Laundry starch product includes, but is not limited to, fabric finish, sizing, and starch.

"Lawn and garden insecticide" means an insecticide product labeled primarily to be used in household lawn and garden areas to protect plants from insects or other arthropods. Notwithstanding the requirements of 9VAC5-45-460 C, aerosol lawn and garden insecticides may claim to kill insects or other arthropods.

"Liquid" means a substance or mixture of substances that is capable of a visually detectable flow as determined under ASTM "Standard Test Method for Determining Whether a Material is a Liquid or a Solid" (see 9VAC5-20-21). Liquid does not include powders or other materials that are composed entirely of solid particles.

"Lubricant" means a product designed to reduce friction, heat, noise, or wear between moving parts, or to loosen rusted or immovable parts or mechanisms. Lubricant does not include automotive power steering fluids; products for use inside power generating motors, engines, and turbines, and their associated power-transfer gearboxes; two-cycle oils or other products designed to be added to fuels; products for use on the human body or animals; or products that are:

1. Sold exclusively to establishments that manufacture or construct goods or commodities; and

2. Labeled "not for retail sale."

"LVP content" means the total weight, in pounds, of LVP-VOC in an ACP product multiplied by 100 and divided by the product's total net weight (in pounds, excluding container and packaging), expressed to the nearest 0.1.

"LVP-VOC" means a chemical compound or mixture that contains at least one carbon atom and meets one of the following:

1. Has a vapor pressure less than 0.1 mm Hg at 20ºC, as determined by CARB Method 310 (see 9VAC5-20-21);

2. Is a chemical compound with more than 12 carbon atoms, or a chemical mixture composed solely of compounds with more than 12 carbon atoms as verified by formulation data, and the vapor pressure and boiling point are unknown;

3. Is a chemical compound with a boiling point greater than 216ºC, as determined by CARB Method 310 (see 9VAC5-20-21); or

4. Is the weight percent of a chemical mixture that boils above 216ºC, as determined by CARB Method 310 (see 9VAC5-20-21).

For the purposes of the definition of LVP-VOC, "chemical compound" means a molecule of definite chemical formula and isomeric structure, and "chemical mixture" means a substrate composed of two or more chemical compounds.

"Manufacturer" means a person who imports, manufactures, assembles, produces, packages, repackages, or relabels a consumer product.

"Medicated astringent or medicated toner" means a product regulated as a drug by the United States Food and Drug Administration that is applied to the skin for the purpose of cleaning or tightening pores. Medicated astringent or medicated toner includes, but is not limited to, clarifiers and substrate-impregnated products. Medicated astringent or medicated toner does not include hand, face, or body cleaner or soap products, astringent or toner, cold cream, lotion, antiperspirants, or products that must be purchased with a doctor's prescription.

"Medium volatility organic compound" or "MVOC" means a volatile organic compound that exerts a vapor pressure greater than 2 mm Hg and less than or equal to 80 mm Hg when measured at 20ºC.

"Metal polish or cleanser" means a product designed primarily to improve the appearance of finished metal, metallic, or metallized surfaces by physical or chemical action. To "improve the appearance" means to remove or reduce stains, impurities, or oxidation from surfaces or to make surfaces smooth and shiny. Metal polish or cleanser includes, but is not limited to, metal polishes used on brass, silver, chrome, copper, stainless steel, and other ornamental metals. Metal polish or cleanser does not include automotive wax, polish, sealant, or glaze, wheel cleaner, paint remover or stripper, products designed and labeled exclusively for automotive and marine detailing, or products designed for use in degreasing tanks.

"Missing data days" means the number of days in a compliance period for which the responsible ACP party has failed to provide the required enforceable sales or VOC content data to the board, as specified in the ACP agreement.

"Mist spray adhesive" means an aerosol that is not a special purpose spray adhesive and that delivers a particle or mist spray, resulting in the formation of fine, discrete particles that yield a generally uniform and smooth application of adhesive to the substrate.

"Multipurpose dry lubricant" means a lubricant that is:

1. Designed and labeled to provide lubricity by depositing a thin film of graphite, molybdenum disulfide ("moly"), or polytetrafluoroethylene or closely related fluoropolymer ("teflon") on surfaces; and

2. Designed for general purpose lubrication, or for use in a wide variety of applications.

"Multipurpose lubricant" means a lubricant designed for general purpose lubrication, or for use in a wide variety of applications. Multipurpose lubricant does not include multipurpose dry lubricants, penetrants, or silicone-based multipurpose lubricants.

"Multipurpose solvent" means an organic liquid designed to be used for a variety of purposes, including cleaning or degreasing of a variety of substrates, or thinning, dispersing, or dissolving other organic materials. Multipurpose solvent includes solvents used in institutional facilities, except for laboratory reagents used in analytical, educational, research, scientific, or other laboratories. Multipurpose solvent does not include solvents used in cold cleaners, vapor degreasers, conveyorized degreasers or film cleaning machines, or solvents that are incorporated into, or used exclusively in the manufacture or construction of, the goods or commodities at the site of the establishment.

"Nail polish" means a clear or colored coating designed for application to the fingernails or toenails and including but not limited to, lacquers, enamels, acrylics, base coats, and top coats.

"Nail polish remover" means a product designed to remove nail polish and coatings from fingernails or toenails.

"Nonaerosol product" means a consumer product that is not dispensed by a pressurized spray system.

"Noncarbon containing compound" means a compound that does not contain carbon atoms.

"Nonresilient flooring" means flooring of a mineral content that is not flexible. Nonresilient flooring includes but is not limited to terrazzo, marble, slate, granite, brick, stone, ceramic tile, and concrete.

"Nonselective terrestrial herbicide" means a terrestrial herbicide product that is toxic to plants without regard to species.

"One-product business" means a responsible ACP party that sells, supplies, offers for sale, or manufactures for use in the applicable volatile organic compound emissions control areas designated in 9VAC5-45-400:

1. Only one distinct ACP product, sold under one product brand name, which is subject to the requirements of 9VAC5-45-430; or

2. Only one distinct ACP product line subject to the requirements of 9VAC5-45-430, in which all the ACP products belong to the same product category and the VOC contents in the products are within 98.0% and 102.0% of the arithmetic mean of the VOC contents over the entire product line.

"Oven cleaner" means a cleaning product designed to clean and to remove dried food deposits from oven walls.

"Paint" means a pigmented liquid, liquefiable, or mastic composition designed for application to a substrate in a thin layer that is converted to an opaque solid film after application and is used for protection, decoration or identification, or to serve some functional purpose such as the filling or concealing of surface irregularities or the modification of light and heat radiation characteristics.

"Paint remover or stripper" means a product designed to strip or remove paints or other related coatings, by chemical action, from a substrate without markedly affecting the substrate. Paint remover or stripper does not include multipurpose solvents, paint brush cleaners, products designed and labeled exclusively as graffiti removers, and hand cleaner products that claim to remove paints and other related coatings from skin.

"Penetrant" means a lubricant designed and labeled primarily to loosen metal parts that have bonded together due to rusting, oxidation, or other causes. Penetrant does not include multipurpose lubricants that claim to have penetrating qualities but are not labeled primarily to loosen bonded parts.

"Personal fragrance product" means any product that is applied to the human body or clothing for the primary purpose of adding a scent or masking a malodor, including cologne, perfume, aftershave, and toilet water. Personal fragrance product does not include: (i) deodorant; (ii) medicated products designed primarily to alleviate fungal or bacterial growth on feet or other areas of the body; (iii) mouthwashes, breath fresheners and deodorizers; (iv) lotions, moisturizers, powders or other skin care products used primarily to alleviate skin conditions such as dryness and irritations; (v) products designed exclusively for use on human genitalia; (vi) soaps, shampoos, and products primarily used to clean the human body; and (vii) fragrance products designed to be used exclusively on nonhuman animals.

"Pesticide" means and includes a substance or mixture of substances labeled, designed, or intended for use in preventing, destroying, repelling, or mitigating a pest, or a substance or mixture of substances labeled, designed, or intended for use as a defoliant, desiccant, or plant regulator, provided that the term "pesticide" will not include a substance, mixture of substances, or device that the U.S. Environmental Protection Agency does not consider to be a pesticide.

"Pre-ACP VOC content" means the lowest VOC content of an ACP product between January 1, 1990, and the date on which the application for a proposed ACP is submitted to the board, based on the data obtained from accurate records available to the board that yields the lowest VOC content for the product.

"Pressurized gas duster" means a pressurized product labeled to remove dust from a surface solely by means of mass air or gas flow, including surfaces such as photographs, photographic film negatives, computer keyboards, and other types of surfaces that cannot be cleaned with solvents. Pressurized gas duster does not include dusting aids.

"Principal display panel" means that part of a label that is so designed as to most likely be displayed, presented, shown, or examined under normal and customary conditions of display or purchase. Whenever a principal display panel appears more than once, all requirements pertaining to the principal display panel shall pertain to all such principal display panels.

"Product brand name" means the name of the product exactly as it appears on the principal display panel of the product.

"Product category" means the applicable category that best describes the product as listed in this section and in Table 45-4A in 9VAC5-45-430 A.

"Product form," for the purpose of complying with 9VAC5-45-510 (notification, records and reporting) only, means the applicable form that most accurately describes the product's dispensing form as follows:

A = Aerosol Product.

S = Solid.

P = Pump Spray.

L = Liquid.

SS = Semisolid.

O = Other.

"Product line" means a group of products of identical form and function belonging to the same product category.

"Propellant" means a liquefied or compressed gas that is used in whole or in part, such as a cosolvent, to expel a liquid or other material from the same self-pressurized container or from a separate container.

"Pump spray" means a packaging system in which the product ingredients within the container are not under pressure and in which the product is expelled only while a pumping action is applied to a button, trigger, or other actuator.

"Reconcile" or "reconciliation" means to provide sufficient VOC emission reductions to completely offset shortfalls generated under the ACP during an applicable compliance period.

"Reconciliation of shortfalls plan" means the plan to be implemented by the responsible ACP party when shortfalls have occurred, as approved by the board pursuant to 9VAC5-45-440 B 1 g (10).

"Responsible ACP party" means the company, firm, or establishment that is listed on the ACP product's label. If the label lists two or more companies, firms, or establishments, the responsible ACP party is the party that the ACP product was "manufactured for" or "distributed by," as noted on the label.

"Responsible party" means the company, firm, or establishment that is listed on the product's label. If the label lists two companies, firms, or establishments, the responsible party is the party that the product was "manufactured for" or "distributed by," as noted on the label.

"Restricted materials" means pesticides established as restricted materials under Chapter 39 (§ 3.2-3900 et seq.) of Title 3.2 of the Code of Virginia.

"Retail outlet" means an establishment at which consumer products are sold, supplied, or offered for sale directly to consumers.

"Retailer" means a person who sells, supplies, or offers consumer products for sale directly to consumers.

"Roll-on product" means an antiperspirant or deodorant that dispenses active ingredients by rolling a wetted ball or wetted cylinder on the affected area.

"Rubber and vinyl protectant" means a product designed to protect, preserve, or renew vinyl, rubber, and plastic on vehicles, tires, luggage, furniture, and household products such as vinyl covers, clothing, and accessories. Rubber and vinyl protectant does not include products primarily designed to clean the wheel rim, such as aluminum or magnesium wheel cleaners, and tire cleaners that do not leave an appearance-enhancing or protective substance on the tire.

"Rubbing alcohol" means a product containing isopropyl alcohol (also called isopropanol) or denatured ethanol and labeled for topical use, usually to decrease germs in minor cuts and scrapes, to relieve minor muscle aches, as a rubefacient, and for massage.

"Sealant and caulking compound" means a product with adhesive properties that is designed to fill, seal, waterproof, or weatherproof gaps or joints between two surfaces. Sealant and caulking compound does not include roof cements and roof sealants; insulating foams; removable caulking compounds; clear or paintable or water resistant caulking compounds; floor seam sealers; products designed exclusively for automotive uses; or sealers that are applied as continuous coatings. Sealant and caulking compound also does not include units of product, less packaging, which weigh more than one pound and consist of more than 16 fluid ounces. For the purposes of this definition only, "removable caulking compound" means a compound that temporarily seals windows or doors for three- to six-month time intervals; and "clear or paintable or water resistant caulking compound" means a compound that contains no appreciable level of opaque fillers or pigments, transmits most or all visible light through the caulk when cured, is paintable, and is immediately resistant to precipitation upon application.

"Semisolid" means a product that, at room temperature, will not pour, but will spread or deform easily, including, but not limited to gels, pastes, and greases.

"Shaving cream" means an aerosol product that dispenses a foam lather intended to be used with a blade or cartridge razor or other wet-shaving system, in the removal of facial or other bodily hair. Shaving cream does not include shaving gel.

"Shaving gel" means an aerosol product that dispenses a post-foaming semisolid designed to be used with a blade, cartridge razor, or other shaving system in the removal of facial or other bodily hair. Shaving gel does not include shaving cream.

"Shortfall" means the ACP emissions minus the ACP limit when the ACP emissions were greater than the ACP limit during a specified compliance period, expressed to the nearest pound of VOC. Shortfall does not include emissions occurring prior to the date that the ACP agreement approving an ACP is signed by the board.

"Silicone-based multipurpose lubricant" means a lubricant that is:

1. Designed and labeled to provide lubricity primarily through the use of silicone compounds including, but not limited to, polydimethylsiloxane; and

2. Designed and labeled for general purpose lubrication, or for use in a wide variety of applications.

Silicone-based multipurpose lubricant does not include products designed and labeled exclusively to release manufactured products from molds.

"Single phase aerosol air freshener" means an aerosol air freshener with the liquid contents in a single homogeneous phase and that does not require that the product container be shaken before use.

"Small business" means any stationary source that is owned or operated by a person that employs 100 or fewer individuals; is a small business concern as defined in the federal Small Business Act; is not a major stationary source; does not emit 50 tons or more per year of any regulated pollutant; and emits less than 75 tons per year of all regulated pollutants.

"Solid" means a substance or mixture of substances that, either whole or subdivided (such as the particles composing a powder), is not capable of visually detectable flow as determined under ASTM "Standard Test Method for Determining Whether a Material is a Liquid or a Solid" (see 9VAC5-20-21).

"Special purpose spray adhesive" means an aerosol adhesive that meets any of the following definitions:

1. "Mounting adhesive" means an aerosol adhesive designed to permanently mount photographs, artwork, or other drawn or printed media to a backing (paper, board, cloth, etc.) without causing discoloration to the artwork.

2. "Flexible vinyl adhesive" means an aerosol adhesive designed to bond flexible vinyl to substrates. "Flexible vinyl" means a nonrigid polyvinyl chloride plastic with at least 5.0%, by weight, of plasticizer content. A plasticizer is a material, such as a high boiling point organic solvent, that is incorporated into a plastic to increase its flexibility, workability, or distensibility, and may be determined using ASTM "Standard Practice for Packed Column Gas Chromatography" (see 9VAC5-20-21) or from product formulation data.

3. "Polystyrene foam adhesive" means an aerosol adhesive designed to bond polystyrene foam to substrates.

4. "Automobile headliner adhesive" means an aerosol adhesive designed to bond together layers in motor vehicle headliners.

5. "Polyolefin adhesive" means an aerosol adhesive designed to bond polyolefins to substrates.

6. "Laminate repair or edgebanding adhesive" means an aerosol adhesive designed for:

a. The touch-up or repair of items laminated with high pressure laminates (e.g., lifted edges, delaminates, etc.); or

b. The touch-up, repair, or attachment of edgebonding materials, including but not limited to, other laminates, synthetic marble, veneers, wood molding, and decorative metals.

For the purposes of this definition, "high pressure laminate" means sheet materials that consist of paper, fabric, or other core material that have been laminated at temperatures exceeding 265°F and at pressures between 1,000 and 1,400 psi.

7. "Automotive engine compartment adhesive" means an aerosol adhesive designed for use in motor vehicle under-the-hood applications that require oil and plasticizer resistance, as well as high shear strength, at temperatures of 200-275°F.

"Spot remover" means a product labeled to clean localized areas or remove localized spots or stains on cloth or fabric, such as drapes, carpets, upholstery, and clothing, that does not require subsequent laundering to achieve stain removal. Spot remover does not include dry cleaning fluid, laundry prewash, or multipurpose solvent.

"Spray buff product" means a product designed to restore a worn floor finish in conjunction with a floor buffing machine and special pad.

"Stick product" means an antiperspirant or a deodorant that contains active ingredients in a solid matrix form, and that dispenses the active ingredients by frictional action on the affected area.

"Structural waterproof adhesive" means an adhesive whose bond lines are resistant to conditions of continuous immersion in fresh or salt water and that conforms with the definition in the federal consumer products regulation, 40 CFR 59 Subpart C.

"Surplus reduction" means the ACP limit minus the ACP emissions when the ACP limit was greater than the ACP emissions during a given compliance period, expressed to the nearest pound of VOC. Except as provided in 9VAC5-45-440 F 3, surplus reduction does not include emissions occurring prior to the date that the ACP agreement approving an ACP is signed by the board.

"Surplus trading" means the buying, selling, or transfer of surplus reductions between responsible ACP parties.

"Terrestrial" means to live on or grow from land.

"Tire sealant and inflator" means a pressurized product that is designed to temporarily inflate and seal a leaking tire.

"Toilet/urinal care product" means any product designed or labeled to clean or to deodorize toilet bowls, toilet tanks, or urinals. Toilet bowls, toilet tanks, or urinals includes, but is not limited to, toilets or urinals connected to permanent plumbing in buildings and other structures, portable toilets or urinals placed at temporary or remote locations, and toilet or urinals in vehicles such as buses, recreational motor homes, boats, ships, and aircraft. Toilet/urinal care product does not include bathroom and tile cleaner or general purpose cleaner.

"Total maximum historical emissions" or "TMHE" means the total VOC emissions from all ACP products for which the responsible ACP party has failed to submit the required VOC content or enforceable sales records. The TMHE shall be calculated for each ACP product during each portion of a compliance period for which the responsible ACP party has failed to provide the required VOC content or enforceable sales records. The TMHE shall be expressed to the nearest pound and calculated according to the following calculation:

http://leg5.state.va.us/images/432628552935DEQGG_files/image001.gif

http://leg5.state.va.us/images/432628552935DEQGG_files/image002.gif

where:

Highest VOC content = the maximum VOC content that the ACP product has contained in the previous five years, if the responsible ACP party has failed to meet the requirements for reporting VOC content data (for any portion of the compliance period), as specified in the ACP agreement approving the ACP, or the current actual VOC content, if the responsible ACP party has provided all required VOC Content data (for the entire compliance period), as specified in the ACP agreement.

Highest sales = the maximum one-year gross sales of the ACP product in the previous five years, if the responsible ACP party has failed to meet the requirements for reporting enforceable sales records (for any portion of the compliance period), as specified in the ACP agreement approving the ACP, or the current actual one-year enforceable sales for the product, if the responsible ACP party has provided all required enforceable sales records (for the entire compliance period), as specified in the ACP agreement approving the ACP.

Missing data days = (see definition in this section).

1, 2,..., N = each product in an ACP, up to the maximum N, for which the responsible ACP party has failed to submit the required enforceable sales or VOC content data as specified in the ACP agreement.

"Type A propellant" means a compressed gas such as CO2, N2, N2O, or compressed air that is used as a propellant and is either incorporated with the product or contained in a separate chamber within the product's packaging.

"Type B propellant" means a halocarbon that is used as a propellant including chlorofluorocarbons (CFCs), hydrochlorofluorocarbons (HCFCs), and hydrofluorocarbons (HFCs).

"Type C propellant" means a propellant that is not a Type A or Type B propellant, including propane, isobutane, n-butane, and dimethyl ether (also known as dimethyl oxide).

"Undercoating" means an aerosol product designed to impart a protective, nonpaint layer to the undercarriage, trunk interior, or firewall of motor vehicles to prevent the formation of rust or to deaden sound. Undercoating includes, but is not limited to, rubberized, mastic, or asphaltic products.

"Usage directions" means the text or graphics on the product's principal display panel, label, or accompanying literature that describes to the end user how and in what quantity the product is to be used.

"Vinyl/fabric/leather/polycarbonate coating" means a coating designed and labeled exclusively to coat vinyl, fabric, leather, or polycarbonate substrates.

"VOC content" means, except for charcoal lighter products, the total weight of VOC in a product expressed as a percentage of the product weight (exclusive of the container or packaging), as determined pursuant to 9VAC5-45-490 B and C.

For charcoal lighter material products only,

http://leg5.state.va.us/images/432628552935DEQGG_files/image003.gif

where:

Certified emissions = (see definition in this section).

Certified use rate = (see definition in this section).

"Volatile organic compound" or "VOC" means volatile organic compound as defined in 9VAC5-10-20.

"Wasp and hornet insecticide" means an insecticide product that is designed for use against wasps, hornets, yellow jackets or bees by allowing the user to spray from a distance a directed stream or burst at the intended insects or their hiding place.

"Waterproofer" means a product designed and labeled exclusively to repel water from fabric or leather substrates. Waterproofer does not include fabric protectants.

"Wax" means a material or synthetic thermoplastic substance generally of high molecular weight hydrocarbons or high molecular weight esters of fatty acids or alcohols, except glycerol and high polymers (plastics). Wax includes, but is not limited to, substances derived from the secretions of plants and animals such as carnauba wax and beeswax, substances of a mineral origin such as ozocerite and paraffin, and synthetic polymers such as polyethylene.

"Web spray adhesive" means an aerosol adhesive that is not a mist spray or special purpose spray adhesive.

"Wood cleaner" means a product labeled to clean wooden materials including but not limited to decking, fences, flooring, logs, cabinetry, and furniture. Wood cleaner does not include dusting aids, general purpose cleaners, furniture maintenance products, floor wax strippers, floor polish or waxes, or products designed and labeled exclusively to preserve or color wood.

"Wood floor wax" means wax-based products for use solely on wood floors.

"Working day" means a day between Monday through Friday, inclusive, except for federal holidays.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-430. Standard for volatile organic compounds.

A. Except as provided in 9VAC5-45-410, 9VAC5-45-440, and 9VAC5-45-450, no owner or other person shall (i) sell, supply, or offer for sale a consumer product manufactured on or after August 1, 2010, or (ii) manufacture for sale a consumer product on or after August 1, 2010, that contains volatile organic compounds in excess of the limits specified in Table 45-4A.

TABLE 45-4A

Product Category

Percent VOC by Weight

Adhesive Removers

Floor or wall covering adhesive remover

5%

Gasket or thread locking adhesive remover

50%

General purpose adhesive remover

20%

Specialty adhesive remover

70%

Adhesives

Aerosol adhesives

Mist spray adhesive:

65%

Web spray adhesive:

55%

Special purpose spray adhesives

Automotive engine compartment adhesive:

70%

Automotive headliner adhesive:

65%

Flexible vinyl adhesive:

70%

Laminate repair or edgebanding adhesive:

60%

Mounting adhesive:

70%

Polystyrene foam adhesive:

65%

Polyolefin adhesive:

60%

Contact adhesives

General purpose contact adhesive:

55%

Special purpose contact adhesive:

80%

Construction, panel, and floor covering adhesive:

15%

General purpose adhesive:

10%

Structural waterproof adhesive:

15%

Air fresheners

Single-phase aerosol:

30%

Double-phase aerosol:

25%

Liquid/Pump spray:

18%

Solid/Semisolid:

3%

Antiperspirants

Aerosol:

40% HVOC,
10% MVOC

Nonaerosol:

0% HVOC,
0% MVOC

Anti-static product, nonaerosol:

11%

Automotive brake cleaner:

45%

Automotive rubbing or polishing compound:

17%

Automotive wax, polish, sealant, or glaze

Hard paste wax:

45%

Instant detailer:

3%

All other forms:

15%

Automotive windshield washer fluid:

35%

Bathroom and tile cleaners

Aerosol:

7%

All other forms:

5%

Bug and tar remover:

40%

Carburetor or fuel-injection air intake cleaner:

45%

Carpet and upholstery cleaners

Aerosol:

7%

Nonaerosol (dilutable):

0.1%

Nonaerosol (ready-to-use):

3.0%

Charcoal lighter material:

See subsection
E of this section.

Cooking spray, aerosol:

18%

Deodorants

Aerosol:

0% HVOC,
10% MVOC

Nonaerosol:

0% HVOC,
0% MVOC

Dusting aids

Aerosol:

25%

All other forms:

7%

Electrical cleaner

45%

Electronic cleaner

75%

Engine degreasers

Aerosol:

35%

Nonaerosol:

5%

Fabric protectant:

60%

Fabric refreshers

Aerosol:

15%

Nonaerosol:

6%

Floor polishes/Waxes

Products for flexible flooring materials:

7%

Products for nonresilient flooring:

10%

Wood floor wax:

90%

Floor wax stripper, nonaerosol:

See subsection
G of this section.

Footwear or leather care products

Aerosol:

75%

Solid:

55%

All other forms:

15%

Furniture maintenance products

Aerosol:

17%

All other forms except solid or paste:

7%

General purpose cleaners

Aerosol:

10%

Nonaerosol:

4%

General purpose degreasers

Aerosol:

50%

Nonaerosol:

4%

Glass cleaners

Aerosol:

12%

Nonaerosol:

4%

Graffiti removers

Aerosol:

50%

Nonaerosol:

30%

Hair mousse:

6%

Hair shine:

55%

Hair spray:

55%

Hair styling products

Aerosol and pump spray:

6%

All other forms:

2%

Heavy-duty hand cleaner or soap:

8%

Insecticides

Crawling bug (aerosol):

15%

Crawling bug (all other forms):

20%

Flea and tick:

25%

Flying bug (aerosol):

25%

Flying bug (all other forms):

35%

Fogger:

45%

Lawn and garden (all other forms):

20%

Lawn and garden (nonaerosol):

3%

Wasp and hornet:

40%

Laundry prewash

Aerosol/Solid:

22%

All other forms:

5%

Laundry starch product:

5%

Metal polish or cleanser:

30%

Multipurpose lubricant (excluding solid or semi-solid products):

50%

Nail polish remover:

75%

Nonselective terrestrial herbicide, nonaerosol:

3%

Oven cleaners

Aerosol/Pump spray:

8%

Liquid:

5%

Paint remover or stripper:

50%

Penetrant:

50%

Rubber and vinyl protectants

Nonaerosol:

3%

Aerosol:

10%

Sealant and caulking compound:

4%

Shaving cream:

5%

Shaving gel:

7%

Silicone-based multipurpose lubricant (excluding solid or semi-solid products):

60%

Spot removers

Aerosol:

25%

Nonaerosol:

8%

Tire sealant and inflator:

20%

Toile/urinal care products

Aerosol:

10%

Nonaerosol:

3%

Undercoating, aerosol:

40%

Wood cleaners

Aerosol:

17%

Nonaerosol:

4%

B. No owner or other person shall sell, supply, offer for sale, or manufacture for sale an antiperspirant or a deodorant that contains a compound that has been defined as a toxic pollutant in 9VAC5-60-210 C.

C. Provisions follow concerning products that are diluted prior to use.

1. For consumer products for which the label, packaging, or accompanying literature specifically states that the product should be diluted with water or non-VOC solvent prior to use, the limits specified in Table 45-4A shall apply to the product only after the minimum recommended dilution has taken place. For purposes of this subsection, "minimum recommended dilution" shall not include recommendations for incidental use of a concentrated product to deal with limited special applications such as hard-to-remove soils or stains.

2. For consumer products for which the label, packaging, or accompanying literature states that the product should be diluted with a VOC solvent prior to use, the limits specified in Table 45-4A shall apply to the product only after the maximum recommended dilution has taken place.

D. For those consumer products that are registered under FIFRA, the effective date of the VOC standards in Table 45-4A shall be August 1, 2011. Prior to that date, the standards of Table 45-3A in 9VAC5-45-430 A shall apply unless the product is exempt under the provisions of 9VAC5-45-410.

E. The following requirements shall apply to all charcoal lighter material products:

1. Effective as of the applicable compliance date specified in 9VAC5-45-480, no owner or other person shall (i) sell, supply, or offer for sale a charcoal lighter material product manufactured on or after August 1, 2010, or (ii) manufacture for sale a charcoal lighter material product on or after August 1, 2010, unless at the time of the transaction:

a. The manufacturer can demonstrate to the board's satisfaction that it has been issued a currently effective certification by CARB under the Consumer Products provisions under Subchapter 8.5, Article 2, § 94509(h), of Title 17 of the California Code of Regulations (see 9VAC5-20-21). This certification remains in effect for as long as the CARB certification remains in effect. A manufacturer claiming such a certification on this basis must submit to the board a copy of the certification decision (i.e., the executive order), including all conditions established by CARB applicable to the certification.

b. The manufacturer or distributor of the charcoal lighter material has been issued a currently effective certification pursuant to subdivision 2 of this subsection.

c. The charcoal lighter material meets the formulation criteria and other conditions specified in the applicable ACP agreement issued pursuant to subdivision 2 of this subsection.

d. The product usage directions for the charcoal lighter material are the same as those provided to the board pursuant to subdivision 2 c of this subsection.

2. Provisions follow concerning certification requirements.

a. No charcoal lighter material formulation shall be certified under this subdivision unless the applicant for certification demonstrates to the board's satisfaction that the VOC emissions from the ignition of charcoal with the charcoal lighter material are less than or equal to 0.020 pound of VOC per start, using the procedures specified in the South Coast Air Quality Management District Rule 1174 Ignition Method Compliance Certification Protocol (see 9VAC5-20-21). The provisions relating to LVP-VOC in 9VAC5-45-410 F and 9VAC5-45-420 C shall not apply to a charcoal lighter material subject to the requirements of 9VAC5-45-430 A and this subsection.

b. The board may approve alternative test procedures that are shown to provide equivalent results to those obtained using the South Coast Air Quality Management District Rule 1174 Ignition Method Compliance Certification Protocol (see 9VAC5-20-21).

c. A manufacturer or distributor of charcoal lighter material may apply to the board for certification of a charcoal lighter material formulation in accordance with this subdivision. The application shall be in writing and shall include, at a minimum, the following:

(1) The results of testing conducted pursuant to the procedures specified in South Coast Air Quality Management District Rule 1174 Testing Protocol (see 9VAC5-20-21); and

(2) The exact text or graphics that will appear on the charcoal lighter material's principal display panel, label, or accompanying literature. The provided material shall clearly show the usage directions for the product. These directions shall accurately reflect the quantity of charcoal lighter material per pound of charcoal that was used in the South Coast Air Quality Management District Rule 1174 Testing Protocol (see 9VAC5-20-21) for that product, unless:

(a) The charcoal lighter material is intended to be used in fixed amounts independent of the amount of charcoal used, such as certain paraffin cubes, or

(b) The charcoal lighter material is already incorporated into the charcoal, such as certain "bag light," "instant light" or "match light" products.

(3) For a charcoal lighter material that meets the criteria specified in subdivision 2 c (2) (a) of this subsection, the usage instructions provided to the board will accurately reflect the quantity of charcoal lighter material used in the South Coast Air Quality Management District Rule 1174 Testing Protocol (see 9VAC5-20-21) for that product.

(4) Physical property data, formulation data, or other information required by the board for use in determining when a product modification has occurred and for use in determining compliance with the conditions specified on the ACP agreement issued pursuant to subdivision 2 e of this subsection.

d. Within 30 days of receipt of an application, the board will advise the applicant in writing either that it is complete or that specified additional information is required to make it complete. Within 30 days of receipt of additional information, the board will advise the applicant in writing either that the application is complete, or that specified additional information or testing is still required before it can be deemed complete.

e. If the board finds that an application meets the requirements of subdivision 2 of this subsection, then an ACP agreement shall be issued certifying the charcoal lighter material formulation and specifying such conditions as are necessary to insure that the requirements of this subsection are met. The board will act on a complete application within 90 days after the application is deemed complete.

3. For charcoal lighter material for which certification has been granted pursuant to subdivision 2 of this subsection, the applicant for certification shall notify the board in writing within 30 days of: (i) a change in the usage directions, or (ii) a change in product formulation, test results, or other information submitted pursuant to subdivision 2 of this subsection that may result in VOC emissions greater than 0.020 pound of VOC per start.

4. If the board determines that a certified charcoal lighter material formulation results in VOC emissions from the ignition of charcoal that are greater than 0.020 pound of VOC per start, as determined by the South Coast Air Quality Management District Rule 1174 Testing Protocol (see 9VAC5-20-21) and the statistical analysis procedures contained therein, the board will revoke or modify the certification as is necessary to assure that the charcoal lighter material will result in VOC emissions of less than or equal to 0.020 pound of VOC per start.

F. Provisions follow concerning aerosol adhesives.

1. The standards for aerosol adhesives apply to all uses of aerosol adhesives, including consumer, industrial, and commercial uses. Except as otherwise provided in 9VAC5-45-410 and 9VAC5-45-450, no owner or other person shall (i) sell, supply, offer for sale, or use an aerosol adhesive manufactured on or after August 1, 2010, or (ii) manufacture for sale an aerosol adhesive on or after August 1, 2010, that contains VOCs in excess of the specified standard.

2. a. In order to qualify as a "special purpose spray adhesive," the product must meet one or more of the definitions for special purpose spray adhesive specified in 9VAC5-45-420 C, but if the product label indicates that the product is suitable for use on a substrate or application not listed in 9VAC5-45-420 C, then the product shall be classified as either a "web spray adhesive" or a "mist spray adhesive."

b. If a product meets more than one of the definitions specified in 9VAC5-45-420 C for "special purpose spray adhesive," and is not classified as a "web spray adhesive" or "mist spray adhesive" under subdivision 2 a of this subsection, then the VOC limit for the product shall be the lowest applicable VOC limit specified in 9VAC5-45-430 A.

3. No person shall (i) sell, supply, or offer for sale an aerosol adhesive manufactured on or after August 1, 2010, or (ii) manufacture for sale on or after August 1, 2010, an aerosol adhesive, that contains any of the following compounds: methylene chloride, perchloroethylene, or trichloroethylene.

4. All aerosol adhesives must comply with the labeling requirements specified in 9VAC5-45-460 D.

G. Effective as of the applicable compliance date specified in 9VAC5-45-480, no owner or other person shall sell, supply, offer for sale, or manufacture for use a floor wax stripper unless the following requirements are met:

1. The label of each nonaerosol floor wax stripper must specify a dilution ratio for light or medium build-up of polish that results in an as-used VOC concentration of 3.0% by weight or less.

2. If a nonaerosol floor wax stripper is also intended to be used for removal of heavy build-up of polish, the label of that floor wax stripper must specify a dilution ratio for heavy build-up of polish that results in an as-used VOC concentration of 12% by weight or less.

3. The terms "light build-up," "medium build-up," or "heavy build-up" are not specifically required as long as comparable terminology is used.

H. For a consumer product for which standards are specified under subsection A of this section, no owner or other person shall sell, supply, offer for sale, or manufacture for sale a consumer product that contains any of the following ozone-depleting compounds:

CFC-11 (trichlorofluoromethane), CFC-12 (dichlorodifluoromethane);

CFC-113 (1,1,1-trichloro-2,2,2-trifluoroethane);

CFC-114 (1-chloro-1,1-difluoro-2-chloro-2,2-difluoroethane);

CFC-115 (chloropentafluoroethane), halon 1211 (bromochlorodifluoromethane);

halon 1301 (bromotrifluoromethane), halon 2402 (dibromotetrafluoroethane);

HCFC-22 (chlorodifluoromethane), HCFC-123 (2,2-dichloro-1,1,1-trifluoroethane);

HCFC-124 (2-chloro-1,1,1,2-tetrafluoroethane);

HCFC-141b (1,1-dichloro-1-fluoroethane), HCFC-142b (1-chloro-1,1-difluoroethane);

1,1,1-trichloroethane; or

carbon tetrachloride.

I. The requirements of subsection H of this section shall not apply to an existing product formulation that complies with Table 45-4A or an existing product formulation that is reformulated to meet Table 45-4A, provided the ozone-depleting compound content of the reformulated product does not increase.

J. The requirements of subsection H of this section shall not apply to ozone-depleting compounds that may be present as impurities in a consumer product in an amount equal to or less than 0.01% by weight of the product.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-440. Alternative control plan (ACP) for consumer products.

A. 1. Manufacturers of consumer products may seek an ACP agreement in accordance with subsections B through L of this section.

2. Only responsible ACP parties for consumer products may enter into an ACP agreement under the provisions of this section.

B. Provisions follow concerning the requirements and process for approval of an ACP.

1. To be considered by the board for approval, an application for a proposed ACP shall be submitted in writing to the board by the responsible ACP party and shall contain all of the following:

a. An identification of the contact persons, phone numbers, names, and addresses of the responsible ACP party that is submitting the ACP application and will be implementing the ACP requirements specified in the ACP agreement.

b. A statement of whether the responsible ACP party is a small business or a one-product business.

c. A listing of the exact product brand name, form, available variations (flavors, scents, colors, sizes, etc.), and applicable product category for each distinct ACP product that is proposed for inclusion in the ACP.

d. For each proposed ACP product identified in subdivision 1 c of this subsection, a demonstration to the satisfaction of the board that the enforceable sales records to be used by the responsible ACP party for tracking product sales meet the minimum criteria specified in subdivision 1 d (5) of this subsection. To provide this demonstration, the responsible ACP party shall either demonstrate to the satisfaction of the board that other records provided to the board in writing by the responsible ACP party meet the minimum criteria of subdivision 1 d (5) of this subsection for tracking product sales of each ACP product, or do all of the following:

(1) Provide the contact persons, phone numbers, names, street and mail addresses of all persons and businesses who will provide information that will be used to determine the enforceable sales;

(2) Determine the enforceable sales of each product using enforceable sales records;

(3) Demonstrate, to the satisfaction of the board, the validity of the enforceable sales based on enforceable sales records provided by the contact persons or the responsible ACP party;

(4) Calculate the percentage of the gross sales that is composed of enforceable sales; and

(5) Determine which ACP products have enforceable sales that are 75% or more of the gross sales. Only ACP products meeting this criteria shall be allowed to be sold under an ACP.

e. For each of the ACP products identified in subdivision 1 d (5) of this subsection, the inclusion of the following:

(1) Legible copies of the existing labels for each product; and

(2) The VOC content and LVP content for each product. The VOC content and LVP content shall be reported for two different periods as follows:

(a) The VOC and LVP contents of the product at the time the application for an ACP is submitted, and

(b) The VOC and LVP contents of the product that were used at any time within the four years prior to the date of submittal of the application for an ACP if either the VOC or LVP contents have varied by more than plus or minus 10% of the VOC or LVP contents reported in subdivision 1 e (2) (a) of this subsection.

f. A written commitment obligating the responsible ACP party to date-code every unit of each ACP product approved for inclusion in the ACP. The commitment shall require the responsible ACP party to display the date-code on each ACP product container or package no later than five working days after the date an ACP agreement approving an ACP is signed by the board.

g. An operational plan covering all the products identified under subdivision 1 d (5) of this subsection for each compliance period that the ACP will be in effect. The operational plan shall contain all of the following:

(1) An identification of the compliance periods and dates for the responsible ACP party to report the information required by the board in the ACP agreement approving an ACP. The length of the compliance period shall be chosen by the responsible ACP party (not to exceed 365 days). The responsible ACP party shall also choose the dates for reporting information such that all required VOC content and enforceable sales data for all ACP products shall be reported to the board at the same time and at the same frequency.

(2) An identification of specific enforceable sales records to be provided to the board for enforcing the provisions of this article and the ACP agreement approving an ACP. The enforceable sales records shall be provided to the board no later than the compliance period dates specified in subdivision 1 g (1) of this subsection.

(3) For a small business or a one-product business that will be relying to some extent on surplus trading to meet its ACP limits, a written commitment from the responsible ACP party that they will transfer the surplus reductions to the small business or one-product business upon approval of the ACP.

(4) For each ACP product, all VOC content levels that will be applicable for the ACP product during each compliance period. The plan shall also identify the specific method by which the VOC content will be determined and the statistical accuracy and precision (repeatability and reproducibility) will be calculated for each specified method.

(5) The projected enforceable sales for each ACP product at each different VOC content for every compliance period that the ACP will be in effect.

(6) A detailed demonstration showing the combination of specific ACP reformulations or surplus trading (if applicable) that is sufficient to ensure that the ACP emissions will not exceed the ACP limit for each compliance period that the ACP will be in effect, the approximate date within each compliance period that such reformulations or surplus trading are expected to occur, and the extent to which the VOC contents of the ACP products will be reduced (i.e., by ACP reformulation). This demonstration shall use the equations specified in 9VAC5-45-420 C for projecting the ACP emissions and ACP limits during each compliance period. This demonstration shall also include all VOC content levels and projected enforceable sales for all ACP products to be sold during each compliance period.

(7) A certification that all reductions in the VOC content of a product will be real, actual reductions that do not result from changing product names, mischaracterizing ACP product reformulations that have occurred in the past, or other attempts to circumvent the provisions of this article.

(8) Written explanations of the date-codes that will be displayed on each ACP product's container or packaging.

(9) A statement of the approximate dates by which the responsible ACP party plans to meet the applicable ACP VOC standards for each product in the ACP.

(10) An operational plan ("reconciliation of shortfalls plan") that commits the responsible ACP party to completely reconcile shortfalls, even, to the extent permitted by law, if the responsible ACP party files for bankruptcy protection. The plan for reconciliation of shortfalls shall contain all of the following:

(a) A clear and convincing demonstration of how shortfalls of up to 5.0%, 10%, 15%, 25%, 50%, 75% and 100% of the applicable ACP limit will be completely reconciled within 90 working days from the date the shortfall is determined;

(b) A listing of the specific records and other information that will be necessary to verify that the shortfalls were reconciled as specified in this subsection; and

(c) A commitment to provide a record or information requested by the board to verify that the shortfalls have been completely reconciled.

h. A declaration, signed by a legal representative for the responsible ACP party, that states that all information and operational plans submitted with the ACP application are true and correct.

2. a. In accordance with the time periods specified in subsection C of this section, the board will issue an ACP agreement approving an ACP that meets the requirements of this article. The board will specify such terms and conditions as are necessary to ensure that the emissions from the ACP products do not exceed the emissions that would have occurred if the ACP products subject to the ACP had met the VOC standards specified in 9VAC5-45-430 A. The ACP shall also include:

(1) Only those ACP products for which the enforceable sales are at least 75% of the gross sales as determined in subdivision 1 d (5) of this subsection;

(2) A reconciliation of shortfalls plan meeting the requirements of this article; and

(3) Operational terms, conditions, and data to be reported to the board to ensure that all requirements of this article are met.

b. The board will not approve an ACP submitted by a responsible ACP party if the board determines, upon review of the responsible ACP party's compliance history with past or current ACPs or the requirements for consumer products in this article, that the responsible ACP party has a recurring pattern of violations and has consistently refused to take the necessary steps to correct those violations.

C. Provisions follow concerning ACP approval time frames.

1. The board will take appropriate action on an ACP within the following time periods:

a. Within 30 working days of receipt of an ACP application, the board will inform the applicant in writing that either:

(1) The application is complete and accepted for filing, or

(2) The application is deficient, and identify the specific information required to make the application complete.

b. Within 30 working days of receipt of additional information provided in response to a determination that an ACP application is deficient, the board will inform the applicant in writing that either:

(1) The additional information is sufficient to make the application complete, and the application is accepted for filing, or

(2) The application is deficient, and identify the specific information required to make the application complete.

c. If the board finds that an application meets the requirements of subsection B of this section, then it shall issue an ACP agreement in accordance with the requirements of this article. The board will normally act to approve or disapprove a complete application within 90 working days after the application is deemed complete. The board may extend this time period if additional information is needed.

2. Before the end of each time period specified in this section, the board and the responsible ACP party may mutually agree to a longer time period for the board to take the appropriate action.

D. Provisions follow concerning recordkeeping and availability of requested information.

1. All information specified in the ACP agreement approving an ACP shall be maintained by the responsible ACP party for a minimum of three years after such records are generated. Such records shall be clearly legible and maintained in good condition during this period.

2. The records specified in subdivision 1 of this subsection shall be made available to the board or its authorized representative:

a. Immediately upon request, during an on-site visit to a responsible ACP party,

b. Within five working days after receipt of a written request from the board, or

c. Within a time period mutually agreed upon by both the board and the responsible ACP party.

E. Provisions follow concerning violations.

1. Failure to meet a requirement of this article or a condition of an applicable ACP agreement shall constitute a single, separate violation of this article for each day until such requirement or condition is satisfied, except as otherwise provided in subdivisions 2 through 8 of this subsection.

2. False reporting of information in an ACP application or in any supporting documentation or amendments thereto shall constitute a single, separate violation of the requirements of this article for each day that the approved ACP is in effect.

3. An exceedance during the applicable compliance period of the VOC content specified for an ACP product in the ACP agreement approving an ACP shall constitute a single, separate violation of the requirements of this article for each ACP product that exceeds the specified VOC content that is sold, supplied, offered for sale, or manufactured for use.

4. Any of the following actions shall each constitute a single, separate violation of the requirements of this article for each day after the applicable deadline until the requirement is satisfied:

a. Failure to report data or failure to report data accurately in writing to the board regarding the VOC content, LVP content, enforceable sales, or other information required by the deadline specified in the applicable ACP agreement;

b. False reporting of information submitted to the board for determining compliance with the ACP requirements;

c. Failure to completely implement the reconciliation of shortfalls plan that is set forth in the ACP agreement within 30 working days from the date of written notification of a shortfall by the board; or

d. Failure to completely reconcile the shortfall as specified in the ACP agreement within 90 working days from the date of written notification of a shortfall by the board.

5. False reporting or failure to report any of the information specified in subdivision F 2 i of this section or the sale or transfer of invalid surplus reductions shall constitute a single, separate violation of the requirements of this article for each day during the time period for which the surplus reductions are claimed to be valid.

6. Except as provided in subdivision 7 of this subsection, an exceedance of the ACP limit for a compliance period that the ACP is in effect shall constitute a single, separate violation of the requirements of this article for each day of the applicable compliance period. The board will determine whether an exceedance of the ACP limit has occurred as follows:

a. If the responsible ACP party has provided all required information for the applicable compliance period specified in the ACP agreement approving an ACP, then the board will determine whether an exceedance has occurred using the enforceable sales records and VOC content for each ACP product as reported by the responsible ACP party for the applicable compliance period.

b. If the responsible ACP party has failed to provide all the required information specified in the ACP agreement for an applicable compliance period, the board will determine whether an exceedance of the ACP limit has occurred as follows:

(1) For the missing data days, the board will calculate the total maximum historical emissions as specified in 9VAC5-45-420 C.

(2) For the remaining portion of the compliance period that are not missing data days, the board will calculate the emissions for each ACP product using the enforceable sales records and VOC content that were reported for that portion of the applicable compliance period.

(3) The ACP emissions for the entire compliance period shall be the sum of the total maximum historical emissions determined pursuant to subdivision 6 b (1) of this subsection, and the emissions determined pursuant to subdivision 6 b (2) of this subsection.

(4) The board will calculate the ACP limit for the entire compliance period using the ACP standards applicable to each ACP product and the enforceable sales records specified in subdivision 6 b (2) of this subsection. The enforceable sales for each ACP product during missing data days, as specified in subdivision 6 b (1) of this subsection, shall be zero.

(5) An exceedance of the ACP limit has occurred when the ACP emissions, determined pursuant to subdivision 6 b (3) of this subsection, exceeds the ACP limit, determined pursuant to subdivision 6 b (4) of this subsection.

7. If a violation specified in subdivision 6 of this subsection occurs, the responsible ACP party may, pursuant to this subdivision, establish the number of violations as calculated according to the following equation:

http://leg5.state.va.us/images/432634564273DEQGG_files/image001.gif

where:

NEV = number of ACP limit violations.

ACP emissions = the ACP emissions for the compliance period.

ACP limit = the ACP limit for the compliance period.

40 pounds = number of pounds of emissions equivalent to one violation.

The responsible ACP party may determine the number of ACP limit violations pursuant to this subdivision only if it has provided all required information for the applicable compliance period, as specified in the ACP agreement approving the ACP. By choosing this option, the responsible ACP party waives all legal objections to the calculation of the ACP limit violations pursuant to this subdivision.

8. A cause of action against a responsible ACP party under this section shall be deemed to accrue on the date when the records establishing a violation are received by the board.

9. The responsible ACP party is fully liable for compliance with the requirements of this article, even if the responsible ACP party contracts with or otherwise relies on another person to carry out some or all of the requirements of this article.

F. Provisions follow concerning surplus reductions and surplus trading.

1. The board will issue surplus reduction certificates that establish and quantify, to the nearest pound of VOC reduced, the surplus reductions achieved by a responsible ACP party operating under an ACP. The surplus reductions can be bought from, sold to, or transferred to a responsible ACP party operating under an ACP, as provided in subdivision 2 of this subsection. All surplus reductions shall be calculated by the board at the end of each compliance period within the time specified in the approved ACP. Surplus reduction certificates shall not constitute instruments, securities, or another form of property.

2. The issuance, use, and trading of all surplus reductions shall be subject to the following provisions:

a. For the purposes of this article, VOC reductions from sources of VOCs other than consumer products subject to the VOC standards specified in 9VAC5-45-430 A may not be used to generate surplus reductions.

b. Surplus reductions are valid only when generated by a responsible ACP party and only while that responsible ACP party is operating under an approved ACP.

c. Surplus reductions are valid only after the board has issued an ACP agreement pursuant to subdivision 1 of this subsection.

d. Surplus reductions issued by the board may be used by the responsible ACP party who generated the surplus until the reductions expire, are traded, or until the ACP is canceled pursuant to subdivision J 2 of this section.

e. Surplus reductions cannot be applied retroactively to a compliance period prior to the compliance period in which the reductions were generated.

f. Except as provided in subdivision 2 g (2) of this subsection, only small or one-product businesses selling products under an approved ACP may purchase surplus reductions. An increase in the size of a small business or one-product business shall have no effect on surplus reductions purchased by that business prior to the date of the increase.

g. While valid, surplus reductions can be used only for the following purposes:

(1) To adjust the ACP emissions of either the responsible ACP party who generated the reductions or the responsible ACP party to which the reductions were traded, provided the surplus reductions are not to be used by a responsible ACP party to further lower its ACP emissions when its ACP emissions are equal to or less than the ACP limit during the applicable compliance period; or

(2) To be traded for the purpose of reconciling another responsible ACP party's shortfalls, provided such reconciliation is part of the reconciliation of shortfalls plan approved by the board pursuant to subdivision B 1 g (10) of this section.

h. A valid surplus reduction shall be in effect starting five days after the date of issuance by the board for a continuous period equal to the number of days in the compliance period during which the surplus reduction was generated. The surplus reduction shall then expire at the end of its effective period.

i. At least five working days prior to the effective date of transfer of surplus reductions, both the responsible ACP party that is selling surplus reductions and the responsible ACP party that is buying the surplus reductions shall, either together or separately, notify the board in writing of the transfer. The notification shall include all of the following:

(1) The date the transfer is to become effective.

(2) The date the surplus reductions being traded are due to expire.

(3) The amount (in pounds of VOCs) of surplus reductions that is being transferred.

(4) The total purchase price paid by the buyer for the surplus reductions.

(5) The contact persons, names of the companies, street and mail addresses, and phone numbers of the responsible ACP parties involved in the trading of the surplus reductions.

(6) A copy of the board-issued surplus reductions certificate, signed by both the seller and buyer of the certificate, showing transfer of all or a specified portion of the surplus reductions. The copy shall show the amount of any remaining nontraded surplus reductions, if applicable, and shall show their expiration date. The copy shall indicate that both the buyer and seller of the surplus reductions fully understand the conditions and limitations placed upon the transfer of the surplus reductions and accept full responsibility for the appropriate use of such surplus reductions as provided in this section.

j. Surplus reduction credits shall only be traded between ACP products.

3. Provisions follow concerning limited-use surplus reduction credits for early reformulations of ACP products.

a. For the purposes of this subdivision, "early reformulation" means an ACP product that is reformulated to result in a reduction in the product's VOC content, and that is sold, supplied, or offered for sale for the first time during the one-year (365 day) period immediately prior to the date on which the application for a proposed ACP is submitted to the board. Early reformulation does not include reformulated ACP products that are sold, supplied, or offered for sale more than one year prior to the date on which the ACP application is submitted to the board.

b. If requested in the application for a proposed ACP, the board will, upon approval of the ACP, issue surplus reduction credits for early reformulation of ACP products, provided that all of the following documentation has been provided by the responsible ACP party to the satisfaction of the board:

(1) Accurate documentation showing that the early reformulation reduced the VOC content of the ACP product to a level that is below the pre-ACP VOC content of the product or below the applicable VOC standard specified in 9VAC 5-45-430 A, whichever is the lesser of the two;

(2) Accurate documentation demonstrating that the early reformulated ACP product was sold in retail outlets within the time period specified in subdivision 3 a of this subsection;

(3) Accurate sales records for the early reformulated ACP product that meet the definition of enforceable sales records and that demonstrate that the enforceable sales for the ACP product are at least 75% of the gross sales for the product, as specified in subdivision B 1 d of this section; and

(4) Accurate documentation for the early reformulated ACP product that meets the requirements specified in subdivisions B 1 c and d and B 1 g (7) and (8) of this section and that identifies the specific test methods for verifying the claimed early reformulation and the statistical accuracy and precision of the test methods as specified in subdivision B 1 g (4) of this section.

c. Surplus reduction credits issued pursuant to this subsection shall be calculated separately for each early reformulated ACP product by the board according to the following equation:

http://leg5.state.va.us/images/432634564273DEQGG_files/image002.gif

where:

SR = surplus reductions for the ACP product, expressed to the nearest pound.

Enforceable sales = the enforceable sales for the early reformulated ACP product, expressed to the nearest pound of ACP product.

VOC contentinitial = the pre-ACP VOC content of the ACP product, or the applicable VOC standard specified in 9VAC5-45-430 A, whichever is the lesser of the two, expressed to the nearest 0.1 pounds of VOC per 100 pounds of ACP product.

VOC contentfinal = the VOC content of the early reformulated ACP product after the early reformulation is achieved, expressed to the nearest 0.1 pounds of VOC per 100 pounds of ACP product.

d. The use of limited use surplus reduction credits issued pursuant to this subdivision shall be subject to all of the following provisions:

(1) Limited use surplus reduction credits shall be used solely to reconcile the responsible ACP party's shortfalls, if any, generated during the first compliance period occurring immediately after the issuance of the ACP agreement approving an ACP, and may not be used for another purpose;

(2) Limited use surplus reduction credits may not be transferred to, or used by, another responsible ACP party; and

(3) Except as provided in this subdivision, limited use surplus reduction credits shall be subject to all requirements applicable to surplus reductions and surplus trading as specified in subdivisions 1 and 2 of this subsection.

G. Provisions follow concerning the reconciliation of shortfalls.

1. At the end of each compliance period, the responsible ACP party shall make an initial calculation of shortfalls occurring in that compliance period as specified in the ACP agreement approving the ACP. Upon receipt of this information, the board will determine the amount of a shortfall that has occurred during the compliance period and shall notify the responsible ACP party of this determination.

2. The responsible ACP party shall implement the reconciliation of shortfalls plan as specified in the ACP agreement approving the ACP within 30 working days from the date of written notification of a shortfall by the board.

3. All shortfalls shall be completely reconciled within 90 working days from the date of written notification of a shortfall by the board by implementing the reconciliation of shortfalls plan specified in the ACP agreement approving the ACP.

4. All requirements specified in the ACP agreement approving an ACP, including all applicable ACP limits, shall remain in effect while shortfalls are in the process of being reconciled.

H. Provisions follow concerning the notification of modifications to an ACP by the responsible ACP party.

1. Board pre-approval is not required for modifications that are a change to an ACP product's: (i) product name, (ii) product formulation, (iii) product form, (iv) product function, (v) applicable product category, (vi) VOC content, (vii) LVP content, (viii) date-codes, or (ix) recommended product usage directions. The responsible ACP party shall notify the board of such changes, in writing, no later than 15 working days from the date such a change occurs. For each modification, the notification shall fully explain the following:

a. The nature of the modification;

b. The extent to which the ACP product formulation, VOC content, LVP content, or recommended usage directions will be changed;

c. The extent to which the ACP emissions and ACP limit specified in the ACP agreement will be changed for the applicable compliance period; and

d. The effective date and corresponding date-codes for the modification.

2. The responsible ACP party may propose modifications to the enforceable sales records or the reconciliation of shortfalls plan specified in the ACP agreement approving the ACP, however, such modifications require board pre-approval. Any such proposed modifications shall be fully described in writing and forwarded to the board. The responsible ACP party shall clearly demonstrate that the proposed modifications will meet the requirements of this article. The board will act on the proposed modifications using the procedure set forth in subsection C of this section. The responsible ACP party shall meet all applicable requirements of the existing ACP until such time as a proposed modification is approved in writing by the board.

3. Except as otherwise provided in subdivisions 1 and 2 of this subsection, the responsible ACP party shall notify the board, in writing, of information known by the responsible ACP party that may alter the information submitted pursuant to the requirements of subsection B of this section. The responsible ACP party shall provide such notification to the board no later than 15 working days from the date such information is known to the responsible ACP party.

I. Provisions follow concerning the modification of an ACP by the board.

1. If the board determines that: (i) the enforceable sales for an ACP product are no longer at least 75% of the gross sales for that product, (ii) the information submitted pursuant to the approval process set forth in subsection C of this section is no longer valid, or (iii) the ACP emissions are exceeding the ACP limit specified in the ACP agreement approving an ACP, then the board will modify the ACP as necessary to ensure that the ACP meets all requirements of this article and that the ACP emissions will not exceed the ACP limit.

2. If any applicable VOC standards specified in 9VAC5-45-430 A are modified by the board in a future rulemaking, the board will modify the ACP limit specified in the ACP agreement approving an ACP to reflect the modified ACP VOC standards as of their effective dates.

J. Provisions follow concerning the cancellation of an ACP.

1. An ACP shall remain in effect until:

a. The ACP reaches the expiration date specified in the ACP agreement;

b. The ACP is modified by the responsible ACP party and approved by the board as provided in subsection H of this section;

c. The ACP is modified by the board as provided in subsection I of this section;

d. The ACP includes a product for which the VOC standard specified in 9VAC5-45-430 A is modified by the board in a future rule-making, and the responsible ACP party informs the board in writing that the ACP will terminate on the effective date of the modified standard; or

e. The ACP is cancelled pursuant to subdivision 2 of this subsection.

2. The board will cancel an ACP if any of the following circumstances occur:

a. The responsible ACP party demonstrates to the satisfaction of the board that the continuation of the ACP will result in an extraordinary economic hardship.

b. The responsible ACP party violates the requirements of the approved ACP, and the violation results in a shortfall that is 20% or more of the applicable ACP limit (i.e., the ACP emissions exceed the ACP limit by 20% or more).

c. The responsible ACP party fails to meet the requirements of subsection G of this section within the time periods specified in that subsection.

d. The responsible ACP party has demonstrated a recurring pattern of violations and has consistently failed to take the necessary steps to correct those violations.

3. Cancellations of ACPs are considered case decisions and will be processed using the procedures prescribed in 9VAC5-170-40 A 2 and applicable provisions of Article 3 (§ 2.2-4018 et seq.) of the Administrative Process Act.

4. The responsible ACP party for an ACP that is canceled pursuant to this section and who does not have a valid ACP to immediately replace the canceled ACP shall meet all of the following requirements:

a. All remaining shortfalls in effect at the time of ACP cancellation shall be reconciled in accordance with the requirements of subsection G of this section, and

b. All ACP products subject to the ACP shall be in compliance with the applicable VOC standards in 9VAC5-45-430 A immediately upon the effective date of ACP cancellation.

5. Violations incurred pursuant to subsection E of this section shall not be cancelled or affected by the subsequent cancellation or modification of an ACP pursuant to subsection H, I, or J of this section.

K. The information required by subdivisions B 1 a and b and F 2 i of this section is public information that may not be claimed as confidential. Other information submitted to the board to meet the requirements of this section shall be available to the public except where the owner makes a showing satisfactory to the board under 9VAC5-170-60 B that the information meets the criteria in 9VAC5-170-60 C, in which case the information shall be handled in accordance with the procedures specified in §§ 10.1-1314 and 10.1-1314.1 of the Air Pollution Control Law of Virginia.

L. A responsible ACP party may transfer an ACP to another responsible ACP party, provided that all of the following conditions are met:

1. The board will be notified, in writing, by both responsible ACP parties participating in the transfer of the ACP and its associated ACP agreement. The written notifications shall be postmarked at least five working days prior to the effective date of the transfer and shall be signed and submitted separately by both responsible parties. The written notifications shall clearly identify the contact persons, business names, mail and street addresses, and phone numbers of the responsible parties involved in the transfer.

2. The responsible ACP party to which the ACP is being transferred shall provide a written declaration stating that the transferee shall fully comply with all requirements of the ACP agreement approving the ACP and this article.

M. In approving agreements under subsections B through L of this section, the board will take into consideration whether the applicant has been granted an ACP by CARB. A manufacturer of consumer products that has been granted an ACP agreement by the CARB under the provisions in Subchapter 8.5, Article 4, Sections 94540-94555, of Title 17 of the California Code of Regulations (see 9VAC5-20-21) may be exempt from Table 45-4A for the period of time that the CARB ACP agreement remains in effect provided that all ACP products used for emission credits within the CARB ACP agreement are contained in Table 45-4A. A manufacturer claiming such an ACP agreement on this basis must submit to the board a copy of the CARB ACP decision (i.e., the executive order), including all conditions established by CARB applicable to the exemption and certification that the manufacturer will comply with the CARB ACP decision for those ACP products in the areas specified in 9VAC5-45-400 B.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-450. Innovative products.

A. Manufacturers of consumer products may seek an innovative products exemption in accordance with the following criteria:

1. The board will exempt a consumer product from the VOC limits specified in 9VAC5-45-430 A if a manufacturer demonstrates by clear and convincing evidence that, due to some characteristic of the product formulation, design, delivery systems or other factors, the use of the product will result in less VOC emissions as compared to:

a. The VOC emissions from a representative consumer product that complies with the VOC limits specified in 9VAC5-45-430 A, or

b. The calculated VOC emissions from a noncomplying representative product, if the product had been reformulated to comply with the VOC limits specified in 9VAC5-45-430 A. VOC emissions shall be calculated using the following equation:

where:

ER = The VOC emissions from the noncomplying representative product, had it been reformulated.

ENC = The VOC emissions from the noncomplying representative product in its current formulation.

VOCSTD = the VOC limit specified in Table 45-4A.

VOCNC = the VOC content of the noncomplying product in its current formulation.

If a manufacturer demonstrates that this equation yields inaccurate results due to some characteristic of the product formulation or other factors, an alternative method that accurately calculates emissions may be used upon approval of the board.

2. For the purposes of this subsection, "representative consumer product" means a consumer product that meets all of the following criteria:

a. The representative product shall be subject to the same VOC limit in 9VAC5-45-430 A as the innovative product;

b. The representative product shall be of the same product form as the innovative product unless the innovative product uses a new form that does not exist in the product category at the time the application is made; and

c. The representative product shall have at least a similar efficacy as other consumer products in the same product category based on tests generally accepted for that product category by the consumer products industry.

3. A manufacturer shall apply in writing to the board for an exemption claimed under subdivision A 1 of this section. The application shall include the supporting documentation that demonstrates the emissions from the innovative product, including the actual physical test methods used to generate the data and, if necessary, the consumer testing undertaken to document product usage. In addition, the applicant must provide the information necessary to enable the board to establish enforceable conditions for granting the exemption, including the VOC content for the innovative product and test methods for determining the VOC content. Information submitted to the board pursuant to this section shall be available to the public except where the owner makes a showing satisfactory to the board under 9VAC5-170-60 B that the information meets the criteria in 9VAC5-170-60 C, in which case the information shall be handled in accordance with the procedures specified in §§ 10.1-1314 and 10.1-1314.1 of the Air Pollution Control Law of Virginia.

4. Within 30 days of receipt of the exemption application, the board will determine whether an application is complete.

5. Within 90 days after an application has been deemed complete, the board will determine whether, under what conditions, and to what extent an exemption from the requirements of 9VAC5-45-430 A will be permitted. The board may extend this time period if additional time is needed to reach a decision, and additional supporting documentation may be submitted by the applicant before a decision has been reached. The board will notify the applicant of the decision in writing and specify such terms and conditions as are necessary to insure that emissions from the product will meet the emissions reductions specified in subdivision 1 of this subsection, and that such emissions reductions can be enforced.

6. In granting an exemption for a product, the board will establish enforceable conditions. These conditions shall include the VOC content of the innovative product, dispensing rates, application rates, and other parameters determined by the board to be necessary. The board will also specify the test methods for determining conformance to the conditions established. The test methods shall include criteria for reproducibility, accuracy, sampling, and laboratory procedures.

7. For a product for which an exemption has been granted pursuant to this section, the manufacturer shall notify the board in writing within 30 days of a change in the product formulation or recommended product usage directions and shall also notify the board within 30 days if the manufacturer learns of information that would alter the emissions estimates submitted to the board in support of the exemption application.

8. If the VOC limits specified in 9VAC5-45-430 A are lowered for a product category through a subsequent rulemaking, all innovative product exemptions granted for products in the product category, except as provided in this subdivision, shall have no force and effect as of the effective date of the modified VOC standard. This subdivision shall not apply to those innovative products that have VOC emissions less than the applicable lowered VOC limit and for which a written notification of the product's emissions status versus the lowered VOC limit has been submitted to and approved by the board at least 60 days before the effective date of such limits.

9. If the board believes that a consumer product for which an exemption has been granted no longer meets the criteria for an innovative product specified in subdivision 1 of this subsection, the board may modify or revoke the exemption as necessary to assure that the product will meet these criteria.

B. In granting an exemption under this section, the board will take into consideration whether the applicant has been granted an innovative product exemption by CARB. A manufacturer of consumer products that has been granted an innovative product exemption by the CARB under the innovative products provisions in Subchapter 8.5, Article 2, Section 94511, or Subchapter 8.5, Article 1, Section 94503.5 of Title 17 of the California Code of Regulations (see 9VAC5-20-21) may be exempt from Table 45-4A for the period of time that the CARB innovative products exemption remains in effect provided that all consumer products within the CARB innovative products exemption are contained in Table 45-4A. A manufacturer claiming such an exemption on this basis must submit to the board a copy of the innovative product exemption decision (i.e., the executive order), including all conditions established by CARB applicable to the exemption and certification that the manufacturer will comply with the CARB innovative product exemption decision for those products in the areas specified in 9VAC5-45-400 B.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-460. Administrative requirements.

A. Provisions follow concerning product dating.

1. Each manufacturer of a consumer product subject to 9VAC5-45-430 shall clearly display on each consumer product container or package, the day, month, and year on which the product was manufactured or a code indicating such date.

2. A manufacturer who uses the following code to indicate the date of manufacture shall not be subject to the requirements of subdivision B 1 of this section, if the code is represented separately from other codes on the product container so that it is easily recognizable:

YY DDD = year year day day day

where:

YY = two digits representing the year in which the product was manufactured, and

DDD = three digits representing the day of the year on which the product was manufactured, with 001 representing the first day of the year, 002 representing the second day of the year, and so forth (i.e., the Julian date).

3. The date or date code shall be located on the container or inside the cover or cap so that it is readily observable or obtainable (by simply removing the cap or cover) without irreversibly disassembling a part of the container or packaging. For the purposes of this subdivision, information may be displayed on the bottom of a container as long as it is clearly legible without removing any product packaging.

4. This date or date code shall be displayed on each consumer product container or package no later than the effective date of the applicable standard specified in 9VAC5-45-430 A.

5. The requirements of this section shall not apply to products containing no VOCs or containing VOCs at 0.10% by weight or less.

B. Additional provisions follow concerning product dating.

1. If a manufacturer uses a code indicating the date of manufacture for a consumer product subject to 9VAC5-45-430, an explanation of the date portion of the code must be filed with the board upon request by the board.

2. If a manufacturer changes any code indicating the date of manufacture for any consumer product subject to 9VAC5-45-430 and the board has requested an explanation of any previous product dating code for that consumer product, then an explanation of the modified code shall be submitted to the board before any products displaying the modified code are sold, supplied, or offered for sale within the areas designated in 9VAC5-45-400 B.

3. No person shall erase, alter, deface, or otherwise remove or make illegible any date or code indicating the date of manufacture from any regulated product container without the express authorization of the manufacturer.

4. Date code explanations for codes indicating the date of manufacture are public information and may not be claimed as confidential.

C. Additional provisions follow concerning the most restrictive limit that applies to a product.

1. For FIFRA-registered insecticides manufactured before August 1, 2011, notwithstanding the definition of "product category" in 9VAC5-45-420 C, if anywhere on the principal display panel, a representation is made that the product may be used as or is suitable for use as a consumer product for which a lower VOC limit is specified in 9VAC5-45-430 A, then the lowest VOC limit shall apply. This requirement does not apply to general purpose cleaners, antiperspirant or deodorant products, and insecticide foggers.

2. For consumer products manufactured on or after August 1, 2010, and FIFRA-registered insecticides manufactured on or after August 1, 2011, notwithstanding the definition of "product category" in 9VAC5-45-420 C, if anywhere on the container or packaging, or on any sticker or label affixed thereto, any representation is made that the product may be used as, or is suitable for use as a consumer product for which a lower VOC limit is specified in 9VAC5-45-430 A, then the lowest VOC limit shall apply. This requirement does not apply to general purpose cleaners, antiperspirant or deodorant products, and insecticide foggers.

D. Provisions follow concerning additional labeling requirements for aerosol adhesives, adhesive removers, electronic cleaner, electrical cleaner, energized electrical cleaner, and contact adhesives.

1. In addition to the requirements specified in subsections A and C of this section and in 9VAC5-45-510, both the manufacturer and responsible party for each aerosol adhesive, adhesive remover, electronic cleaner, electrical cleaner, energized electrical cleaner, and contact adhesive product subject to this article shall ensure that all products clearly display the following information on each product container that is manufactured on or after the effective date for the product category specified in Table 45-4A.

a. The product category as specified in 9VAC5-45-430 A or an abbreviation of the category shall be displayed;

b. (1) The applicable VOC standard for the product that is specified in 9VAC5-45-430 A, except for energized electrical cleaner, expressed as a percentage by weight, shall be displayed unless the product is included in an alternative control plan approved by the board, as provided in 9VAC5-45-440, and the product exceeds the applicable VOC standard;

(2) If the product is included in an alternative control plan approved by the board, and the product exceeds the applicable VOC standard specified in 9VAC5-45-430 A, the product shall be labeled with the term "ACP" or "ACP product";

c. If the product is classified as a special purpose spray adhesive, the applicable substrate or application or an abbreviation of the substrate or application that qualifies the product as special purpose shall be displayed;

d. If the manufacturer or responsible party uses an abbreviation as allowed by this subsection, an explanation of the abbreviation must be filed with the board before the abbreviation is used.

2. The information required in subdivision 1 of this subsection shall be displayed on the product container such that it is readily observable without removing or disassembling a portion of the product container or packaging. For the purposes of this subsection, information may be displayed on the bottom of a container as long as it is clearly legible without removing product packaging.

3. No person shall remove, alter, conceal, or deface the information required in subdivision 1 of this subsection prior to final sale of the product.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-470. Compliance.

The provisions of 9VAC5-45-20 (Compliance) apply.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-480. Compliance schedules.

Affected owners or other persons shall comply with the provisions of this article as expeditiously as possible but in no case later than:

1. August 1, 2010, in the Northern Virginia and Fredericksburg VOC Emissions Control Areas; or

2. March 1, 2014, in the Richmond VOC Emissions Control Area.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-490. Test methods and procedures.

A. The provisions of 9VAC5-45-30 (Emission testing) apply.

B. 1. Testing to determine compliance with the requirements of this article shall be performed using CARB Method 310 (see 9VAC5-20-21). Alternative methods that can accurately determine the concentration of VOCs in a subject product or its emissions may be used consistent with the approval requirements of 9VAC5-45-30 A.

2. In sections 3.5, 3.6, and 3.7 of CARB Method 310 (see 9VAC5-20-21), a process is specified for the "Initial Determination of VOC Content" and the "Final Determination of VOC Content." Information submitted to the board to meet the requirements of this section shall be available to the public except where the owner makes a showing satisfactory to the board under 9VAC5-170-60 B that the information meets the criteria in 9VAC5-170-60 C, in which case the information shall be handled in accordance with the procedures specified in §§ 10.1-1314 and 10.1-1314.1 of the Air Pollution Control Law of Virginia.

C. For VOC content determinations using product formulation and records, testing to determine compliance with the requirements of this article may also be demonstrated through calculation of the VOC content from records of the amounts of constituents used to make the product pursuant to the following criteria:

1. Compliance determinations based on these records may not be used unless the manufacturer of a consumer product keeps accurate records for each day of production of the amount and chemical composition of the individual product constituents. These records must be kept for at least three years.

2. For the purposes of this subsection, the VOC content shall be calculated according to the following equation:

where:

A = total net weight of unit (excluding container and packaging).

B = total weight of all VOCs per unit.

C = total weight of all exempted VOCs per unit as specified in 9VAC5-45-410.

3. If product records appear to demonstrate compliance with the VOC limits, but these records are contradicted by product testing performed using CARB Method 310 (see 9VAC5-20-21), the results of CARB Method 310 shall take precedence over the product records and may be used to establish a violation of the requirements of this article.

D. Testing to determine whether a product is a liquid or solid shall be performed using ASTM "Standard Test Method for Determining Whether a Material is a Liquid or a Solid" (see 9VAC5-20-21).

E. Testing to determine compliance with the certification requirements for charcoal lighter material shall be performed using the procedures specified in the South Coast Air Quality Management District Rule 1174 Ignition Method Compliance Certification Protocol (see 9VAC5-20-21).

F. Testing to determine distillation points of petroleum distillate-based charcoal lighter materials shall be performed using ASTM "Standard Test Method for Distillation of Petroleum Products at Atmospheric Pressure" (see 9VAC5-20-21).

G. No person shall create, alter, falsify, or otherwise modify records in such a way that the records do not accurately reflect the constituents used to manufacture a product, the chemical composition of the individual product, and other tests, processes, or records used in connection with product manufacture.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-500. Monitoring.

The provisions of 9VAC5-45-40 (Monitoring) apply.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-510. Notification, records and reporting.

A. The provisions of 9VAC5-45-50 (Notification, records and reporting) apply.

B. Upon 90 days written notice, the board may require a responsible party to register and report information for a consumer product the board may specify, including, but not limited to, all or part of the information specified in subdivisions 1 through 12 of this subsection. If the responsible party does not have or does not provide the information requested by the board, the board may require the reporting of this information by another owner or other person that has the information, including, but not limited to, any formulator, manufacturer, supplier, parent company, private labeler, distributor, or repackager.

1. The company name of the responsible party and the party's address, telephone number, and designated contact person.

2. A showing satisfactory to the board under 9VAC5-170-60 B and C that supports any claim of confidentiality made pursuant to 9VAC5-170-60, §§ 10.1-1314 and 10.1-1314.1 of the Virginia Air Pollution Control Law, and other applicable state confidentiality requirements .

3. The product brand name for each consumer product subject to registration and, upon request by the board, the product label.

4. The product category to which the consumer product belongs.

5. The applicable product forms listed separately.

6. An identification of each product brand name and form as a "Household Product," "I&I Product," or both.

7. Separate sales in pounds per year, to the nearest pound, and the method used to calculate sales for each product form.

8. For registrations submitted by two companies, an identification of the company that is submitting relevant data separate from that submitted by the responsible party. All registration information from both companies shall be submitted by the date specified in this subsection.

9. For each product brand name and form, the net percent by weight of the total product, less container and packaging, composed of the following, rounded to the nearest one-tenth of a percent (0.1%):

a. Total exempt compounds.

b. Total LVP-VOCs that are not fragrances.

c. Total all other carbon-containing compounds that are not fragrances.

d. Total all noncarbon-containing compounds.

e. Total fragrance.

f. For products containing greater than 2.0% by weight fragrance:

(1) The percent of fragrances that are LVP-VOCs; and

(2) The percent of fragrances that are all other carbon-containing compounds.

g. Total paradichlorobenzene.

10. For each product brand name and form, the identity, including the specific chemical name and associated Chemical Abstract Services (CAS) number, of the following:

a. Each exempt compound; and

b. Each LVP-VOC that is not a fragrance.

11. If applicable, the weight percent composed of propellant for each product.

12. If applicable, an identification of the type of propellant.

C. In addition to the requirements of subdivision B 10 of this section, the responsible party shall report to the board the net percentage by weight of each ozone-depleting compound that is:

1. Listed in 9VAC5-45-430 H; and

2. Contained in a product subject to registration under subsection B of this section in an amount greater than 1.0% by weight.

D. Information submitted by responsible parties pursuant to this section shall be available to the public except where the owner makes a showing satisfactory to the board under 9VAC5-170-60 B that the information meets the criteria in 9VAC5-170-60 C, in which case the information shall be handled in accordance with the procedures specified in §§ 10.1-1314 and 10.1-1314.1 of the Air Pollution Control Law of Virginia.

E. Provisions follow concerning special recordkeeping and reporting requirements for consumer products that contain perchloroethylene or methylene chloride.

1. The requirements of this subsection shall apply to all responsible parties for consumer products that are subject to 9VAC5-45-430 A and contain perchloroethylene or methylene chloride. For the purposes of this subsection, a product contains perchloroethylene or methylene chloride if the product contains 1.0% or more by weight (exclusive of the container or packaging) of either perchloroethylene or methylene chloride.

2. For each consumer product that contains perchloroethylene or methylene chloride, the responsible party shall keep records of the following information for products sold during each calendar year, beginning with the year of the applicable compliance date specified in 9VAC5-45-480, and ending with the year 2010:

a. The product brand name and a copy of the product label with legible usage instructions;

b. The product category to which the consumer product belongs;

c. The applicable product form, listed separately;

d. For each product form listed in subdivision 2 c of this subsection, the total sales during the calendar year, to the nearest pound (exclusive of the container or packaging), and the method used for calculating sales;

e. The weight percentage, to the nearest 0.10% of perchloroethylene and methylene chloride in the consumer product;

3. Upon 90 days written notice, the board may require a responsible party to report the information specified in subdivision 2 of this subsection.

4. Records required by subdivision 2 of this subsection shall be maintained by the responsible party for three calendar years from the date such records were created.

5. Alternative control plan notifications, records, and reporting shall be made as required by 9VAC5-45-440 and as required in the ACP agreement.

6. Innovative product notifications, records, and reporting shall be made as required by 9VAC5-45-450 and as required in the innovative products exemption notification letter.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

Article 5
Emission Standards for Architectural and Industrial Maintenance Coatings

9VAC5-45-520. Applicability.

A. Except as provided in 9VAC5-45-530, the provisions of this article apply to any owner or other person who supplies, sells, offers for sale, or manufactures any architectural coating for use, as well as any owner or other person who applies or solicits the application of any architectural coating.

B. The provisions of this article apply only to owners and other persons in the Northern Virginia, Fredericksburg, and Richmond Volatile Organic Compound Emissions Control Areas designated in 9VAC5-20-206.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-530. Exemptions.

A. The provisions of this article do not apply to:

1. Any architectural coating that is sold or manufactured for use exclusively outside of the Northern Virginia, Fredericksburg, and Richmond Volatile Organic Compound Emissions Control Areas or for shipment to other manufacturers for reformulation or repackaging.

2. Any aerosol coating product.

3. Any architectural coating that is sold in a container with a volume of one liter (1.057 quart) or less.

B. For purposes of this article, the terms "supply" or "supplied" do not include internal transactions within a business or governmental entity. These terms only apply to transactions between manufacturers/commercial distributors that sell, or otherwise provide, products to businesses/governmental entities/individuals.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-540. Definitions.

A. For the purpose of applying this article in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meanings given them in subsection C of this section.

B. As used in this article, all terms not defined herein shall have the meanings given them in 9VAC5-10 (General Definitions) unless otherwise required by context.

C. Terms defined.

"Adhesive" means any chemical substance that is applied for the purpose of bonding two surfaces together other than by mechanical means.

"Aerosol coating product" means a pressurized coating product containing pigments or resins that dispenses product ingredients by means of a propellant, and is packaged in a disposable can for hand-held application, or for use in specialized equipment for ground traffic/marking applications.

"Antenna coating" means a coating labeled and formulated exclusively for application to equipment and associated structural appurtenances that are used to receive or transmit electromagnetic signals.

"Antifouling coating" means a coating labeled and formulated for application to submerged stationary structures and their appurtenances to prevent or reduce the attachment of marine or freshwater biological organisms. To qualify as an antifouling coating, the coating shall be registered with both the U.S. EPA under the Federal Insecticide, Fungicide and Rodenticide Act (7 USC § 136 et seq.) and with the Pesticide Control Board under the provisions of Chapter 39 (§ 3.2-3900 et seq.) of Title 3.2 of the Code of Virginia.

"Appurtenance" means any accessory to a stationary structure coated at the site of installation, whether installed or detached, including but not limited to bathroom and kitchen fixtures; cabinets; concrete forms; doors; elevators; fences; hand railings; heating equipment, air conditioning equipment, and other fixed mechanical equipment or stationary tools; lampposts; partitions; pipes and piping systems; rain gutters and downspouts; stairways; fixed ladders; catwalks and fire escapes; and window screens.

"Architectural coating" means a coating to be applied to stationary structures or the appurtenances at the site of installation, to portable buildings at the site of installation, to pavements, or to curbs. Coatings applied in shop applications or to nonstationary structures such as airplanes, ships, boats, railcars, and automobiles, and adhesives are not considered architectural coatings for the purposes of this article.

"ASTM" means the American Society for Testing and Materials.

"Bitumens" means black or brown materials including, but not limited to, asphalt, tar, pitch, and asphaltite that are soluble in carbon disulfide, consist mainly of hydrocarbons, and are obtained from natural deposits of asphalt or as residues from the distillation of crude petroleum or coal.

"Bituminous roof coating" means a coating that incorporates bitumens that is labeled and formulated exclusively for roofing.

"Bituminous roof primer" means a primer that consists of a coating or mastic formulated and recommended for roofing, pavement sealing, or waterproofing that incorporates bitumens.

"Bond breaker" means a coating labeled and formulated for application between layers of concrete to prevent a freshly poured top layer of concrete from bonding to the layer over which it is poured.

"Calcimine recoater" means a flat solvent borne coating formulated and recommended specifically for recoating calcimine-painted ceilings and other calcimine-painted substrates.

"Clear brushing lacquers" means clear wood finishes, excluding clear lacquer sanding sealers, formulated with nitrocellulose or synthetic resins to dry by solvent evaporation without chemical reaction and to provide a solid, protective film, which are intended exclusively for application by brush and that are labeled as specified in subdivision 5 of 9VAC5-45-560.

"Clear wood coatings" means clear and semitransparent coatings, including lacquers and varnishes, applied to wood substrates to provide a transparent or translucent solid film.

"Coating" means a material applied onto or impregnated into a substrate for protective, decorative, or functional purposes. Such materials include, but are not limited to, paints, varnishes, sealers, and stains.

"Colorant" means a concentrated pigment dispersion in water, solvent, or binder that is added to an architectural coating after packaging in sale units to produce the desired color.

"Concrete curing compound" means a coating labeled and formulated for application to freshly poured concrete to retard the evaporation of water.

"Concrete surface retarder" means a mixture of retarding ingredients such as extender pigments, primary pigments, resin, and solvent that interact chemically with the cement to prevent hardening on the surface where the retarder is applied, allowing the retarded mix of cement and sand at the surface to be washed away to create an exposed aggregate finish.

"Conversion varnish" means a clear acid curing coating with an alkyd or other resin blended with amino resins and supplied as a single component or two-component product. Conversion varnishes produce a hard, durable, clear finish designed for professional application to wood flooring. The film formation is the result of an acid-catalyzed condensation reaction, effecting a transetherification at the reactive ethers of the amino resins.

"Dry fog coating" means a coating labeled and formulated only for spray application such that overspray droplets dry before subsequent contact with incidental surfaces in the vicinity of the surface coating activity.

"Exempt compound" means a compound identified as exempt under the definition of Volatile Organic Compound (VOC) in 9VAC5-10-20. Exempt compounds content of a coating shall be determined by Reference Method 24 or South Coast Air Quality Management District (SCAQMD) Method for Determination of Exempt Compounds (see 9VAC5-20-21).

"Extreme durability coating" means an air-dried coating, including fluoropolymer-based coating, that is formulated and recommended for application to exterior metal surfaces and touch-up, repair, and overcoating of precoated metal surfaces, and that meets the weathering requirements of American Architectural Manufacturers Association Voluntary Specification - Performance Requirements and Test Procedures for High Performance Organic Coatings on Aluminum Extrusions and Panels (see 9VAC5-20-21).

"Faux finishing coating" means a coating labeled and formulated as a stain or a glaze to create artistic effects including, but not limited to, dirt, old age, smoke damage, and simulated marble and wood grain.

"Fire-resistive coating" means an opaque coating labeled and formulated to protect the structural integrity by increasing the fire endurance of interior or exterior steel and other structural materials, that has been fire tested and rated by a testing agency and approved by building code officials for use in bringing assemblies of structural materials into compliance with federal, state, and local building code requirements. The fire-resistive coating shall be tested in accordance with ASTM Standard Test Method for Fire Tests of Building Construction Materials (see 9VAC5-20-21).

"Fire-retardant coating" means a coating labeled and formulated to retard ignition and flame spread, that has been fire tested and rated by a testing agency and approved by building code officials for use in bringing building and construction materials into compliance with federal, state, and local building code requirements. The fire-retardant coating shall be tested in accordance with ASTM Standard Test Method for Surface Burning Characteristics of Building Construction Materials (see 9VAC5-20-21).

"Flat coating" means a coating that is not defined under any other definition in this article and that registers gloss less than 15 on an 85-degree meter or less than five on a 60-degree meter according to ASTM Standard Test Method for Specular Gloss (see 9VAC5-20-21).

"Floor coating" means an opaque coating that is labeled and formulated for application to flooring, including, but not limited to, decks, porches, steps, and other horizontal surfaces, that may be subjected to foot traffic.

"Flow coating" means a coating labeled and formulated exclusively for use by electric power companies or their subcontractors to maintain the protective coating systems present on utility transformer units.

"Form-release compound" means a coating labeled and formulated for application to a concrete form to prevent the freshly poured concrete from bonding to the form. The form may consist of wood, metal, or some material other than concrete.

"Graphic arts coating or sign paint" means a coating labeled and formulated for hand-application by artists using brush or roller techniques to indoor and outdoor signs (excluding structural components) and murals including letter enamels, poster colors, copy blockers, and bulletin enamels.

"High-temperature coating" means a high-performance coating labeled and formulated for application to substrates exposed continuously or intermittently to temperatures above 204°C (400°F).

"Impacted immersion coating" means a high performance maintenance coating formulated and recommended for application to steel structures subject to immersion in turbulent, debris-laden water. These coatings are specifically resistant to high-energy impact damage caused by floating ice or debris.

"Industrial maintenance coating" means a high-performance architectural coating, including primers, sealers, undercoaters, intermediate coats, and topcoats, formulated for application to substrates exposed to one or more of the following extreme environmental conditions, and labeled as specified in subdivision 4 of 9VAC5-45-560:

1. Immersion in water, wastewater, or chemical solutions (aqueous and nonaqueous solutions), or chronic exposures of interior surfaces to moisture condensation;

2. Acute or chronic exposure to corrosive, caustic, or acidic agents, or to chemicals, chemical fumes, or chemical mixtures or solutions;

3. Repeated exposure to temperatures above 121°C (250°F);

4. Repeated (frequent) heavy abrasion, including mechanical wear and repeated (frequent) scrubbing with industrial solvents, cleansers, or scouring agents; or

5. Exterior exposure of metal structures and structural components.

"Lacquer" means a clear or opaque wood coating, including clear lacquer sanding sealers, formulated with cellulosic or synthetic resins to dry by evaporation without chemical reaction and to provide a solid, protective film.

"Low-solids coating" means a coating containing 0.12 kilogram or less of solids per liter (1 pound or less of solids per gallon) of coating material.

"Magnesite cement coating" means a coating labeled and formulated for application to magnesite cement decking to protect the magnesite cement substrate from erosion by water.

"Mastic texture coating" means a coating labeled and formulated to cover holes and minor cracks and to conceal surface irregularities, and is applied in a single coat of at least 10 mils (0.010 inch) dry film thickness.

"Metallic pigmented coating" means a coating containing at least 48 grams of elemental metallic pigment, mica particles or any combination of metallic pigment or mica particles per liter of coating as applied (0.4 pounds per gallon), when tested in accordance with South Coast Air Quality Air Management District (SCAQMD) Method for Determination of Weight Percent Elemental Metal in Coatings by X‑Ray Diffraction (see 9VAC5-20-21).

"Multicolor coating" means a coating that is packaged in a single container and that exhibits more than one color when applied in a single coat.

"Nonflat coating" means a coating that is not defined under any other definition in this article and that registers a gloss of 15 or greater on an 85-degree meter and 5 or greater on a 60-degree meter according to ASTM Standard Test Method for Specular Gloss (see 9VAC5-20-21).

"Nonflat high-gloss coating" means a nonflat coating that registers a gloss of 70 or above on a 60-degree meter according to ASTM Standard Test Method for Specular Gloss (see 9VAC5-20-21).

"Nonindustrial use" means any use of architectural coatings except in the construction or maintenance of any of the following: facilities used in the manufacturing of goods and commodities; transportation infrastructure, including highways, bridges, airports and railroads; facilities used in mining activities, including petroleum extraction; and utilities infrastructure, including power generation and distribution, and water treatment and distribution systems.

"Nuclear coating" means a protective coating formulated and recommended to seal porous surfaces such as steel (or concrete) that otherwise would be subject to intrusions by radioactive materials. These coatings must be resistant to long-term (service life) cumulative radiation exposure as determined by ASTM Standard Test Method for Effects of Gamma Radiation on Coatings for Use in Light-Water Nuclear Power Plants (see 9VAC5-20-21), relatively easy to decontaminate, and resistant to various chemicals to which the coatings are likely to be exposed as determined by ASTM Standard Test Method for Chemical Resistance of Coatings Used in Light-Water Nuclear Power Plants (see 9VAC5-20-21).

"Post-consumer coating" means a finished coating that would have been disposed of in a landfill, having completed its usefulness to a consumer, and does not include manufacturing wastes.

"Pretreatment wash primer" means a primer that contains a minimum of 0.5% acid, by weight, when tested in accordance with ASTM Standard Test Method for Acidity in Volatile Solvents and Chemical Intermediates Used in Paint, Varnish, Lacquer and Related Products (see 9VAC5-20-21), that is labeled and formulated for application directly to bare metal surfaces to provide corrosion resistance and to promote adhesion of subsequent topcoats.

"Primer" means a coating labeled and formulated for application to a substrate to provide a firm bind between the substrate and subsequent coats.

"Quick-dry enamel" means a nonflat coating that is labeled as specified in subdivision 8 of 9VAC5-45-560 and that is formulated to have the following characteristics:

1. Is capable of being applied directly from the container under normal conditions with ambient temperatures between 16 and 27°C (60 and 80°F);

2. When tested in accordance with ASTM Standard Methods for Drying, Curing, or Film Formation of Organic Coatings at Room Temperature (see 9VAC5-20-21), sets to touch in two hours or less, is tack free in four hours or less, and dries hard in eight hours or less by the mechanical test method; and

3. Has a dried film gloss of 70 or above on a 60-degree meter.

"Quick-dry primer sealer and undercoater" means a primer, sealer, or undercoater that is dry to the touch in 30 minutes and can be recoated in two hours when tested in accordance with ASTM Standard Methods for Drying, Curing, or Film Formation of Organic Coatings at Room Temperature (see 9VAC5-20-21).

"Recycled coating" means an architectural coating formulated such that not less than 50% of the total weight consists of secondary and post-consumer coating, with not less than 10% of the total weight consisting of post-consumer coating.

"Residence" means areas where people reside or lodge, including, but not limited to, single and multiple family dwellings, condominiums, mobile homes, apartment complexes, motels, and hotels.

"Roof coating" means a nonbituminous coating labeled and formulated exclusively for application to roofs for the primary purpose of preventing penetration of the substrate by water or reflecting heat and ultraviolet radiation. Metallic pigmented roof coatings, which qualify as metallic pigmented coatings, shall not be considered in this category, but shall be considered to be in the metallic pigmented coatings category.

"Rust-preventive coating" means a coating formulated exclusively for nonindustrial use to prevent the corrosion of metal surfaces and labeled as specified in subdivision 6 of 9VAC5-45-560.

"Sanding sealer" means a clear or semitransparent wood coating labeled and formulated for application to bare wood to seal the wood and to provide a coat that can be abraded to create a smooth surface for subsequent applications of coatings. A sanding sealer that also meets the definition of a lacquer is not included in this category, but it is included in the lacquer category.

"Sealer" means a coating labeled and formulated for application to a substrate for one or more of the following purposes: to prevent subsequent coatings from being absorbed by the substrate, or to prevent harm to subsequent coatings by materials in the substrate.

"Secondary coating (rework)" means a fragment of a finished coating or a finished coating from a manufacturing process that has converted resources into a commodity of real economic value, but does not include excess virgin resources of the manufacturing process.

"Shellac" means a clear or opaque coating formulated solely with the resinous secretions of the lac beetle (Laciffer lacca), thinned with alcohol, and formulated to dry by evaporation without a chemical reaction.

"Shop application" means the application of a coating to a product or a component of a product in or on the premises of a factory or a shop as part of a manufacturing, production, or repairing process (e.g., original equipment manufacturing coatings).

"Solicit" means to require for use or to specify by written or oral contract.

"Specialty primer, sealer, and undercoater" means a coating labeled as specified in subdivision 7 of 9VAC5-45-560 and that is formulated for application to a substrate to seal fire, smoke or water damage; to condition excessively chalky surfaces; or to block stains. An excessively chalky surface is one that is defined as having a chalk rating of four or less as determined by ASTM Standard Test Methods for Evaluating the Degree of Chalking of Exterior Paint Films (see 9VAC5-20-21).

"Stain" means a clear, semitransparent, or opaque coating labeled and formulated to change the color of a surface, but not conceal the grain pattern or texture.

"Swimming pool coating" means a coating labeled and formulated to coat the interior of swimming pools and to resist swimming pool chemicals.

"Swimming pool repair and maintenance coating" means a rubber-based coating labeled and formulated to be used over existing rubber-based coatings for the repair and maintenance of swimming pools.

"Temperature-indicator safety coating" means a coating labeled and formulated as a color-changing indicator coating for the purpose of monitoring the temperature and safety of the substrate, underlying piping, or underlying equipment, and for application to substrates exposed continuously or intermittently to temperatures above 204°C (400°F).

"Thermoplastic rubber coating and mastic" means a coating or mastic formulated and recommended for application to roofing or other structural surfaces and that incorporates no less than 40% by weight of thermoplastic rubbers in the total resin solids and may also contain other ingredients including, but not limited to, fillers, pigments, and modifying resins.

"Tint base" means an architectural coating to which colorant is added after packaging in sale units to produce a desired color.

"Traffic marking coating" means a coating labeled and formulated for marking and striping streets, highways, or other traffic surfaces including, but not limited to, curbs, berets, driveways, parking lots, sidewalks, and airport runways.

"Undercoater" means a coating labeled and formulated to provide a smooth surface for subsequent coatings.

"Varnish" means a clear or semitransparent wood coating, excluding lacquers and shellacs, formulated to dry by chemical reaction on exposure to air. Varnishes may contain small amounts of pigment to color a surface or control the fetal sheen or gloss of the finish.

"VOC content" means the weight of VOC per volume of coating, calculated according to the procedures specified in 9VAC5-45-590 B.

"Waterproofing concrete/masonry sealer" means a clear or pigmented film-forming coating that is labeled and formulated for sealing concrete and masonry to provide resistance against water, alkalis, acids, ultraviolet light, and staining.

"Waterproofing sealer" means a coating labeled and formulated for application to a porous substrate for the primary purpose of preventing the penetration of water.

"Wood preservative" means a coating labeled and formulated to protect exposed wood from decay or insect attack that is registered with both the U.S. EPA under the Federal Insecticide, Fungicide, and Rodenticide Act (7 USC § 136, et seq.) and with the Pesticide Control Board under the provisions of Chapter 39 (§ 3.2-3900 et seq.) of Title 3.2 of the Code of Virginia.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-550. Standard for volatile organic compounds.

A. Except as provided in this section, no owner or other person shall (i) manufacture, blend, or repackage for sale, (ii) supply, sell, or offer for sale, or (iii) solicit for application or apply any architectural coating with a VOC content in excess of the corresponding limit specified in Table 45-5A.

B. If anywhere on the container of any architectural coating, or any label or sticker affixed to the container, or in any sales, advertising, or technical literature supplied by a manufacturer or any person acting on behalf of a manufacturer, any representation is made that indicates that the coating meets the definition of or is recommended for use for more than one of the coating categories listed in Table 45-5A, then the most restrictive VOC content limit shall apply. This provision does not apply to the following coating categories:

Lacquer coatings (including lacquer sanding sealers);

Metallic pigmented coatings;

Shellacs;

Fire-retardant coatings;

Pretreatment wash primers;

Industrial maintenance coatings;

Low-solids coatings;

Wood preservatives;

High-temperature coatings;

Temperature-indicator safety coatings;

Antenna coatings;

Antifouling coatings;

Flow coatings;

Bituminous roof primers;

Calcimine recoaters;

Impacted immersion coatings;

Nuclear coatings;

Thermoplastic rubber coating and mastic; and

Specialty primers, sealers, and undercoaters.

Table 45-5A
VOC Content Limits for Architectural Coatings

Limits are expressed in grams of VOC per liter1 of coating thinned to the manufacturer's maximum recommendation, excluding the volume of any water, exempt compounds, or colorant added to tint bases. "Manufacturers maximum recommendation" means the maximum recommendation for thinning that is indicated on the label or lid of the coating container.

Coating Category

VOC Content Limit

Flat Coatings

100

Nonflat Coatings

150

Nonflat High Gloss Coatings

250

Specialty Coatings:

Antenna Coatings

530

Antifouling Coatings

400

Bituminous Roof Coatings

300

Bituminous Roof Primers

350

Bond Breakers

350

Calcimine Recoater

475

Clear Wood Coatings:

Clear Brushing Lacquers

680

Lacquers (including lacquer sanding sealers)

550

Sanding Sealers (other than lacquer sanding sealers)

350

Conversion Varnishes

725

Varnishes (other than conversion varnishes)

350

Concrete Curing Compounds

350

Concrete Surface Retarder

780

Dry Fog Coatings

400

Extreme durability coating

400

Faux Finishing Coatings

350

Fire‑Resistive Coatings

350

Fire‑Retardant Coatings:

Clear

650

Opaque

350

Floor Coatings

250

Flow Coatings

420

Form‑Release Compounds

250

Graphic Arts Coatings (Sign Paints)

500

High‑Temperature Coatings

420

Impacted Immersion Coating

780

Industrial Maintenance Coatings

340

Low‑Solids Coatings

120

Magnesite Cement Coatings

450

Mastic Texture Coatings

300

Metallic Pigmented Coatings

500

Multi‑Color Coatings

250

Nuclear Coatings

450

Pretreatment Wash Primers

420

Primers, Sealers, and Undercoaters

200

Quick‑Dry Enamels

250

Quick‑Dry Primers, Sealers and Undercoaters

200

Recycled Coatings

250

Roof Coatings

250

Rust Preventative Coatings

400

Shellacs:

Clear

730

Opaque

550

Specialty Primers, Sealers, and Undercoaters

350

Stains

250

Swimming Pool Coatings

340

Swimming Pool Repair and Maintenance Coatings

340

Temperature‑Indicator Safety Coatings

550

Thermoplastic Rubber Coating and Mastic

550

Traffic Marking Coatings

150

Waterproofing Sealers

250

Waterproofing Concrete/Masonry Sealers

400

Wood Preservatives

350

1 Conversion factor: one pound of VOC per gallon (U.S.) = 119.95 grams per liter.

C. A coating manufactured prior to the applicable compliance date specified in 9VAC5-45-580, may be sold, supplied, or offered for sale for two years following the applicable compliance date. In addition, a coating manufactured before the applicable compliance date specified in 9VAC5-45-580, may be applied at any time, both before and after the applicable compliance date, so long as the coating complied with the standards in effect at the time the coating was manufactured. This subsection does not apply to any coating that does not display the date or date code required by subdivision 1 of 9VAC5-45-560.

D. All architectural coating containers used to apply the contents therein to a surface directly from the container by pouring, siphoning, brushing, rolling, padding, ragging, or other means, shall be closed when not in use. These architectural coatings containers include, but are not limited to, drums, buckets, cans, pails, trays, or other application containers. Containers of any VOC-containing materials used for thinning and cleanup shall also be closed when not in use.

E. No owner or other person who applies or solicits the application of any architectural coating shall apply a coating that contains any thinning material that would cause the coating to exceed the applicable VOC limit specified in Table 45-5A.

F. No owner or other person shall apply or solicit the application of any rust preventive coating for industrial use unless such a rust preventive coating complies with the industrial maintenance coating VOC limit specified in Table 45-5A.

G. For any coating that does not meet any of the definitions for the specialty coatings categories listed in Table 45-5A, the VOC content limit shall be determined by classifying the coating as a flat coating or a nonflat coating, based on its gloss, as defined in 9VAC5-45-540 C, and the corresponding flat or nonflat coating limit shall apply.

H. Notwithstanding the provisions of subsection A of this section, up to 10% by volume of VOC may be added to a lacquer to avoid blushing of the finish during days with relative humidity greater than 70% and temperature below 65°F, at the time of application, provided that the coating contains acetone and no more than 550 grams of VOC per liter of coating, less water and exempt compounds, prior to the addition of VOC.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-560. Administrative requirements.

Each manufacturer of any architectural coatings subject to this article shall display the information listed in subdivisions 1 through 8 of this section on the coating container (or label) in which the coating is sold or distributed.

1. The date the coating was manufactured, or a date code representing the date, shall be indicated on the label, lid, or bottom of the container. If the man­ufacturer uses a date code for any coating, the manufacturer shall file an explanation of each code with the board.

2. A statement of the manufacturer's recommendation regarding thinning of the coating shall be indicated on the label or lid of the container. This requirement does not apply to the thinning of architectural coatings with water. If thinning of the coating prior to use is not necessary, the recommendation shall specify that the coating is to be applied without thinning.

3. Each container of any coating subject to this article shall display either the maximum or the actual VOC content of the coating, as supplied, including the maximum thinning as recommended by the manufacturer. VOC content shall be displayed in grams of VOC per liter of coating. VOC content displayed shall be calculated using product formulation data, or shall be determined using the test methods in 9VAC5-45-590 C. The equations in 9VAC5-45-590 B shall be used to calculate VOC content.

4. In addition to the information specified in subdivisions 1, 2, and 3 of this section, each manufacturer of any industrial maintenance coating subject to this article shall display on the label or the lid of the container in which the coating is sold or distributed one or more of the descriptions listed in this subdivision.

a. "For industrial use only."

b. "For professional use only."

c. "Not for residential use" or "Not intended for residential use."

5. The labels of all clear brushing lacquers shall prominently display the statements "For brush application only," and "This product shall not be thinned or sprayed."

6. The labels of all rust preventive coatings shall prominently display the statement "For Metal Substrates Only."

7. The labels of all specialty primers, sealers, and undercoaters shall prominently display one or more of the descriptions listed in this subdivision.

a. For blocking stains.

b. For fire-damaged substrates.

c. For smoke-damaged substrates.

d. For water-damaged substrates.

e. For excessively chalky substrates.

8. The labels of all quick dry enamels shall prominently display the words "Quick Dry" and the dry hard time.

9. The labels of all nonflat high-gloss coatings shall prominently display the words "High Gloss."

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-570. Compliance.

The provisions of subsections B, D, F, and G of 9VAC5-45-20 (Compliance) apply. The other provisions of 9VAC5-45-20 do not apply.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-580. Compliance schedules.

Affected persons shall comply with the provisions of this article as expeditiously as possible but in no case later than:

1. January 1, 2005, in the Northern Virginia VOC Emissions Control Area;

2. January 1, 2008, in the Fredericksburg VOC Emissions Control Area; or

3. March 1, 2014, in the Richmond VOC Emissions Control Area.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-590. Test methods and procedures.

A. The provisions of subsection G of 9VAC5-45-30 (Emission testing) apply. The other provisions of 9VAC5-45-30 do not apply.

B. For the purpose of determining compliance with the VOC content limits in Table 45-5A, the VOC content of a coating shall be determined by using the procedures described in subdivision 1 or 2 of this subsection, as appropriate. The VOC content of a tint base shall be determined without colorant that is added after the tint base is manufactured.

1. With the exception of low solids coatings, determine the VOC content in grams of VOC per liter of coating thinned to the manufacturer's maximum recommendation, excluding the volume of any water and exempt compounds. Determine the VOC content using the following equation:

http://leg5.state.va.us/images/432980910196DEQGG_files/image001.gif

where:

VOC content = grams of VOC per liter of coating

Ws = weight of volatiles, in grams

Ww = weight of water, in grams

Wec = weight of exempt compounds, in grams

Vm = volume of coating, in liters

Vw = volume of water, in liters

Vec = volume of exempt compounds, in liters

2. For low solids coatings, determine the VOC content in units of grams of VOC per liter of coating thinned to the manufacturer's maximum recommendation, including the volume of any water and exempt compounds. Determine the VOC content using the following equation:

http://leg5.state.va.us/images/432980910196DEQGG_files/image002.gif

where:

VOC Content (ls) = the VOC content of a low solids coating in grams per liter of coating

Ws = weight of volatiles, in grams

Ww = weight of water, in grams

Wec = weight of exempt compounds, in grams

Vm = volume of coating, in liters

C. To determine the physical properties of a coating in order to perform the calculations in subsection B, the reference method for VOC content is Reference Method 24 (see 9VAC5-20-21). The exempt compounds content shall be determined by SCAQMD Method for Determination of Exempt Compounds (see 9VAC5-20-21). To determine the VOC content of a coating, the manufacturer may use Reference Method 24, formulation data, or any other reasonable means for predicting that the coating has been formulated as intended (e.g., quality assurance checks, recordkeeping). However, if there are any inconsistencies between the results of a Reference Method 24 test and any other means for determining VOC content, the Reference Method 24 results will govern. The board may require the manufacturer to conduct a Reference Method 24 analysis.

D. Exempt compounds that are cyclic, branched, or linear, completely methylated siloxanes shall be analyzed as exempt compounds by Bay Area Quality Management District (BAAQMD) Method for Determination of Volatile Methylsiloxanes in Solvent‑Based Coatings, Inks, and Related Materials (see 9VAC5-20-21).

E. The exempt compound parachlorobenzotrifluoride shall be analyzed as an exempt compound by BAAQMD Method for Determination of Volatile Organic Compounds in Solvent‑Based Coatings and Related Materials Containing Parachlorobenzotrifluoride (see 9VAC5-20-21).

F. The content of compounds exempt under Reference Method 24 shall be determined by SCAQMD Method for Determination of Exempt Compounds, Laboratory Methods of Analysis for Enforcement Samples (see 9VAC5-20-21).

G. The VOC content of a coating shall be determined by Reference Method 24 (see 9VAC5-20-21).

H. The VOC content of coatings may be determined by either Reference Method 24 or SCAQMD Method for Determination of Exempt Compounds, Laboratory Methods of Analysis for Enforcement Samples (see 9VAC5-20-21).

I. Other test methods may be used for purposes of determining compliance with this article consistent with the approval requirements of 9VAC5-45-20 A 2.

J. Analysis of methacrylate multicomponents used as traffic marking coatings shall be conducted according to a modification of Reference Method 24 (40 CFR 59, Subpart D, Appendix A; see 9VAC5-20-21). This method has not been approved for methacrylate multicomponent coatings used for other purposes than as traffic marking coatings or for other classes of multicomponent coatings.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-600. Monitoring.

The provisions of 9VAC5-45-40 (Monitoring) do not apply.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-610. Notification, records and reporting.

A. The provisions of subsections E, F, and H of 9VAC5-45-50 (Notification, records and reporting) apply. The other provisions of 9VAC5-45-50 do not apply.

B. For each architectural coating that contains perchloroethylene or methylene chloride, the manufacturer shall keep records of the following information for products sold during the preceding year:

1. The product brand name and a copy of the product label with the legible usage instructions;

2. The product category listed in Table 45-5A to which the coating belongs;

3. The total sales during the calendar year to the nearest gallon;

4. The volume percentage to the nearest 0.10% of perchloroethylene and methylene chloride in the coating.

C. Upon 90 days written notice, the board may require a responsible party to report the information specified in subsection B of this section.

D. Records required by subsection B of this section shall be maintained by the responsible party for three calendar years from the date such records were created.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

Article 6
Emission Standards for Adhesives and Sealants

9VAC5-45-620. Applicability.

A. Except as provided in 9VAC5-45-630, the provisions of this article apply to any owner or other person who supplies, sells, offers for sale, or manufactures for sale any adhesive, sealant, adhesive primer, or sealant primer that contains volatile organic compounds (VOC).

B. Except as provided in 9VAC5-45-630, the provisions of this article apply to any owner or other person who uses, applies for compensation, solicits the use of, requires the use of, or specifies the application of, any adhesive, sealant, adhesive primer, or sealant primer that contains volatile organic compounds.

C. The provisions of this article apply only to owners or other persons in the Northern Virginia, Fredericksburg, and Richmond Volatile Organic Compound Emissions Control Areas designated in 9VAC5-20-206.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-630. Exemptions.

A. The provisions of this article do not apply to a manufacturer or distributor who sells, supplies, or offers for sale an adhesive, sealant, adhesive primer or sealant primer that does not comply with the VOC standards specified in 9VAC5-45-650 A provided that such manufacturer or distributor makes and keeps records demonstrating (i) that the adhesive, sealant, adhesive primer or sealant primer is intended for shipment and use outside of the volatile organic compound emissions control areas designated in 9VAC5-45-620 C, and (ii) that the manufacturer or distributor has taken reasonable prudent precautions to assure that the adhesive, sealant, adhesive primer or sealant primer is not distributed to or within those applicable volatile organic compound emissions control areas. This exemption does not apply to any adhesive, sealant, adhesive primer or sealant primer that is sold, supplied, or offered for sale by any owner or other person to a retail outlet in those applicable volatile organic compound emissions control areas.

B. The provisions of this article do not apply to the sale or use of the following compounds:

1. Adhesives, sealants, adhesive primers or sealant primers being tested or evaluated in any research and development, quality assurance or analytical laboratory, provided records are maintained as required in 9VAC5-45-730 of this article;

2. Adhesives, sealants, adhesive primers and sealant primers that are subject to standards for volatile organic compounds pursuant to Article 3 (9VAC5-45-280 et seq.), Article 4 (9VAC5-45-400 et seq.) or Article 5 (9VAC5-45-520 et seq.) of this part;

3. Adhesives and sealants that contain less than 20 grams of VOC per liter of adhesive or sealant, less water and less exempt compounds, as applied;

4. Cyanoacrylate adhesives;

5. Adhesives, sealants, adhesive primers or sealant primers (except for plastic cement welding adhesives and contact adhesives) that are sold or supplied by the manufacturer or supplier in containers with a net volume of 16 fluid ounces or less, or a net weight of one pound or less; and

6. Contact adhesives that are sold or supplied by the manufacturer or supplier in containers with a net volume of one gallon or less.

C. The provisions of this article do not apply to the use of adhesives, sealants, adhesive primers, sealant primers, surface preparation and cleanup solvents as follows:

1. Tire repair operations, provided the label of the adhesive states "For tire repair only";

2. Assembly, repair and manufacturing operations for aerospace or undersea-based weapon systems;

3. Medical equipment manufacturing operations; and

4. Plaque laminating operations in which adhesives are used to bond clear, polyester acetate laminate to wood with lamination equipment installed prior to July 1, 1992. Any owner or other person claiming exemption pursuant to this subdivision shall record and maintain monthly operational records sufficient to demonstrate compliance with this exemption in accordance with 9VAC5-45-730 of this article.

D. Except for the requirements listed in subdivisions 1 and 2 of this subsection, the provisions of this article do not apply if the total VOC emissions from all adhesives, sealants, adhesive primers and sealant primers used at the stationary source are less than 200 pounds per calendar year, or an equivalent volume.

1. The following requirements still apply:

a. 9VAC5-45-620 (Applicability);

b. 9VAC5-45-650 A (concerning prohibition from selling, supplying, offering for sale, or manufacturing for sale, noncompliant adhesives, sealants, adhesive primers or sealant primers);

c. 9VAC5-45-690 (Compliance); and

d. 9VAC5-45-700 (Compliance schedules).

2. Any owner or other person claiming exemption pursuant to this subsection shall record and maintain monthly operational records sufficient to demonstrate compliance and in accordance with 9VAC5-45-730 of this article.

E. The provisions of 9VAC5-45-650 B and 9VAC5-45-650 D do not apply to the use of any adhesives, sealants, adhesive primers, sealant primers, cleanup solvents and surface preparation solvents, provided that the total volume of noncompliant adhesives, sealants, primers, cleanup and surface preparation solvents applied facility-wide does not exceed 55 gallons per calendar year. Any owner or other person claiming exemption pursuant to this subsection shall record and maintain monthly operational records sufficient to demonstrate compliance with this exemption in accordance with 9VAC5-45-730.

F. The provisions of 9VAC5-45-650 A do not apply to the sale of any adhesive, sealant, adhesive primer or sealant primer to an owner or other person using add-on air pollution control equipment pursuant to the provisions of 9VAC5-45-660 to comply with the requirements of this article, provided that the seller makes and keeps records in accordance with 9VAC5-45-730 E.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-640. Definitions.

A. For the purpose of applying this article in the context of the Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meanings given them in subsection C of this section.

B. As used in this article, all terms not defined herein shall have the meanings given them in 9VAC5-10 (General Definitions), unless otherwise required by context.

C. Terms Defined.

"Acrylonitrile-butadiene-styrene or ABS welding adhesive" means any adhesive intended by the manufacturer to weld acrylonitrile-butadiene-styrene pipe, which is made by reacting monomers of acrylonitrile, butadiene and styrene.

"Adhesive" means any chemical substance that is applied for the purpose of bonding two surfaces together other than by mechanical means.

"Adhesive primer" means any product intended by the manufacturer for application to a substrate, prior to the application of an adhesive, to provide a bonding surface.

"Aerosol adhesive" means an adhesive packaged as an aerosol product in which the spray mechanism is permanently housed in a nonrefillable can designed for handheld application without the need for ancillary hoses or spray equipment.

"Aerospace component" means for the purposes of this article, the fabricated part, assembly of parts or completed unit of any aircraft, helicopter, missile, or space vehicle, including passenger safety equipment.

"Architectural sealant or primer" means any sealant or sealant primer intended by the manufacturer to be applied to stationary structures, including mobile homes, and their appurtenances. Appurtenances to an architectural structure include, but are not limited to, hand railings, cabinets, bathroom and kitchen fixtures, fences, rain gutters and downspouts, and windows.

"ASTM" means the American Society for Testing and Materials.

"Automotive glass adhesive primer" means an adhesive primer labeled by the manufacturer to be applied to automotive glass prior to installation of the glass using an adhesive/sealant. This primer improves the adhesion to pinch weld and blocks ultraviolet light.

"CARB" means the California Air Resources Board.

"Ceramic tile installation adhesive" means any adhesive intended by the manufacturer for use in the installation of ceramic tiles.

"Chlorinated polyvinyl chloride plastic" or "CPVC plastic" means a polymer of the vinyl chloride monomer that contains 67% chlorine and is normally identified with a CPVC marking.

"Chlorinated polyvinyl chloride welding adhesive" or "CPVC welding adhesive" means an adhesive labeled for welding of chlorinated polyvinyl chloride plastic.

"Cleanup solvent" means a VOC-containing material used to remove a loosely held uncured (i.e., not dry to the touch) adhesive or sealant from a substrate, or clean equipment used in applying a material.

"Computer diskette jacket manufacturing adhesive" means any adhesive intended by the manufacturer to glue the fold-over flaps to the body of a vinyl computer diskette jacket.

"Contact bond adhesive" means an adhesive that: (i) is designed for application to both surfaces to be bonded together, (ii) is allowed to dry before the two surfaces are placed in contact with each other, (iii) forms an immediate bond that is impossible, or difficult, to reposition after both adhesive-coated surfaces are placed in contact with each other, and (iv) does not need sustained pressure or clamping of surfaces after the adhesive-coated surfaces have been brought together using sufficient momentary pressure to establish full contact between both surfaces. Contact bond adhesive does not include rubber cements that are primarily intended for use on paper substrates. Contact bond adhesive also does not include vulcanizing fluids that are designed and labeled for tire repair only.

"Cove base" means a flooring trim unit, generally made of vinyl or rubber, having a concave radius on one edge and a convex radius on the opposite edge that is used in forming a junction between the bottom wall course and the floor or to form an inside corner.

"Cove base installation adhesive" means any adhesive intended by the manufacturer to be used for the installation of cove base or wall base on a wall or vertical surface at floor level.

"Cyanoacrylate adhesive" means any adhesive with a cyanoacrylate content of at least 95% by weight.

"Dry wall installation" means the installation of gypsum dry wall to studs or solid surfaces using an adhesive formulated for that purpose.

"Fiberglass" means a material consisting of extremely fine glass fibers.

"Flexible vinyl" means nonrigid polyvinyl chloride plastic with at least 5.0% by weight plasticizer content.

"Indoor floor covering installation adhesive" means any adhesive intended by the manufacturer for use in the installation of wood flooring, carpet, resilient tile, vinyl tile, vinyl backed carpet, resilient sheet and roll, or artificial grass. Adhesives used to install ceramic tile and perimeter bonded sheet flooring with vinyl backing onto a nonporous substrate, such as flexible vinyl, are excluded from this category.

"Laminate" means a product made by bonding together two or more layers of material.

"Low-solids adhesive, sealant or primer" means any product that contains 120 grams or less of solids per liter of material.

"Marine deck sealant" or "marine deck sealant primer" means any sealant or sealant primer labeled for application to wooden marine decks.

"Medical equipment manufacturing" means the manufacture of medical devices, such as, but not limited to, catheters, heart valves, blood cardioplegia machines, tracheostomy tubes, blood oxygenators, and cardiatory reservoirs.

"Metal to urethane/rubber molding or casting adhesive" means any adhesive intended by the manufacturer to bond metal to high density or elastomeric urethane or molded rubber materials, in heater molding or casting processes, to fabricate products such as rollers for computer printers or other paper handling equipment.

"Multipurpose construction adhesive" means any adhesive intended by the manufacturer for use in the installation or repair of various construction materials, including but not limited to, drywall, subfloor, panel, fiberglass reinforced plastic (FRP), ceiling tile, and acoustical tile.

"Nonmembrane roof installation/repair adhesive" means any adhesive intended by the manufacturer for use in the installation or repair of nonmembrane roofs and that is not intended for the installation of prefabricated single-ply flexible roofing membrane, including, but not limited to, plastic or asphalt roof cement, asphalt roof coating, and cold application cement.

"Outdoor floor covering installation adhesive" means any adhesive intended by the manufacturer for use in the installation of floor covering that is not in an enclosure and that is exposed to ambient weather conditions during normal use.

"Ozone season" means the period beginning May 1 of a calendar year and ending on September 30 of the same year, inclusive.

"Panel installation" means the installation of plywood, predecorated hardboard (or tileboard), fiberglass reinforced plastic, and similar predecorated or nondecorated panels to studs or solid surfaces using an adhesive formulated for that purpose.

"Perimeter bonded sheet flooring installation" means the installation of sheet flooring with vinyl backing onto a nonporous substrate using an adhesive designed to be applied only to a strip of up to four inches wide around the perimeter of the sheet flooring.

"Plastic cement welding adhesive" means any adhesive intended by the manufacturer for use to dissolve the surface of plastic to form a bond between mating surfaces.

"Plastic cement welding adhesive primer" means any primer intended by the manufacturer for use to prepare plastic substrates prior to bonding or welding.

"Plastic foam" means foam constructed of plastics.

"Plasticizer" means a material, such as a high boiling point organic solvent, that is incorporated into a vinyl to increase its flexibility, workability, or distensibility.

"Plastics" means synthetic materials chemically formed by the polymerization of organic (carbon-based) substances. Plastics are usually compounded with modifiers, extenders, and/or reinforcers and are capable of being molded, extruded, cast into various shapes and films or drawn into filaments.

"Polyvinyl chloride plastic" or "PVC plastic" means a polymer of the chlorinated vinyl monomer that contains 57% chlorine.

"Polyvinyl chloride welding adhesive" or "PVC welding adhesive" means any adhesive intended by the manufacturer for use in the welding of PVC plastic pipe.

"Porous material" means a substance that has tiny openings, often microscopic, in which fluids may be absorbed or discharged, including, but not limited to, wood, paper, and corrugated paperboard.

"Propellant" means a fluid under pressure that expels the contents of a container when a valve is opened.

"Reactive diluent" means a liquid that is a reactive organic compound during application and one in that, through chemical and/or physical reactions, such as polymerization, 20% or more of the reactive organic compound becomes an integral part of a finished material.

"Roadway sealant" means any sealant intended by the manufacturer for application to public streets, highways and other surfaces including, but not limited to, curbs, berms, driveways, and parking lots.

"Rubber" means any natural or manmade rubber substrate, including but not limited to, styrene-butadiene rubber, polychloroprene (neoprene), butyl rubber, nitrile rubber, chlorosulfonated polyethylene and ethylene propylene diene terpolymer.

"SCAQMD" means the South Coast Air Quality Management District, a part of the California Air Resources Board, which is responsible for the regulation of air quality in the state of California.

"Sealant" means any material with adhesive properties that is formulated primarily to fill, seal, waterproof or weatherproof gaps or joints between two surfaces. Sealants include sealant primers and caulks.

"Sealant primer" means any product intended by the manufacturer for application to a substrate, prior to the application of a sealant, to enhance the bonding surface.

"Sheet-applied rubber installation" means the process of applying sheet rubber liners by hand to metal or plastic substrates to protect the underlying substrate from corrosion or abrasion. These operations also include laminating sheet rubber to fabric by hand.

"Single-ply roof membrane" means a prefabricated single sheet of rubber, normally ethylene propylene diene terpolymer, that is field applied to a building roof using one layer of membrane material.

"Single-ply roof membrane installation and repair adhesive" means any adhesive labeled for use in the installation or repair of single-ply roof membrane. Installation includes, as a minimum, attaching the edge of the membrane to the edge of the roof and applying flashings to vents, pipes and ducts that protrude through the membrane. Repair includes gluing the edges of torn membrane together, attaching a patch over a hole and reapplying flashings to vents, pipes or ducts installed through the membrane.

"Single-ply roof membrane adhesive primer" means any primer labeled for use to clean and promote adhesion of the single-ply roof membrane seams or splices prior to bonding.

"Single-ply roof membrane sealant" means any sealant labeled for application to single-ply roof membrane.

"Solvent" means organic compounds that are used as diluents, thinners, dissolvers, viscosity reducers, cleaning agents or other related uses.

"Structural glazing adhesive" means any adhesive intended by the manufacturer to apply glass, ceramic, metal, stone or composite panels to exterior building frames.

"Subfloor installation" means the installation of subflooring material over floor joists, including the construction of any load bearing joists. Subflooring is covered by a finish surface material.

"Surface preparation solvent" means a solvent used to remove dirt, oil and other contaminants from a substrate prior to the application of a primer, adhesive or sealant.

"Thin metal laminating adhesive" means any adhesive intended by the manufacturer for use in bonding multiple layers of metal to metal or metal to plastic in the production of electronic or magnetic components in which the thickness of the bond line is less than 0.25 mils.

"Tire repair" means a process that includes expanding a hole, tear, fissure or blemish in a tire casing by grinding or gouging, applying adhesive, and filling the hole or crevice with rubber.

"Tire tread adhesive" means any adhesive intended by the manufacturer for application to the back of precure tread rubber and to the casing and cushion rubber. Tire tread adhesive may also be used to seal buffed tire casings to prevent oxidation while the tire is being prepared for a new tread.

"Traffic marking tape" means preformed reflective film intended by the manufacturer for application to public streets, highways and other surfaces, including but not limited to curbs, berms, driveways, and parking lots.

"Traffic marking tape adhesive primer" means any primer intended by the manufacturer for application to surfaces prior to installation of traffic marking tape.

"Undersea-based weapons systems components" means the fabrication of parts, assembly of parts or completed units of any portion of a missile launching system used on undersea ships.

"Volatile organic compound" or "VOC" means volatile organic compound as defined in 9VAC5-10-20.

"Waterproof resorcinol glue" means a two-part resorcinol-resin-based adhesive designed for applications where the bond line must be resistant to conditions of continuous immersion in fresh or salt water.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-650. Standard for volatile organic compounds.

A. Except as provided in 9VAC5-45-630 and subsection H of this section, no owner or other person shall (i) sell, supply or offer for sale any adhesive, sealant, adhesive primer, or sealant primer manufactured on or after the applicable compliance date specified in 9VAC5-45-700, or (ii) manufacture for sale any adhesive, sealant, adhesive primer, or sealant primer on or after the date specified in 9VAC5-45-700, which contains volatile organic compounds in excess of the limits specified in Table 45-6A.

Table 45-6A

VOC Content Limits for Adhesives, Sealants, Adhesive Primers, Sealant Primers and Adhesives Applied to Particular Substrates

Adhesive, sealant, adhesive primer
or sealant primer category

VOC content limit
(grams VOC per liter*)

Adhesives

ABS welding

400

Ceramic tile installation

130

Computer diskette jacket manufacturing

850

Contact bond

250

Cove base installation

150

CPVC welding

490

Indoor floor covering installation

150

Metal to urethane/rubber molding or casting

850

Multipurpose construction

200

Nonmembrane roof installation/repair

300

Other plastic cement welding

510

Outdoor floor covering installation

250

PVC welding

510

Single-ply roof membrane installation/repair

250

Structural glazing

100

Thin metal laminating

780

Tire retread

100

Perimeter bonded sheet vinyl flooring installation

660

Waterproof resorcinol glue

170

Sheet-applied rubber installation

850

Sealants

Architectural

250

Marine deck

760

Nonmembrane roof installation/repair

300

Roadway

250

Single-ply roof membrane

450

Other

420

Adhesive Primers

Automotive glass

700

Plastic cement welding

650

Single-ply roof membrane

250

Traffic marking tape

150

Other

250

Sealant Primers

Non-porous architectural

250

Porous architectural

775

Marine deck

760

Other

750

Adhesives Applied to the Listed Substrate

Flexible vinyl

250

Fiberglass

200

Metal

30

Porous material

120

Rubber

250

Other substrates

250

*The VOC content is determined using the weight of volatile compounds, less water and exempt compounds, as specified in 9VAC5-45-710 of this article.

B. Except as provided in 9VAC5-45-630 B through E, in subsection G of this section, and in 9VAC5-45-660, no person shall use, or apply for compensation, any adhesive, sealant, adhesive primer or sealant primer in excess of the applicable VOC content limits specified in Table 45-6A.

C. The VOC content limits in Table 45-6A for adhesives applied to particular substrates shall apply as follows.

1. If an owner or other person uses an adhesive or sealant subject to a specific VOC content limit for such adhesive or sealant in Table 45-6A, such specific limit is applicable rather than an adhesive-to-substrate limit.

2. If an adhesive is used to bond dissimilar substrates together, the applicable substrate category with the highest VOC content shall be the limit for such use.

D. No owner or other person shall use a surface preparation or cleanup solvent containing VOC unless:

1. The VOC content of the surface preparation solvent is less than 70 grams per liter, except as provided for single-ply roofing in subdivision 2 of this subsection;

2. The composite vapor pressure, excluding water and exempt compounds, of the surface preparation solvent used for applying single-ply roofing does not exceed 45 mm Hg at 20°C;

3. The composite vapor pressure of the solvent used for the removal of adhesives, sealants, or adhesive or sealant primers from surfaces other than spray application equipment is less than 45 mm Hg at 20°C, except as provided in subdivision 4 of this subsection; and

4. For the removal of adhesives, sealants, adhesive primers or sealant primers from parts of spray application equipment, the removal is performed as follows:

a. In an enclosed cleaning system, or equivalent cleaning system as determined by the test method identified in 9VAC5-45-710 I;

b. Using a solvent with a VOC content less than or equal to 70 grams of VOC per liter of material; or

c. Parts containing dried adhesive may be soaked in a solvent if (i) the composite vapor pressure of the solvent, excluding water and exempt compounds, is less than or equal to 9.5 mm Hg at 20°C, and (ii) the parts and solvent are in a closed container that remains closed except when adding parts to or removing parts from the container.

E. Any owner or other person using adhesives, sealants, adhesive primers, sealant primers, surface preparation or clean-up solvents subject to the provisions of this article shall store or dispose of all absorbent materials, such as cloth or paper, that are moistened with adhesives, sealants, primers or solvents subject to the provisions of this article, in nonabsorbent containers that shall be closed except when placing materials in or removing materials from the container.

F. No owner or other person shall solicit the use, require the use or specify the application of any adhesive, sealant, adhesive primer, sealant primer, surface preparation or clean-up solvent if such use or application results in a violation of the provisions of this article. This prohibition shall apply to all written or oral contracts under which any adhesive, sealant, adhesive primer, sealant primer, surface preparation or clean-up solvent subject to this article is to be used at any location within the areas designated in 9VAC5-45-620 C.

G. The standards for single-ply roof membrane installation and repair adhesive, single-ply roof membrane sealant, and single-ply roof membrane adhesive primer in Table 45-6A shall only apply as follows:

1. In the Northern Virginia and Fredericksburg VOC Emissions Control Areas: during the ozone seasons, or portions thereof, between August 1, 2010, and September 30, 2011, and on and after January 1, 2012; and

2. In the Richmond VOC Emissions Control Area: during the ozone season, or portion thereof, between March 1, 2014, and September 30, 2014, and after January 1, 2015.

H. The provisions of subsection A of this section and the provisions of 9VAC5-45-730 E do not apply to the sale, supply, offer for sale, or manufacture for sale of single-ply roof membrane installation and repair adhesive, single-ply roof membrane sealant, and single-ply roof membrane adhesive primer prior to January 1, 2012.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-660. Control technology guidelines.

Any owner or other person using an adhesive, sealant, adhesive primer or sealant primer subject to this article may comply with the provisions of 9VAC5-45-650 B and D using add-on air pollution control equipment if such equipment meets the following requirements:

1. The VOC emissions from the use of all adhesives, sealants, adhesive primers, or sealant primers subject to this article are reduced by an overall capture and control efficiency of at least 85% by weight;

2. The combustion temperature is monitored continuously if a thermal incinerator is operated;

3. Inlet and exhaust gas temperatures are monitored continuously if a catalytic incinerator is operated;

4. Control device efficiency is monitored continuously if a carbon absorber or control device other than a thermal or catalytic incinerator is operated; and

5. Operation records sufficient to demonstrate compliance with the requirements of this section are maintained as required in 9VAC5-45-730 of this article.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-670. Standard for visible emissions.

The provisions of Article 1 (9VAC5-40-60 et seq.) of 9VAC5-40 (Emission Standards for Visible Emissions and Fugitive Dust/Emissions, Rule 4-1) apply.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-680. Administrative requirements.

Each manufacturer of an adhesive, sealant, adhesive primer, or sealant primer subject to the provisions of this article shall display the following information on the product container or label:

1. A statement of the manufacturer's recommendation regarding thinning, reducing, or mixing of the product, except that:

a. This requirement does not apply to the thinning of a product with water; and

b. If thinning of the product prior to use is not necessary, the recommendation must specify that the product is to be applied without thinning.

2. The maximum or the actual VOC content of the product as supplied, determined in accordance with 9VAC5-45-710, displayed in grams of VOC per liter of product.

3. The maximum or the actual VOC content of the product as applied (which includes the manufacturer's maximum recommendation for thinning), determined in accordance with 9VAC5-45-710, displayed in grams of VOC per liter of product.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-690. Compliance.

The provisions of 9VAC5-45-20 (Compliance) apply.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-700. Compliance schedules.

Affected owners or other persons shall comply with the provisions of this article as expeditiously as possible but in no case later than:

1. August 1, 2010, in the Northern Virginia and Fredericksburg VOC Emissions Control Areas; or

2. March 1, 2014, in the Richmond VOC Emissions Control Area.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010; amended, Virginia Register Volume 29, Issue 26, eff. October 1, 2013.

9VAC5-45-710. Test methods and procedures.

A. The provisions of 9VAC5-45-30 (Emission testing) apply.

B. Except as provided in subsections D, E and F of this section, the VOC and solids content of all nonaerosol adhesives, adhesive primers and cleanup solvents shall be determined using either Reference Method 24 or SCAQMD "Determination of Volatile Organic Compounds (VOC) In Various Materials" (see 9VAC5-20-21).

C. The organic content of exempt organic compounds shall be determined using ASTM "Standard Test Method for Determination of Dichloromethane and 1,1,1-Trichloroethane in Paints and Coatings by Direct Injection into a Gas Chromatograph" (see 9VAC5-20-21), as applicable.

D. The VOC content of any plastic welding cement adhesive or primer shall be determined using SCAQMD "Determination of Volatile Organic Compounds (VOC) in Materials Used for Pipes and Fittings" (see 9VAC5-20-21).

E. To determine if a diluent is a reactive diluent, the percentage of the reactive organic compound that becomes an integral part of the finished materials shall be determined using SCAQMD "Determination of Volatile Organic Compounds (VOC) in Materials Used for Pipes and Fittings" (see 9VAC5-20-21).

F. The composite vapor pressure of organic compounds in cleaning materials shall be determined by quantifying the amount of each compound in the blend using ASTM "Standard Practice for Packed Column Gas Chromatography" for organics and ASTM "Standard Test Method for Water Content of Coatings by Direct Injection Into a Gas Chromatograph" for water content (see 9VAC5-20-21), as applicable, and the following equation:

http://leg5.state.va.us/images/432985562712DEQGG_files/image001.gif

where:

Ppc = VOC composite partial pressure at 20ºC, in mm Hg.

Wi = Weight of the "i"th VOC compound, in grams, as determined by ASTM "Standard Practice for Packed Column Gas Chromatography" (see 9VAC5-20-21).

Ww = Weight of water, in grams as determined by ASTM "Standard Test Method for Water Content of Coatings by Direct Injection Into a Gas Chromatograph" (see 9VAC5-20-21).

We = Weight of the "i"th exempt compound, in grams, as determined by ASTM "Standard Practice for Packed Column Gas Chromatography" (see 9VAC5-20-21).

Mwi = Molecular weight of the "i"th VOC compound, in grams per g-mole, as given in chemical reference literature.

Mww = Molecular weight of water, 18 grams per g-mole.

Mwe = Molecular weight of the "i"th exempt compound, in grams per g-mole, as given in chemical reference literature.

Vpi = Vapor pressure of the "i"th VOC compound at 20ºC, in mm Hg, as determined by subsection G of this section.

G. The vapor pressure of each single component compound may be determined from ASTM "Standard Test Method for Vapor Pressure-Temperature Relationship and Initial Decomposition Temperature of Liquids by Isoteniscope " (see 9VAC5-20-21), from chemical reference literature or from additional sources acceptable to the board.

H. If air pollution control equipment is used to meet the requirements of 9VAC5-45-650, the owner or operator shall make the following determinations:

1. The measurement of capture efficiency shall be conducted and reported in accordance with the EPA Technical Document "Guidelines for Determining Capture Efficiency" (see 9VAC5-20-21).

2. The control efficiency shall be determined in accordance with Reference Methods 25, 25A, 25B or CARB Method 100 (see 9VAC5-20-21), as appropriate.

I. The active and passive solvent losses from spray gun cleaning systems shall be determined using SCAQMD's "General Test Method for Determining Solvent Losses from Spray Gun Cleaning Systems" (see 9VAC5-20-21). The test solvent for this determination shall be any lacquer thinner with a minimum vapor pressure of 105 mm of Hg at 20ºC, and the minimum test temperature shall be 15ºC.

J. For adhesives that do not contain reactive diluents, the VOC content of adhesive in grams per liter, less water and exempt compounds, shall be calculated according to the following equation:

http://leg5.state.va.us/images/432985562712DEQGG_files/image002.gif

where:

VOC = VOC content of adhesive, in grams per liter.

Ws = weight of volatile compounds, in grams.

Ww = weight of water, in grams.

We = weight of exempt compounds, in grams.

Vm = volume of material, in liters.

Vw = volume of water, in liters.

Ve = volume of exempt compounds, in liters.

K. For adhesives that contain reactive diluents, the VOC content of the adhesive is determined after curing. The VOC content of adhesive in grams per liter, less water and exempt compounds, shall be calculated according to the following equation:

http://leg5.state.va.us/images/432985562712DEQGG_files/image003.gif

where:

VOC = VOC content of adhesive, in grams per liter.

Wrs = weight of volatile compounds not consumed during curing, in grams.

Wrw = weight of water not consumed during curing, in grams.

Wre = weight of exempt compounds not consumed during curing, in grams.

Vrm = volume of material not consumed during curing, in liters.

Vrw = volume of water not consumed during curing, in liters.

Vre = volume of exempt compounds not consumed during curing, in liters.

L. The VOC content of materials, in grams per liter, shall be calculated according to the following equation:

http://leg5.state.va.us/images/432985562712DEQGG_files/image004.gif

where:

VOC = VOC content of materials, in grams per liter.

Ws = weight of volatile compounds, in grams.

Ww = weight of water, in grams.

We = weight of exempt compounds, in grams.

Vm = volume of material, in liters.

M. Percent VOC by weight shall be calculated according to the following equation:

http://leg5.state.va.us/images/432985562712DEQGG_files/image005.gif

where:

Wv = weight of VOC in grams.

W = weight of material in grams.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-720. Monitoring.

The provisions of 9VAC5-45-40 (Monitoring) apply.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-730. Notification, records and reporting.

A. The provisions of 9VAC5-45-50 (Notification, records and reporting) apply.

B. Each owner or other person subject to this article shall maintain records demonstrating compliance with this article, including, but not limited to, the following information:

1. A list of each adhesive, sealant, adhesive primer, sealant primer cleanup solvent and surface preparation solvent in use or in storage;

2. A data sheet or material list that provides the material name, manufacturer identification, and material application for each product on the list;

3. Catalysts, reducers or other components used in each product on the list and the mix ratio;

4. The VOC content of each product on the list, as supplied;

5. The final VOC content or vapor pressure of each product on the list, as applied; and

6. The monthly volume of each adhesive, sealant, adhesive primer, sealant primer, cleanup or surface preparation solvent used.

C. Any owner or other person who complies with the provisions of 9VAC5-45-650 B through the use of add-on air pollution control equipment shall record the key operating parameters for the control equipment, including, but not limited to, the following information:

1. The volume used per day of each adhesive, sealant, adhesive primer, sealant primer, or solvent that is subject to a VOC content limit in Table 45-6A and that exceeds such limit;

2. On a daily basis, the combustion temperature, inlet and exhaust gas temperatures or control device efficiency, as appropriate, pursuant to 9VAC5-45-660;

3. Daily hours of operation; and

4. All maintenance performed including the date and type of maintenance.

D. For adhesives, sealants, adhesive primers and sealant primers subject to the laboratory testing exemption pursuant to 9VAC5-45-630 B 1 of this article, the person conducting the testing shall make and maintain records of all such materials used, including, but not limited to (i) the product name, (ii) the product category of the material or type of application, and (iii) the VOC content of each material.

E. Any owner or other person that is subject to the provisions of this article and who sells an adhesive, sealant, adhesive primer or sealant primer that is subject to the provisions of this article but does not comply with the VOC content limits in Table 45-6A, shall make and keep records as follows:

1. The name of, and contact information for, each owner or other person to whom such noncompliant product is sold, and

2. The amount of each such noncompliant product that is sold to that owner or other person per calendar year.

F. Any owner of other person claiming an exemption for plaque laminating equipment pursuant to 9VAC5-45-630 C 4 shall keep records sufficient to demonstrate that the exemption applies. Such records shall include, but are not limited to, (i) the installation date of the plaque laminating equipment, (ii) monthly records of the types of laminate and substrate used and the VOC content of each adhesive used by the equipment during the month, and (iii) certification by a responsible official of the company that there is no compliant adhesive available for this purpose.

G. All records made to determine compliance with the provisions of this article shall be maintained for three years from the date such record is created and shall be made available to the board within 90 days of a request.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-740. Registration.

The provisions of 9VAC5-20-160 (Registration) apply, except that the following provisions also apply:

1. Any owner or other person subject to the provisions of this article who complies with the provisions of 9VAC5-45-650 B through the use of add-on air pollution control equipment shall register such operations with the board and update such registration information.

2. The information required for registration shall be determined by the board and shall be provided in the manner specified by the board. Registration information shall include, but is not limited to, (i) contact information for the owner or other person (name, mailing address and phone number) and (ii) the type of add-on control equipment used to comply with the provisions of 9VAC5-45-650 B. All registration information and updates to such registration information submitted to the board are subject to the provisions of 9VAC5-20-230 (Certification of documents).

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-750. Facility and control equipment maintenance or malfunction.

The provisions of 9VAC5-20-180 (Facility and control equipment maintenance or malfunction) apply.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

Article 7
Emission Standards For Asphalt Paving Operations

9VAC5-45-760. Applicability.

A. The provisions of this article apply to any owner or other person who manufactures, mixes, stores, uses, or applies any liquefied asphalt for paving operations.

B. The provisions of this article apply only to owners and other persons in volatile organic compound emissions control areas designated in 9VAC5-20-206.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-770. Definitions.

A. For the purpose of applying this article in the context of Regulations for the Control and Abatement of Air Pollution and related uses, the words or terms shall have the meanings given them in subsection C of this section.

B. As used in this article, all terms not defined herein shall have the meanings given them in 9VAC5-10 (General Definitions), unless otherwise required by context.

C. Terms defined.

"Asphalt" means a dark-brown to black cementitious material (solid, semisolid, or liquid in consistency) in which the predominating constituents are bitumens that occur in nature as such or that are obtained as residue in refining petroleum.

"Cutback asphalt" means asphalt cement that has been liquefied by blending with petroleum solvents (diluents). Upon exposure to atmospheric conditions the diluents evaporate, leaving the asphalt cement to perform its function.

"Emulsified asphalt" means an emulsion of asphalt cement and water that contains a small amount of an emulsifying agent; a heterogeneous system containing two normally immiscible phases (asphalt and water) in which the water forms the continuous phase of the emulsion, and minute globules of asphalt form the discontinuous phase.

"Paving operation" means the process of covering an area with stone, concrete, asphalt or other material in order to construct or maintain a firm, level surface for travel, access, or parking. Paving operations do not include the use of coatings to seal residential driveways.

"Penetrating prime coat" means an application of low-viscosity liquid asphalt to an absorbent surface. It is used to prepare an untreated base for an asphalt surface. The prime penetrates the base and fills the surface voids, hardens the top, and helps bind it to the overlying asphalt course. It also reduces the necessity of maintaining an untreated base course prior to placing the asphalt pavement.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-780. Standard for volatile organic compounds.

A. No owner or other person shall cause or permit the manufacture, mixing, storage, use, or application of liquefied asphalt for paving operations unless such asphalt is of the emulsified asphalt type.

B. Regardless of the provisions of subsection A of this section, the manufacture, mixing, storage, use, or application of cutback asphalt is permitted under any of the following circumstances:

1. When stockpile storage greater than one month is necessary;

2. When use or application during the months of November through March is necessary;

3. When use or application as a penetrating prime coat or tack coat is necessary; or

4. When the user can demonstrate that there are no volatile organic compound emissions from the asphalt under conditions of normal use.

C. The provisions of subsection A of this section do not preclude the manufacture, mixing, storage, use, or application of heated asphalt cement as a component in asphaltic concrete mixing or for priming in surface treatment.

D. Notwithstanding the provisions of subsection A of this section, the manufacture, mixing, storage, use, or application of emulsified asphalt containing volatile organic compounds is permitted provided the annual average of volatile organic compound content for all emulsified asphalts used does not exceed 6.0% of volatile organic compounds by volume.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-790. Standard for visible emissions.

The provisions of Article 1 (9VAC5-40-60 et seq.) of Part II of 9VAC5-40 (Existing Stationary Sources) apply.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-800. Standard for fugitive dust/emissions.

The provisions of Article 1 (9VAC5-40-60 et seq.) of Part II of 9VAC5-40 (Existing Stationary Sources) apply.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-810. Standard for odor.

The provisions of Article 2 (9VAC5-40-130 et seq.) of Part II of 9VAC5-40 (Existing Stationary Sources) apply.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-820. Compliance.

The provisions of 9VAC5-45-20 (Compliance) apply.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-830. Test methods and procedures.

The provisions of 9VAC5-45-30 (Emission testing) apply.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-840. Monitoring.

The provisions of 9VAC5-45-40 (Monitoring) do not apply.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.

9VAC5-45-850. Notification, records and reporting.

The provisions of 9VAC5-45-50 (Notification, records and reporting) apply.

Statutory Authority

§ 10.1-1308 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 26, Issue 12, eff. March 17, 2010.



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