Regulatory Issues

Written on: June 1, 2023 by Doug Raymond

On April 18, the Air Quality Division of the Michigan Dept. of Environment, Great Lakes & Energy finally promulgated its Final Rule for both Consumer Products and Architectural Coatings. Having gone through the legislative process, this ruling is now complete.

Please remember that Michigan had placed a Jan. 1, 2023, compliance date on both regulations. Until the rule was final, the State could not enforce this Jan. 1 rule date. Michigan staff has stated during a public webinar that it does not intend to enforce the rule. To be cautious, all products produced after April 18, 2023, should be compliant with the new Ozone Transport Commission (OTC) Model Rules. Product produced after April 18 should be made compliant with the OTC Consumer Products Model Rule IV and OTC Architectural Model Rule II.

Even with Michigan’s staff statement of no enforcement, companies should strive to come into compliance as soon as they can, even though there is an unlimited sell-through. If a product is picked up a year or 18 months from now, and was produced after April 18, 2023, the Michigan Air Quality Division could enforce on that product. If that happened, a company would then need to fight that enforcement action. Chances are good that the company would win, but company resources would have to be spent on that fight. In another scenario, Michigan Air Quality Division staff could turn over a year from now and new staff may have no knowledge of these statements of no enforcement. It is better to be safe than sorry.

On April 21, 2023, the OTC held a virtual stakeholders meeting. Francis Seitz from the New Jersey Dept. of Environmental Protection (DEP), who leads the OTC Stationery & Area Sources Committee, presented Committee updates. The good news is that there is no movement by OTC to develop any new Model Rules for Consumer Products or Architectural Coatings.

Seitz did mention that New Jersey will be updating its Consumer Products Rule to OTC Model Rule IV, likely this year. Therefore, we need to monitor this process to ensure consistency with the OTC Model Rule. While we dislike changes in Rules, it would be nice if all States (except California) would settle on one OTC Model Rule; this would make compliance (and life) much easier.

Other OTC States
Ohio’s OTC Rule change comes into effect on July 1, 2023, so all product produced after July 1 for sale in Ohio needs to be in compliance with OTC Model Rule IV. All products produced before this date, and properly date coded, have an unlimited sell-through. Only one month to go!

Colorado has set up a contingency Consumer Products Rule using a variation of OTC Model V that only becomes effective if the State fails to comply with the Air Quality standards. We will not know if this contingency measure is needed for at least two years.

Virginia is proposing to add a contingency Consumer Products Rule using OTC Model Rule IV. To reiterate, this is only being proposed.

New Jersey, as previously explained, will likely move from OTC Model Rule II to OTC Model Rule IV this year. The timing is currently unknown.

In Nevada, only Clark County (Las Vegas) is considering moving to OTC Model Rule IV. Clark County’s first draft left a lot to be desired, as it proposed a 30-day sell-through. Luckily, they are in the process of re-writing that proposal; we will need to wait and see the outcome.

Just a reminder that the Canadian Consumer Products Rule becomes effective on Jan. 1, 2024—therefore, only seven months to go. SPRAY