Section 20-736. CONSUMER PRODUCTS – INNOVATIVE PRODUCTS EXEMPTION

 

736.1Any manufacturer claiming an exemption from the Table of Standards in § 720.1 based on a CARB Innovative Products exemption under the Innovative Products provisions in Subchapter 8.5, Article 2, § 94511, or Subchapter 8.5, Article 1, § 94503.5 of Title 17 of the California Code of Regulations, must submit to the Department a copy of the CARB Innovative Product exemption decision including the executive order and all conditions established by CARB applicable to the exemption.

 

736.2Manufacturers of consumer products that have been granted an Innovative Products exemption under the Innovative Products provisions in Subchapter 8.5, Article 2, § 94511, or Subchapter 8.5, Article 1, § 94503.5 of Title 17 of the California Code of Regulations based on California specific data, or that have not been granted an exemption by CARB, may apply for an Innovative Products exemption from the District of Columbia if the product meets the following criteria:

 

(a)The 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:

 

(1)The VOC emissions from a representative consumer product which complies with the VOC limits specified in the Table of Standards in § 720.1; or

 

(2)The calculated VOC emissions from a non-complying representative product, if the product had been reformulated to comply with the VOC limits specified in the Table of Standards in § 720.1; and

 

(3)VOC emissions shall be calculated using the following equation:

 

ER  =  ENC  x  VOCSTD ¸ VOCNC

 

  where:

 

ER = The VOC emissions from the non-complying representative product, had it been reformulated;

 

ENC =The VOC emissions from the non-complying representative product in its current formulation;

 

VOCSTD  =The VOC limit specified in the Table of Standards in § 720.1; and

 

VOCNC   =The VOC content of the non-complying product in its current formulation;

 

(b)If a manufacturer demonstrates that the equation in paragraph (a) of this section 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 Department;

 

(c)For the purposes of this section, representative consumer product means a consumer product that meets all of the following criteria:

 

(1)The representative product shall be subject to the same VOC limit in the Table of Standards in § 720.1 as the innovative product;

 

(2)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

 

(3) The representative product shall have at least 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;

 

(d)To apply for an innovative products exemption under this section, a manufacturer shall submit a written application to the Department, which includes:

 

(1)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; and

 

(2)Any information necessary to enable the Department to establish enforceable conditions for granting the exemption including the VOC content for the innovative product and test methods for determining the VOC content;

 

(e)The Department shall comply with the following process in responding to applications for exemptions:

 

(1)All information submitted by a manufacturer pursuant to paragraph (d) shall be handled in accordance with the District of Columbia confidentiality requirements in 20 DCMR § 106;

 

(2)Within thirty (30) days of receipt of the exemption application the Department shall determine whether an application is complete;

 

(3)Within ninety (90) days after an application has been deemed complete, the Department shall determine whether, under what conditions, and to what extent, an exemption from the requirements of §720 will be permitted;

 

(A)The applicant and the Department may mutually agree to a longer time period for reaching a decision; and

 

(B)Additional supporting documentation may be submitted by the applicant before a decision is reached; 

 

(4)The Department shall notify the applicant of the decision in writing and specify such terms and conditions that are necessary to ensure that emissions from the product will meet the emissions reductions specified in subparagraph (a)(1), and that such emissions reductions can be enforced; and

 

(5)In granting an exemption for a product, the Department shall establish conditions that are enforceable:

 

(A)These conditions shall include the VOC content of the innovative product, dispensing rates, application rates, and any other parameters determined by the Department to be necessary;

 

(B)The Department shall also specify the test methods for determining conformance to the conditions established; and

 

(C)The test methods shall include criteria for reproducibility, accuracy, sampling, and laboratory procedures;

 

(f)For any product for which an exemption has been granted pursuant to this section, the manufacturer shall notify the Department in writing within thirty (30) days of any change in the product formulation or recommended product usage directions, and shall also notify the Department within thirty (30) days if the manufacturer learns of any information which would alter the emissions estimates submitted to the Department in support of the exemption application;

 

(g) If the VOC limits specified in the Table of Standards in § 720.1 are lowered for a product category through any subsequent rulemaking, all innovative product exemptions granted for products in the product category shall have no effect as of the effective date of the modified VOC standard, except for 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 Department at least sixty (60) days before the effective date of such limits; and

 

(h) If the Department believes that a consumer product for which an exemption has been granted no longer meets the criteria for an innovative product specified in this section, the Department may modify or revoke the exemption as necessary to ensure that the product will meet these criteria. The Department shall not modify or revoke an exemption without first affording the applicant an opportunity for a public hearing held in accordance with the District of Columbia Administrative Procedures Act, D.C. Official Code §§ 2-501, et seq.(2006 Repl.).

 

authority

The Director of the District Department of the Environment (DDOE or Department), pursuant to the authority set forth in sections 5 and 6(b) of the District of Columbia Air Pollution Control Act of 1984, as amended, effective March 15, 1985 (D.C. Law 5-165 (DCAPC); D.C. Official Code §§ 8-101.05 and 8-101.06(b)(2008 Repl.)), section 107(4) of the District Department of the Environment Establishment Act of 2005, effective February 15, 2006 (D.C. Law 16-51; D.C. Official Code § 8-151.07(4)(2008 Repl.)), Mayor's Order 98-44, dated April 10, 1998, and Mayor’s Order 2006-61, dated June 14, 2006.

source

Final Rulemaking published at 51 DCR 3879 (April 16, 2004); as amended by Final Rulemaking published at 51 DCR 10781 (November 26, 2004); as amended by Notice of Final Rulemaking published at 58 DCR 11286, 11345 (December 30, 2011).

EditorNote

Section 736 is formerly entitled "Portable Fuel Containers and Spouts - Performance Standards." The Notice of Final Rulemaking published at 58 DCR 11286 (December 30, 2011) repealed and replaced it with "Consumer Products - Innovative Products Exemption."