Health, Safety, and Environmental Regulatory

HEALTH, SAFETY, AND ENVIRONMENTAL REGULATORY CONSIDERATIONS FOR PAINT PRODUCT CONTENT AND COMMUNICATION REQUIREMENTS

A WHITE PAPER

I. Introduction II. Federal Regulations a. Occupational Health and Safety Administration i. Hazard Communication Standard 1. Material Safety Data Sheets 2. Labeling b. Environmental Protection Agency i. Federal Insecticide, Fungicide, and Rodenticide Act 1. Registration 2. Labeling ii. National Volatile Organic Compound (VOC) Emission Standards 1. Architectural and Industrial Maintenance Regulations a. Content Limits b. Labeling iii. Resource Conservation and Recovery Act (RCRA) 1. Waste Handling Regulations c. Consumer Product Safety Commission i. Consumer Product Safety Act 1. Content Limits ii. Federal Hazardous Substances Act 1. Labeling d. Department of Transportation i. Hazardous Materials Regulations 1. Marking and Packaging III. State and Local Regulations a. Right-to-Know Laws i. Pennsylvania ii. New Jersey iii. California b. Air Quality Regulations i. California ii. Ozone Transport Commission States iii. Lake Michigan Air Directors Consortium c. Waste Handling Regulations d. Fire Code Regulations e. Occupational Safety and Health Regulations IV. International Regulations a. Canada b. Mexico V. Conclusion\Recommendation VI. Attachments

PPSI HSE Draft #2 1 5/6/2018 a. Regulatory Workgroup Listing of State Rules And Regulations b. Others?

PPSI HSE Draft #2 2 5/6/2018 I. Introduction

With respect to any specific finished product, the manufacturer or marketer has the ultimate responsibility for accurately communicating product content based on known hazards. In addition, manufacturers are responsible for the proper precautionary communication of the product composition as a whole and with not only foreseeable hazards associated with the handling and use of their product, but the foreseeable misuse of such as well. There are numerous regulations governing the content of paint and its product communication requirements, both from an occupational health and safety standpoint as well as a consumer and environmental health standpoint. While most of these regulations are at the federal level, there are also various state, local, and international regulations that impact the manufacture and sale of paint.

It is of paramount importance, and often a daunting task, to ensure compliance with these regulations for nascent paint manufacturing, where raw materials are readily identified. It becomes even more difficult in the manufacturer of recycled content paint using post- consumer paint as one of the raw materials, as it has been out of the manufacturer’s control. In order to identify regulatory barriers to the manufacture of recycled content paint, and possible solutions to these barriers, this White Paper outlines the various requirements under health, safety and environmental regulations impacting the content and communication standards for paint. If identified barriers can be reduced, incentives for recycling efforts can be increased.

This White Paper outlines the general federal requirements for paint product content and communication standards and highlights additional state, local and international regulations that impact the manufacture and sale of paint. This White Paper is not intended to be relied upon for regulatory compliance with these or other regulatory requirements. The National Paint and Coatings Association, Inc. and the Product Stewardship Institute, on behalf of the Paint Product Stewardship Initiative (PPSI), make no warranty, representation, or guarantee as to the correctness or sufficiency of any information or recommendation herein and the Association assumes no responsibility in connection therewith; nor can it be assumed that all necessary regulatory requirements are contained in this White Paper, or that other or additional regulatory requirements may not be required or desirable because of particular or exceptional conditions or circumstances, or because of applicable federal, state, or local law.

PPSI HSE Draft #2 3 5/6/2018 II. Federal Regulations

Product content and communication requirements are mandatory under the authority of various federal governmental agencies, such as the Environmental Protection Agency (EPA), the Occupational Safety and Health Administration (OSHA) and the Consumer Product Safety Commission (CPSC). Generally, such legal requirements are directed toward specific product lines, markets, ingredients, work practices, or constituencies. This combination of various governmental requirements creates a variety of factors to be considered in the manufacturer of paint and the product information that must be conveyed to the end-user.

a. Occupational Safety and Health Administration

OSHA’s mission is to assure the safety and health of America's workers by setting and enforcing standards; providing training, outreach, and education; establishing partnerships; and encouraging continual improvement in workplace safety and health. OSHA applies its Hazard Communication Standards to paint products to ensure workers are informed of workplace hazards in the manufacturer and utilization of such. While OSHA regulations pertain to employers’ requirements with respect to employees, not to consumers, employee is defined broadly and would cover painting contractors as well as workers in retail paint stores. More information on these standards can be obtained at Appendix E to the Regulations (16 CFR 1900.1200), entitled “Guidelines for Employer Compliance” at http://www.osha.gov/pls/oshaweb/owadisp.show_document? p_table=STANDARDS&p_id=10104.

i. Hazard Communication Standard

Title 29 of the Code of Federal Regulations contain the OSHA Hazard Communication Standards at Part 1910, Section 1200. The purpose of these regulations is to ensure that the hazards of all chemicals produced or imported are evaluated, and that information concerning their hazards is transmitted to employers and employees. This is accomplished by various mechanisms, which include container labeling and Material Safety Data Sheets (MSDS), as well as employee training on the chemicals used and hazards present in the workplace.

Chemical manufacturers or importers must assess the hazards of chemicals which they produce or import, and all employers must provide information to their employees about the hazardous chemicals to which they are exposed and appropriate protective measures. This applies to any chemical which is known to be present in the workplace in such a manner that employees may be exposed under normal conditions of use or in a foreseeable emergency. “Chemical manufacturer” is broadly defined as an employer with a workplace where chemicals are produced for use or distribution.

Each manufacturer must determine the hazards of their products using a list of sources provided by the standard, including the American Conference of Governmental Industrial Hygienists, National Toxicology Program, and the International Agency for Research on Cancer. The standard permits manufacturers to rely on the hazard determination information developed by their suppliers. For mixtures, such as paint, if the hazard determination has not

PPSI HSE Draft #2 4 5/6/2018 been made for the mixture as a whole, it is assumed that the mixture presents the same hazards as the individual components that comprise 0.1 percent or greater of carcinogenic components and 1 percent or greater of all other components in the mixture.

1. Material Safety Data Sheets

One mechanism for communication from suppliers to manufacturers and manufacturers to employees is the MSDS. Chemical manufacturers and suppliers must obtain or develop an MSDS for each hazardous chemical they produce or import. OSHA requires manufacturers to supply MSDS to all downstream commercial users. Employers must have a MSDS in the workplace for each hazardous chemical that they use. Generally, there is not a set list of what constitutes a “hazardous chemical,” rather, it is largely situation dependent. For mixtures, the MSDS must contain the identity of the product used on the label; the chemical and common name of all ingredients which have been determined to be health hazards and which comprise 0.1 percent of carcinogens and 1 percent or greater of all other components; the chemical and common name of all ingredients which have been determined to be a health hazard at less than the 0.1 and 1 percent threshold if there is evidence that the ingredient could be released from the mixture in concentrations greater than established exposure limits; and the chemical and common name of all ingredients which have been determined to present a physical hazard.

In addition, the MSDS must list the physical and chemical characteristics of the hazardous chemicals (such as vapor pressure, flash point); the physical hazards of the hazardous chemical, including the potential for fire, explosion, and reactivity; the health hazards of the hazardous chemical, including signs and symptoms of exposure, and any medical conditions which are generally recognized as being aggravated by exposure to the chemical; the primary routes of entry; the permissible exposure limits; whether or not the chemical is carcinogenic; any generally applicable precautions for safe handling and use, including appropriate hygienic practices, protective measures and procedures for clean-up of spills; any generally applicable control measures, such as appropriate engineering controls, work practices or personal protective equipment; emergency and first aid procedures; the date of preparation of the MSDS or the last change to it; and, the main address and telephone number of the chemical manufacturer, importer, employer or other responsible party.

2. Labeling

The chemical manufacturer, importer, or distributor must ensure that each container of hazardous chemicals leaving the workplace is labeled, tagged or marked with the identity of the hazardous chemicals; appropriate hazard warnings; and the name and address of the chemical manufacturer, importer, or other responsible party. The employer must ensure that each container of hazardous chemicals in the workplace is labeled, tagged or marked with the identity of the hazardous chemicals and appropriate hazard warnings.

Appropriate hazard warning is defined as a brief statement of the hazardous effects of the chemical, such as “flammable,” or “causes lung damage.” Labels, however, frequently

PPSI HSE Draft #2 5 5/6/2018 contain other information such as precautionary measures (“do not use near open flame”), which are voluntarily and not required by the OSHA Hazard Communication standards.

b. Environmental Protection Agency

The mission of the EPA is to protect human health and the environment. The Agency is tasked with development and enforcement a whole host of environmental laws enacted by Congress. The EPA classifies some paints as pesticides and as such regulates the content and communication of these products through the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The EPA also regulates paint through the federal Architectural Industrial Maintenance (AIM) rule, under the Clean Air Act (CAA), which imposes restrictions on the amount of Volatile Organic Compounds (VOC) allowed in paint products, by category, and requires specific labeling requirements of such. In addition, EPA regulates the handling and transportation of waste materials, under the Resource Conservation and Recovery Act (RCRA).

i. Federal Insecticide, Fungicide, and Rodenticide Act

EPA as well as the states register or license pesticides for use in the United States. EPA receives its authority to register pesticides under FIFRA. States are authorized to regulate pesticides under FIFRA and under state pesticide laws. Paints and other formulated products which are treated with a fungicide designed to protect the substrate (on which it is applied) and allow claims on labels and marketing literature for such protection require registration of the paint with the EPA. Examples of paint products that are subject to FIFRA registration include wood preservatives and anti-mildew paint additives. Paints and other formulated products which are treated with a fungicide to protect the dried coating itself and which are not intended for protection of the painted surface are not considered pesticides; these products fall under the “treated articles” exemption in the FIFRA regulations. Both types of products, however, require specific labeling requirements for product content. More information on FIFRA requirements can be obtained at http://www.epa.gov/oppad001/.

1. Registration

Federal law requires that before selling or distributing a pesticide in the United States, a person or company must obtain registration, or license, from EPA. Before registering a new pesticide or new use for a registered pesticide, EPA must first ensure that the pesticide, when used according to label directions, can be used with a reasonable certainty of no harm to human health and without posing unreasonable risks to the environment. To make such determinations, EPA requires more than 100 different scientific studies and tests from applicants. These tests evaluate whether a pesticide has the potential to cause adverse effects on humans, wildlife, fish, and plants, including endangered species and non-target organisms, as well as possible contamination of surface water or ground water from leaching, runoff, and spray drift. Potential human risks range from short-term toxicity to long-term effects such as cancer and reproductive system disorders. EPA also examines the ingredients of the pesticide; the particular site or crop on which it is to be used; the amount, frequency, and timing of its use; and storage and disposal practices. In evaluating a pesticide registration

PPSI HSE Draft #2 6 5/6/2018 application, EPA assesses a wide variety of potential human health and environmental effects associated with use of the product. The producer of the pesticide must provide the data for the evaluation from the various tests done according to EPA guidelines.

2. Labeling

EPA also must approve the language that appears on each pesticide label. A pesticide product can only be used legally according to the directions on the labeling accompanying it at the time of sale. The overall intent of the label is to provide clear directions for effective product performance while minimizing risks to human health and the environment. It is a violation of federal law to use a pesticide in a manner inconsistent with its labeling. The courts consider a label to be a legal document. The label must contain the name, brand, or trademark under which the product is sold; name and address of the producers, registrant, or person for whom produced; net contents; product registration number; producing establishment number; an ingredient statement; warning or precautionary statements; directions for use; and use classifications. Example labels can be found in Chapter 3 of EPA’s “Label Review Manual” at http://www.epa.gov/oppfead1/labeling/lrm/labelreviewmanual.pdf.

Paint and other formulated products which qualify for the treated articles exemption do not require registration, but must adhere to strict labeling guidelines in order to ensure the exemption is maintained. EPA has developed a representative set of statements designed to clarify which labeling claims are eligible for the treated articles exemption. Generally, public health claims, either explicit or implicit, that express protection beyond the treated article or product itself will render a product ineligible for the treated articles exemption. In addition, EPA regards trademarked product names of treated articles or substances and a product’s packaging and advertising literature as potential sources of public health claims that would render the product ineligible for the exemption. EPA encourages requests for written opinions with regard to antimicrobial claims when there are questions about exemption applicability.

ii. National Volatile Organic Compound Emission Standards

EPA’s AIM Rule applies to manufacturers and importers of architectural and industrial maintenance coatings that are manufactured after September 13, 1999. This rule limits the amount of VOCs that manufacturers and importers of architectural coatings can put into their products. Under the AIM Rule, architectural coatings include many categories such as interior and exterior paints, traffic markings, sign paints, as well as industrial maintenance coatings. In order to promote reuse while accounting for coatings manufactured prior to the rule’s effective date, if a coating is collected and redistributed in a paint exchange, then it is exempt from the rule. EPA defines a paint exchange as where architectural coating consumers drop off and pick up useable post-consumer architectural coatings to reduce hazardous waste. “Post-consumer” coating is defined as one that has been purchased by or distributed to a consumer but not applied, and reenters the marketplace. More information on the National AIM Rule can be found at http://www.epa.gov/ttn/atw/183e/aim/aimpg.html.

PPSI HSE Draft #2 7 5/6/2018 1. Content Limits

Manufacturers and importers of any of the 61 categories of architectural coatings are subject to the AIM Rule and must ensure that the VOC content of the coating does not exceed the applicable regulatory limit for that coating. Each coating must be classified by the manufacturer or importer under one of the specific categories; if the coating does not meet any of the category definitions, then it must be classified as either a flat or non-flat coating (depending on its gloss level).

2. Labeling

Each manufacturer and importer of any architectural coating subject to the provisions of the AIM rule must calculate the specific VOC content of the product and supply this information on the label or lid of the container in which the coating is sold or distributed. In addition, 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. The VOC content of the coating can be indicated by the actual content or the not to exceed limit as required for the coating category.

Again, in order to promote reuse and to account for recycling using older paints as well as mixes of paints, manufacturers and importers of recycled coatings are given the compliance option of calculating an adjusted-VOC content for these products. Manufacturers and importers of recycled architectural coatings are defined as those that collect, reprocess, and market coatings that contain a percentage of post-consumer coating. The adjusted-VOC content provides regulated entities some credit for the amount of post-consumer material contained in the coating. The adjusted-VOC content is determined by multiplying the percentage of post-consumer content of the coating by the VOC content of the recycled coating, which is then subtracted from the VOC content of the end product. An explicit equation for the calculation is given in the rule. One result of the equation is that it is easier for 100% post-consumer paint to meet the rule than any other percentage of post-consumer paint because it is always going to result in a zero using the formula. For paints with less than 100% recycled content, the actual VOC content would need to be determined, then the adjusted VOC content would be a proportional reduction, e.g. 50% recycled content would yield an adjusted VOC content that is 50% of the actual, 90% recycled content would yield an adjusted VOC content that is 10% of the actual, etc.

For recycled coatings, the manufacturer or importer must keep records of the volume of coatings received for recycling, the volume of coatings received that is unusable, the volume of virgin coatings used with recycled coatings, and the volume of final recycled coatings manufactured or imported. In addition, manufacturers and importers of recycled coatings must keep records of the calculation of adjusted-VOC contents. Lastly, each manufacturer and importer of any recycled coating who calculates the VOC content using the adjusted- VOC calculation must include the following statement indicating the post-consumer coating content on the label or lid of the container in which the coating is sold or distributed: “CONTAINS NOT LESS THAN X PERCENT BY VOLUME POST-CONSUMER COATING,” where “X” is replaced by the percent by volume of post-consumer architectural coating.

PPSI HSE Draft #2 8 5/6/2018 iii. Resource Conservation and Recovery Act

The Resource Conservation and Recovery Act (RCRA) was enacted in 1976 to address the large volumes of municipal and industrial solid waste generated nationwide. RCRA governs the management of solid and hazardous wastes. The term solid waste is defined broadly and includes not only traditional non-hazardous solid wastes, such as municipal garbage, but also hazardous wastes as well as special wastes, such as household hazardous wastes and wastes generated by a special subset of businesses called Conditionally Exempt Small Quantity Generators (CESQG). Simply put, “hazardous waste” is always a subset of “solid waste.” The regulations specifically exclude “household waste” (from single and multiple dwellings, hotels, motels, and other residential sources)…” from the definition of hazardous waste. Therefore, at the Federal level, waste from homes cannot be considered to be a “hazardous waste.” However, certain household waste, such as paint, is generally managed as hazardous waste when collected or managed by another entity such as a waste disposal company, a municipality, or other institution. More information on RCRA can be found through EPA’s RCRA Orientation Manual at http://www.epa.gov/epaoswer/general/orientat/.

1. Waste Handling Regulations

As stated above, RCRA’s waste handling provisions turn on whether the waste is defined as a solid waste or a hazardous waste. The solid waste provisions of RCRA pertain to most household and business wastes collected and disposed of in municipal solid waste landfills. RCRA provisions set specific criteria for these landfills. The hazardous waste provisions of RCRA include standards for facilities that generate, transport, treat, store, or dispose of hazardous waste. The standards include requirements for general facility management and specific hazardous waste management units as well as manifest requirements for the transport of hazardous waste and restrictions on the ultimate disposal of hazardous wastes. Requirements for generators vary depending on the amount of waste generated in a calendar month. Requirements for transporters are covered under Section II, Subsection d. – Department of Transportation of this White Paper.

The hazardous waste identification criteria in RCRA describe how to determine whether a waste is a solid and hazardous waste. How a waste is regulated under RCRA when it is recycled depends on what type of waste it is, its origin, and what type of recycling occurs. RCRA attempts to tailor the level of regulation to reflect the actual hazard of the recycling activity. In this approach, recycling standards range from full regulation (permitted treatment, storage, and disposal facility) to specialized standards to exemptions from regulation. Handlers of hazardous waste slated for recycling must determine what type of regulation they fall under based on the recycling activity being conducted and the type of material being managed.

Latex paint is generally classified as non-hazardous under RCRA, however, solvent-based paint is regulated as hazardous. As stated above, household-generated paint waste as well as paint waste generated by CESQG, is exempted under RCRA, even if consolidated at the time of collection. Non-household generators of other solid and hazardous wastes as well as

PPSI HSE Draft #2 9 5/6/2018 recyclers of those wastes must still evaluate whether collection and processing of additional waste from these sources changes their own status as a Generator under RCRA, potentially imposing additional requirements under these regulations. In addition, older latex paint may contain toxic constituents, such as lead and mercury, which may change its non-hazardous classification to hazardous. Lastly, as outlined below, some States treat latex paint as hazardous, while others do not recognize some or all of the household and CESQG exemptions.

c. Consumer Product Safety Commission

The Consumer Product Safety Commission (CPSC) is charged with protecting the public from unreasonable risks of serious injury or death from more than 15,000 types of consumer products under the agency's jurisdiction. CPSC is an Independent Federal Regulatory Agency created in 1972 by Congress under the Consumer Product Safety Act (CPSA). The Federal Hazardous Substance Act requires cautionary labeling on consumer products and also grants CPSC the regulatory authority to ban a hazardous substance if it determines that the product is so hazardous that the cautionary labeling required by the Act is inadequate to protect the public. More information on CPSC’s regulations can be obtained from http://www.cpsc.gov/businfo/acts.html.

i. Consumer Product Safety Act

The CPSA establishes the CPSC, defines its basic authority, and provides that when the CPSC finds an unreasonable risk of injury associated with a consumer product it can develop a standard to reduce or eliminate that risk. The CPSA also provides the authority to ban a product if there is no feasible standard, and it gives CPSC authority to pursue recalls for products that present a substantial product hazard.

1. Content Limits

Manufacturer of consumer paint and coatings products containing lead content in excess of 0.06% percent of the weight of the total nonvolatile content of the paint or the weight of the dried paint film was banned effective February 27, 1978.

ii. Federal Hazardous Substances Act

The FHSA requires that certain hazardous household products ("hazardous substances") bear cautionary labeling to alert consumers to the potential hazards that those products present and to inform them of the measures they need to protect themselves from those hazards. Any product that is toxic, corrosive, flammable or combustible, an irritant, a strong sensitizer, or that generates pressure through decomposition, heat, or other means requires labeling, if the product may cause substantial personal injury or substantial illness during or as a proximate result of any customary or reasonable foreseeable handling or use, including reasonable foreseeable ingestion by children.

PPSI HSE Draft #2 10 5/6/2018 1. Labeling

The FHSA requires that hazardous substances bear certain cautionary statements on their labels, including signal words; affirmative statements of the principal hazard(s) associated with a hazardous substance; the common or usual name, or chemical name, of the hazardous substance; the name and place of business of the manufacturer, packer, distributor, or seller; statements of precautionary measures to follow; instructions, when appropriate, for special handling and storage; the statement “Keep Out of the Reach of Children” or its practical equivalent or instructions for the protection of children from the hazard; and, when appropriate, first-aid instructions. These statements must be located prominently and must be in English in conspicuous and legible type as specified by the FHSA.

Thus, manufacturers of paints must assess their products for the above stated characteristics and label accordingly. Signal words, for example, range from “DANGER,” “WARNING,” or “CAUTION” depending on the outcome of the product’s assessment. Statements of principle hazards also depend on the product’s assessment and may include, “harmful or fatal if swallowed,” “vapor harmful,” “flammable,” and “skin and eye irritant,” depending on the individual constituents present in the product. In addition, some substances, such as products containing more than 10% or more by weight of toluene, xylene or petroleum distillates, require additional special labeling by CPSC.

d. Department of Transportation

The Department of Transportation’s (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) has public responsibilities for safe and secure movement of hazardous materials to industry and consumers by all transportation modes, including the nation's pipelines. The Office of Hazardous Materials Safety (OHM), within the PHMSA, formulates, issues and revises Hazardous Materials Regulations (HMR) under the Federal Hazardous Materials Transportation Law. The HMR cover hazardous materials definitions and classifications, hazard communications, shipper and carrier operations, training and security requirements, and packaging and container specifications. More information on DOT’s HMR can be found at http://hazmat.dot.gov/.

i. Hazardous Materials Regulations

The HMR apply to interstate, intrastate and foreign commerce. Therefore, HMR apply to transportation in commerce by aircraft, railcars, vessels, and by any motor vehicles, but does not apply to vehicles that are not engaged in commerce (i.e. private passenger cars). The HMR apply to intrastate motor carriers transporting hazardous wastes and hazardous substances (as determined under statutes administered by and regulations issued by EPA). Specific packaging and labeling requirements are mandated for the shipment of hazardous wastes and hazardous materials, and a manifest is required for the transport of hazardous wastes.

PPSI HSE Draft #2 11 5/6/2018 1. Marking and Packaging

With regards to the coatings industry – most oil based paints and coatings are hazardous materials since these materials are either combustible or flammable. Other paints and coatings may be hazardous materials since they are corrosive in nature or in some cases exhibit toxic characteristics. A shipper must determine whether a material meets the definition of a “hazardous material” as specified under the regulations and ensure that the label and/or package is marked with the proper shipping name, class/division of substance, identification number and hazard warning label.

III. State and Local Regulations

Although federal preemption has provided some uniformity in product hazard communication, state and local governing bodies have also instituted individual requirements. Generally, these relate to the sale and use of specific products in particular jurisdictions. In addition, various state and local governments have specific requirements for waste handling as well as health and safety requirements. Lastly, fire prevention and emergency response is most often administered at the state and local level. Thus, paint and coatings manufacturers must identify product constituents and communicate such based not only upon the federal requirements, but for each individual state, and sometimes local governments, where they conduct business. Although the following regulations and the White Papers Attachment 1, from the PPSI Regulations Workgroup, attempt to capture state regulatory variations, the following is not a complete list and is offered only as examples of where state and local requirements vary significantly from the federal requirements.

a. Right-to-Know Laws

Several states have enacted right-to-know regulations covering employees and consumers for hazardous materials. Often these regulations pertain to anyone conducting business in the state, not just companies operating businesses in the particular state. The following are a few examples.

i. Pennsylvania

Pennsylvania’s right-to-know labeling law is based on a published hazardous substance list and requires declaration of hazardous substances and non-hazardous substances subject to content criteria. Containers of hazardous mixtures must be labeled with the common or trade name, the chemical or common name of special hazardous substances constituting 0.01% or more of the mixture, the chemical or common name of hazardous substances constituting 1.0% or more of the mixture, a hazard warning and the name, address, and telephone number of the manufacturer. Containers of chemical mixtures must be labeled with the common or trade name, a hazard warning if appropriate, the chemical or common name of either the top five substances by volume or those substances constituting 5.0% or more of the mixture and name, address and telephone number of the manufacturer. MSDS must list all ingredients subject to the following content limits: special hazardous substance at 0.01% or above; hazardous substances at 1.0% or above and non-hazardous substances at 3% or above.

PPSI HSE Draft #2 12 5/6/2018 Pennsylvania’s regulation applies to anyone who conducts business in Pennsylvania, no matter where company facilities are located. More information on Pennsylvania’s right-to- know regulations can be found at http://www.dli.state.pa.us/landi/cwp/view.asp? a=144&Q=179952.

ii. New Jersey

The New Jersey right-to-know law requires covered employers to label containers that are used, stored or manufactured in New Jersey. All paint manufacturers are covered employers under the law. Containers at facilities must be labeled with the chemical name and Chemical Abstract Service number of all hazardous substances and the name of the five most predominant substances in the container. If more than 1% of the content of the container are unknown, the label should specify “content unknown” or “contents partially unknown.” More information on New Jersey’s regulations can be found at http://www.state.nj.us/health/eoh/rtkweb/rtklbl.pdf.

iii. California

California’s right-to-know law, commonly known as Prop 65 after the Proposition ballot initiative that instituted the law in 1988, lists chemicals known to the state to cause cancer or reproductive harm. Prop 65 requires that the presence of a listed chemical be communicated with a “clear and reasonable warning” to those exposed and while there are not requirements governing placement or prominence, enforcement actions suggest warning on both the product label and the MSDS is the most effective method of compliance. If the product contains one of the listed chemicals, even in trace amounts, it must contain the statement “WARNING: This product contains a chemical know to the state of California to cause cancer and/or birth defects or other reproductive harm.” More information on Prop 65 can be found at http://www.oehha.ca.gov/prop65.html.

b. Air Quality Regulations

The EPA’s AIM rule (see Section II, Subsection b., Chapter 2) currently covers the entire US except for California, various Ozone Transport Commission states (OTC), and a few other districts such as Maricopa County, Arizona, which have implemented more stringent standards than the federal requirements. There is also the possibility that other states/localities will adopt rules more stringent than the federal standards for VOC, as evidenced by the Lake Michigan Air Directors Consortium’s (LMADC) initiative. Generally, state and local VOC labeling requirements follow the National AIM rule, requiring the date of manufacturer, thinning instructions, VOC content and special label statements for industrial maintenance products. However, some rules require additional labeling for certain categories of coatings. In addition, the rules may vary as to content limits, category listings and definitions. The following are some examples of where States have adopted more stringent requirements than the National AIM rule. While this White Paper attempted to delineate where there are current regulatory differences as well as potential future differences, it is not intended to be exhaustive and there may be additional State and local regulatory requirements not listed.

PPSI HSE Draft #2 13 5/6/2018 i. California

California Air Resources Board’s (CARB) Suggested Control Method (SCM) for architectural and industrial maintenance coatings has been adopted by 21 California Air Districts and covers virtually all of California except the South Coast Air Quality Management District (SCAQMD). The CARB SCM took effect on January 1, 2003 and follows the National AIM rule for labeling the date of manufacturer, thinning instructions, VOC content, and industrial maintenance statements, except for the conditions of use statements. However, it contains additional required label statements for clear brushing lacquers, rust preventive coatings, specialty primers, sealers and undercoaters, quick dry enamels, and non-flat high-gloss coatings. Furthermore, it does not contain a recycled content label provision. Lastly, while the SCM includes an averaging provision, including labeling for such, the provision sunset January 1, 2005 – thus, if an individual air district adopting the SCM has not extended that date, averaging is no longer available in that jurisdiction. Lack of this averaging provision could impact paint recycling efforts, not allowing for higher VOC content coatings to be manufactured. The SCAQMD’s regulations require even lower VOC contents and apply to Los Angeles and the surrounding areas. Phase II content limits took effect in 2003 and 2005, with additional changes scheduled for 2006, 2007, and 2008. A current listing of California’s architectural and industrial maintenance rules by air district can be found at http://www.arb.ca.gov/coatings/arch/rules/ruleinfo.htm.

ii. Ozone Transport Commission States

The OTC VOC rules will cover most of the northeastern part of the US. The OTC rules are based on the EPA AIM rule, CARB’s SCM and SCAQMD’s VOC rules. However, since the OTC rules are adopted individually by states, there are some differences, including category listings and definitions as well as labeling provisions. Seven OTC jurisdictions have implemented the rules effective January 1, 2005 – Delaware, the District of Columbia, Maryland, New Jersey, New York, Pennsylvania and Virginia. Of the remaining OTC states, Maine has implemented a rule with an effective date of January 1, 2006, New Hampshire, Massachusetts, Rhode Island and Vermont intend on rulemaking, but have not begun the process, and Connecticut has indicated that it will not issue a rule. To date, none have labeling provisions for recycled content coatings. More information on the OTC model rule and specific State adoption can be found at http://www.otcair.org/interest.asp? Fview=stationary#, under Model Rule Adoption Matrix and MODEL RULE – Architectural, Industrial and Maintenance Coatings (AIM) – AIM Preamble.

iii. Lake Michigan Air Directors Consortium

The Lake Michigan Air Directors Consortium is made up of representatives from Michigan, Illinois, Indiana Wisconsin and Ohio. Recently, LADCO held a workshop to review the latest list of candidate control measures being considered as part of the regional process to address ozone and fine particle non-attainment problems, which may, in the future impose VOC restrictions on the content of coatings. A White Paper outlining LADCO’s analysis of

PPSI HSE Draft #2 14 5/6/2018 architectural and industrial maintenance coatings for VOC regulations can be found at http://www.ladco.org/reports/rpo/Regional%20Air%20Quality/WP_AIM_Version3.pdf.

c. Waste Handling Regulations

Many state and local governments have waste handling regulations that go beyond the federal government’s regulations or are in lieu of federal regulations. This is often the case with post-consumer paints and latex paint as they are not regulated under RCRA. For example, California treats all paint waste, even latex paint waste, as presumptively hazardous, but provides for exemptions from this designation for recycling activity. Texas and New Jersey classify paint wastes as universal wastes, although vastly different in their implementation, these regulations reduce the handling burden of these waste in order to promote reuse, while still providing for the safe cradle to grave management of these wastes. Pennsylvania requires collection contractors to assume generator status of hazardous waste collected as part of a household hazardous waste collection and to manage oil based paint as a hazardous waste. There may also be municipal regulation governing paint waste handling, particularly with respect to disposal of left-over paint. (See Attachment 1 to this White Paper for a list of waste management regulations specific to paint, produced by the PPSI Regulations Workgroup)

d. Fire Code Regulations

Fire code regulations are administered at the state and local level and generally impact solvent based paint. The National Fire Protection Association (NFPA), founded in 1896, is an international nonprofit membership organization that serves as the world's leading advocate of fire prevention and is an authoritative source on public safety. NFPA's 300 codes and standards are used throughout the United States in order to protect property and lives from fire danger. NFPA 1. Fire Prevention Code, provides the requirements necessary to establish a reasonable level of fire safety and property protection in new and existing buildings. This includes labeling of products designed to provide rapid, clear information to emergency responders on materials under conditions of fire, chemical spill, or other emergency situations as well as building and handling safety codes designed to prevent flammable materials from igniting. NFPA codes have been adopted, in whole or in part, by virtually every State and local government in the US. More information on NFPA and it’s code can be found at http://www.nfpa.org/index.asp?cookie%5Ftest=1.

e. Occupational Safety and Health Regulations

Occupational safety and health requirements are also managed at the state level. A few of these regulations are covered above in Subsection a. - State Right-to-Know Laws, which discussed employer as well as consumer protection right-to-know regulations. Other right- to-know regulations only cover employers, such as Massachusetts right-to-know law. The Massachusetts right-to-know law became effective in 1984 and initially applied to both the private and public sector in Massachusetts. However, it was preempted for the private sector in 1988 by the Federal OSHA Hazard Communication Standards as discussed in Section II, Subsection a. Therefore, the Massachusetts right-to-know law now only applies to State,

PPSI HSE Draft #2 15 5/6/2018 county and municipal workplaces in Massachusetts. Employers must ensure proper identification and subsequent labeling and MSDS availability for all hazardous substances entering the workplace.

IV. International Regulations

There are various Federal and International regulations governing the import, export and sale of chemicals and products, including paint. These include, but are not limited to, notifications, labeling, packaging, recordkeeping and reporting requirements, and fall under regulations governed by EPA, the Drug Enforcement Agency, and US Customs. In addition, each country has their own regulations governing product content and hazard communication. This White paper briefly describes those regulations in Canada and Mexico. a. Canada

What incentives, if any, does Canada have built into their requirements for recycled paint?

The legislative and regulatory provisions in Canada which impact hazard communication requirements for paint and coatings include the following: the Hazardous Products Act under which are the Consumer Chemicals and Container Regulations 2001 (CCCR2001) for consumer products and the Controlled Product Regulations which are commonly referred to the Workplace Hazardous Material Information System (WHMIS) for industrial products. General commercial labeling requirements are covered under the Consumer Packaging and Labeling Act Regulations and Weights and Measures Act.

Canada requires bilingual labeling and MSDS text in English and French for mandated labeling verbiage under the CCCR2001 and WHMIS. The province of Quebec requires French for all verbiage on labels (i.e. directions for use etc.) and no language may be given greater prominence than the French may. In practice almost all consumer and industrial labeling appears in both languages with equal font size and prominence.

It is important to stress that Canadian requirements for labeling are vastly different from those of the USA. The CCCR2001 regulation is criteria based (toxicity, corrosive, flammable etc.) and has provisions for banning classes of products. A regulated product may carry a signal word, primary and secondary statement of hazard, first aid treatment statement, and negative and positive instructions that must be set off from the rest of the label text by a border or other means. Most notable this CCCR2001 set off cannot resemble the WHMIS (see below) border. These regulations often require front panel symbols as well as specified font and dimension for label text and symbols.

Workplace chemicals are governed by WHMIS. These regulations prescribe the format of a compliant MSDS as well as MSDS headings, MSDS ranges and listing criteria among others. The MSDS and warning label language must be available in both English and French. A WHMIS compliant label must be set off by a specific, legislated, hashed border. Hazard symbols are required as well as risk phrases, product identifier, supplier identification, precautionary measures, first aid measures and mandated MSDS cross – reference indications.

PPSI HSE Draft #2 16 5/6/2018 b. Mexico

What incentives, if any, does Mexico have built into their requirements for recycled paint?

Hazard communication for paint and related products for distribution in Mexico has evolved since the North American Free Trade Agreement (NAFTA). The Mexican authorities are developing a series of regulatory requirements, known as “Normas” (Normas Officials Mexicans) that are increasingly being enforced by Mexican authorities. US exporters to Mexico should be aware that enforcement actions are signaling that Mexico is placing increasing importance on compliance with its product regulations. Unfortunately, there is no “single” hazard communication regulation in Mexico that applies to “all products.” Instead, it differs depending on the type of product being shipped to Mexico.

Mexico has published extensive labeling regulations for general consumer goods as well as a wide variety of consumer and industrial products bound for the Mexican market. The critical NOM’s for labeling products in Mexico include the General Consumer Labeling Requirements (NOM-050-SCFI-1994) issued in 1994 and the “weights and measures” labeling NOM (NOM-030-SCFI-1993). In July of 1997, Mexico began enforcing labeling rules for consumer products, including specific requirements for paints and coatings. Labels on products covered by the rules must include the following information (in Spanish): name of the product; importer company name and address; net content, product-specific warnings about potential health risks and precautions; and directions for usage, handling, and preserving the product, when appropriate.

V. Conclusion\Recommendation

The general conclusion that can be drawn from the White Paper is that the existing US regulatory structure is based on “knowns” versus unknowns. This creates a tension when trying to create a market for something that involves unknowns, namely recycled content paint.

There is a fundamental tension present between the US regulatory requirements for virgin paints and coatings versus the regulatory requirements for post-consumer/recycled paints and coatings. The tension is that existing US regulatory requirements for "virgin" materials assumes the product (in this case, paint) is made according to a relatively standard process, which results in a relatively standard product. It also assumes absolute knowledge of the materials that make up the product. No such general assumption can be made when dealing with post consumer/recycled paints. This is in large part due to actual or perceived contamination that may occur once the product has left the manufacturer’s control, whether that control passes into the hands of a consumer (a homeowner) or some other entity (such as an institution, or a governmental agency, like a municipal landfill or waste transfer station, etc.). Because of this, the regulations that have been created in the US that deal with used materials, even recyclable materials, assumes that the materials are wastes and not products, subjecting them to a different set of regulatory criteria – criteria that are geared towards disposal, particularly the disposal of hazardous waste, and not to the making of new products.

PPSI HSE Draft #2 17 5/6/2018 Thus, the existing regulations are not conducive to the manufacture of recycled content paint, particularly when post-consumer paints are used as raw materials. Virgin paint manufacturers know exactly what raw materials have gone into the final product and can certify this based on formulation data. Recycled paint manufacturers, on the other hand, deal with the unknown, and must set up extensive sorting and testing protocols in order to ensure their hazard communication requirements are met. In addition, recycled paint manufacturers can face additional regulatory burdens by having to comply with waste and hazardous waste regulations because they use of leftover paint as a raw material. This creates an increase in cost and a regulatory burden associated with the recycled paint manufacturing process and a disincentive to the manufacturer of recycled content paint.

While the risks to the public from potential hazards must not be ignored, this White Paper suggests that there is some regulatory relief that can be granted without significant harm to human health and the environment. Assuming that there is a net economic and environmental gain to the manufacturer of recycled content paint, (a question to be answered under the Lifecycle Cost Benefit Analysis (LCA/CBA) project), recycled paint manufacturers should be afforded regulatory relief and provided with incentives for the continued manufacture of such. This is particularly true from the standpoint of waste regulations, as well as from various content regulations. Below is a list of possible relief initiatives, which the PPSI could pursue.

 VOC Content Equation from Federal AIM Rule should be extended to OTC States and any other jurisdictions with more stringent VOC regulations than the National AIM rule.  Creation of a uniform system of regulations at the Federal, State and local levels to regulate the activities of recycled paint manufacturers, recognizing that leftover paint is a “product,” not a “waste,” and recognizing the need to deal with the issue of “unknowns,” as well as the formation of collection and transportation compacts with states and municipalities for the purpose of supplying inputs for production to recycled paint manufacturers.  OSHA mixtures rule to determine hazards could be utilized for recycled content paint. Mixtures can be tested as a whole to determine the hazards. Where complex mixtures have similar hazards and contents (i.e., the chemical ingredients are essentially the same, but the specific composition varies from mixture to mixture), the chemical manufacturer, importer or employer may prepare one material safety data sheet to apply to all of these similar mixtures. This could be used for the post-consumer portion of recycled content paint  Others?.

In order to pursue these burden reduction efforts and incentives, PPSI needs more data to show that recycled paint does not have an inherently higher content of substances that pose more of a risk to users (mercury, pesticides, flammables, etc), namely, that it does not pose an inherently higher risk than virgin paint and can meet all applicable hazard communication requirements. Alternatively, PPSI needs more data to show that the environmental and economic benefits of recycled content paint outweigh the risk of using leftover paint as a raw material in new paint products when it comes to hazard constituent identification and

PPSI HSE Draft #2 18 5/6/2018 communication requirements. In lieu of either option, a new set of regulations could be pursued, based on the combined information from the PPSI projects that specifically addresses the unique circumstances of recycled content paints and coatings and provides the appropriate framework with which to manufacturer such while ensuring no significant harm to human health and the environment.

This White Paper recommends using the outcome of the LCA/CBA project, the results of the recycled content paint certification project, as well as any other existing or PPSI project related data to determine whether or not the above options should be pursued and if so, which ones. Once the data gaps are filled in, the PPSI can determine a path forward and this White Paper will be updated accordingly.

PPSI HSE Draft #2 19 5/6/2018