ST. LOUIS — Two recent actions — one in Washington and the other on the opposite coast — appear to have sharpened the focus on the states as a key battleground for new regulatory initiatives affecting architectural and industrial-maintenance coatings.

In Washington, the U.S. Court of Appeals rejected a legal challenge to the EPA’s national VOC rule on architectural and industrial-maintenance coatings — the so-called “AIM” rule — mounted by a group of coatings manufacturers. The group of companies, led by Dunn-Edwards Corp. and Smiland Paint Co. of Southern California, had filed suit in a bid to overturn the VOC rule, which went into effect last year.

In Sacramento, the California Air Resources Board (CARB) revised its suggested control measure (SCM) on architectural and industrial-maintenance coatings, issuing new, lower VOC limits on a range of coatings products. The measure, which is used by regional and local air-quality agencies in the state as a guide in regulating VOC emissions, includes recommended VOC limits on 47 coatings categories, including subcategories. The SCM does not directly regulate coatings VOC content, but the revisions are expected to lead to new VOC controls in parts of California.

In addition, CARB officials approved a revised statewide regulation on aerosol coatings, a measure that uses VOC photochemical reactivity as a basis for emissions reductions. The agency said the regulation, reported to be the first of its type anywhere in the nation, requires manufacturers to focus on how much ozone pollution specific VOCs can cause when emitted into the atmosphere. The rule’s VOC limits are based on the “maximum incremental reactivity” (MIR) scale developed by William Carter of the University of California-Riverside, and are expressed in terms of grams of ozone generated per gram of coating product.

Barring appeals or other legal moves, the court decision on the national VOC rule removes one major question regarding regulation of architectural and industrial maintenance coatings — whether the EPA rule would withstand legal challenge and provide coatings manufacturers with an essentially uniform formulating target.

But as the CARB action shows, the court ruling by no means guarantees that the national rule will stand as a barrier to regulatory initiatives by state or regional air-quality agencies. Already, an organization of northeastern states — the Ozone Transport Commission — is considering proposals to toughen VOC rules on architectural coatings as part of an ozone pollution-reduction strategy.

Court Ruling Lauded by the NPCA

In its ruling on the lawsuit challenging the national VOC rule, a three-judge panel of the appeals court rejected a number of arguments made by Dunn-Edwards, Smiland and other plaintiffs. The companies said the EPA acted without sufficient legal basis, used erroneous criteria in developing the VOC rule, and failed to address the issue of relative VOC reactivity, or the different rate of photochemical reactivity of various solvents. Environmental regulators say the photochemical reactivity of VOCs is a contributing factor in the formation of ozone pollution, or smog.

The court decision was welcomed by the National Paint & Coatings Association (NPCA), which supported the national VOC rule as offering a uniform national standard. NPCA President J. Andrew Doyle said the association had campaigned for more than 10 years on behalf of its member companies for “one reasonable AIM national rule for predictability, efficiency and to preserve a level, competitive playing field.” He said the NPCA strongly urges state and regional air-quality agencies “to follow the reasoning of this court’s ruling and work to conform their AIM rules to the national EPA standard. We certainly intend to use this decision to this positive effect, to every extent possible.”

Thomas Graves, vice president and general counsel of the NPCA, said the court decision sends a message that “this rule is fair and even-handed, and much preferable to a host of divergent regulations. The chief task here is to hold the states to the national rule.”

Still, an attorney representing Dunn-Edwards said the ruling was not a total defeat for the plaintiffs. The attorney, C. Boyden Gray, said that, based on his interpretation of the decision, the court has left coatings manufacturers with the option of seeking revisions to the EPA rule. Gray said the court indicated that the issue of relative VOC reactivity could play a part in efforts to revise the rule’s provisions. “That’s the way I read it,” Gray said. “This ruling is more complicated than it appears on the surface.”

Gray said the court ruling calls into question the EPA’s decision, made during the rule-development process, to discount the issue of relative reactivity in development of VOC-content limits. Gray said the court, in effect, indicated that “it may be that Dunn-Edwards is right” in its argument that relative reactivity is an important factor in determining the role of different compounds in the generation of ozone pollution. Gray, however, said an appeal of the court ruling as a whole appears to be unlikely, at least for Dunn-Edwards.

Chris Foster, an attorney representing other paint companies that sought court action on the VOC rule, said those companies are reviewing the decision before deciding on any appeal or further legal moves. He said a preliminary analysis of the decision leaves some question about whether the court addressed a key issue raised by the plaintiffs — the possibility that the EPA might seek to enact another, later round of VOC limits on architectural and industrial-maintenance coatings.

Foster represented Smiland Paint Co. of Los Angeles; Triangle Coatings Co., San Leandro, CA; Trinity Coatings Co., Fort Worth, TX; XIM Products Inc., Westlake, OH; and Gemini Industries, El Reno, OK.

California Agency Expects Local Districts to Revise VOC Rules

In a CARB staff report detailing the revised SCM on architectural coatings, the California agency said it expects the state’s 17 regional air-quality districts that currently regulate architectural-coatings VOCs to amend their regulations as a result of approval of the SCM. An exception is the South Coast Air Quality Management District (SCAQMD), which earlier approved new VOC limits that provided the basis for development of the SCM by the Air Resources Board.

In addition, the staff report on the SCM notes that five additional air-quality districts that do not meet ozone-pollution standards are candidates to enact coatings-VOC regulations. Those districts are the Glenn, San Luis Obispo, Shasta, and Tehama County districts and the Yolo-Solana Air Quality Management District.

The architectural-coatings SCM includes limits of 100 grams per liter (g/L) for flat coatings, 150 g/L for nonflats, 250 g/L for high-gloss nonflats, and 250 g/L for industrial-maintenance coatings. Proposed limits for specialty coatings range from a low of 150 g/L for traffic-marking coatings to a high of 730 g/L for clear shellacs. The proposed effective date for the limits is Jan. 1, 2003, except for a date of Jan. 1, 2004, for industrial-maintenance coatings.

The limits are generally more stringent than the U.S. EPA’s national rule on VOCs in architectural and industrial-maintenance coatings, which went into effect in 1999. The national rule sets VOC limits of 250 g/L for flat coatings, 380 for nonflats and 450 g/L for industrial-maintenance coatings, and also includes additional limits designed to accommodate formulation requirements for specialty products.

The CARB VOC limits also include some differences from the South Coast Air Quality Management District’s existing Rule 1113 on architectural coatings. Those differences include the SCM’s higher VOC limit for high-gloss nonflats and separate limits for a number of specialty coatings categories.

The SCM also includes a special provision to allow limited use of industrial-maintenance coatings with VOC content of up to 340 g/L in coastal areas of northern California, including the San Francisco Bay area. The provision is designed to address the coatings-application conditions encountered in the regions’ persistent fog and cold temperatures.

CARB’s aerosol-coatings rule sets reactivity-based VOC limits for six types of “general coatings,” with the limits becoming effective June 1, 2002. VOC limits are also set for 29 specialty aerosol coatings, with those limits becoming effective on Jan. 1, 2003.

In issuing the new aerosol rule, CARB officials said members of its staff and industry representatives agree that reactivity-based VOC limits “may provide more flexibility, while efficiently reducing the ozone formed from aerosol coatings.” The reactivity-based VOC limits replace the conventional, mass-based VOC limits that were scheduled to go into effect on Jan. 1, 2002. Industry sources said many of those limits were considered technically infeasible.

More information on the CARB actions can be obtained from the agency’s Web site at www.arb.ca.gov.

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