August 11, 2020

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August 11, 2020

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California Proposes Amendments to Air Cleaner Regulation

On June 3, 2019, the California Air Resources Board (CARB) held a public workshop in preparation for its plans to initiate rulemaking later this year to amend its regulation on indoor air cleaning devices. In advance of official rulemaking, CARB has released a draft of the proposed amendments designed to strengthen the effectiveness of the regulation, streamline the certification process, and provide additional clarifications on key requirements. Notably, the proposed amendments would eliminate the exemption for in-duct air cleaning devices that has been in place since the regulations were initially adopted in 2007. CARB is continuing to accept public input on this draft (see workshop announcement). 

Background

In 2007, CARB adopted the indoor air cleaner regulation pursuant to California Assembly Bill 2276 in response to emerging concerns about indoor ozone emissions. While several states and the U.S. Environmental Protection Agency warn against using ozone generators in occupied indoor spaces, and the Food and Drug Administration limits ozone emissions from medical air cleaner devices, California’s program is unique in its breadth and coverage.

The regulation generally imposes certification, ozone testing, electrical safety testing, labeling, notification, and recordkeeping requirements on covered devices intended for use in occupied spaces in California. The ozone emissions concentration limit is 0.050 parts per million (ppm). Personal air cleaners, air cleaners used in motor vehicles, stand-alone air cleaners, and products with a primary purpose other than air cleaning but that include an air cleaner are all examples of covered devices.

Certain exemptions are provided in the current regulation for industrial-use devices. In addition, due to the lack of available test methods and sales data at the time of adoption, the regulation exempts “in-duct” air cleaners that are physically integrated into HVAC systems.

In the years since the regulation was finalized, CARB has observed a significant increase in the use of air cleaners in the state, including in-duct air cleaners, in response to recent large fires, floods, and indoor marijuana use. CARB believes that this market data along with other new sources of information, including revisions to test methods and the availability of a test method for in-duct devices, warrant regulatory changes. 

Summary of Key Changes

Required Certification for In-Duct Air Cleaners

The proposed amendments would no longer exempt electrical in-duct air cleaners. CARB has identified an ozone test method for in-duct air cleaners and has determined these cleaners are being sold and used in California, necessitating regulation along with the other covered devices. Purely mechanical in-duct air cleaners would still be exempt, subject to certain CARB documentation and approval requirements.

Expanded Definition of Covered Devices

The definition of indoor air cleaning devices covered by the regulation would be amended to include electric units that pull air in from outside and are not purely mechanical, such as window units that use an ionizer. Additionally, the definition would make it clear (consistent with CARB’s longstanding position) that personal devices and dual-function devices must also comply.

Refined Industrial Use Exemptions

The proposed amendments would enhance requirements for devices that meet one of the industrial use exemptions from certification. These include adjustments to the required label advisory and statements in accompanying product literature indicating that the device is intended for use in unoccupied spaces and a requirement that devices are manufactured, marketed, advertised, and labeled consistent with the exempt industrial use. Industrial use exemptions unrelated to air cleaning (e.g., water purification, mold remediation, pulp, and paper processing) would be eliminated, as these industrial uses are regulated elsewhere.

Streamlined Certification Process

The proposed amendments would streamline some aspects of the certification process and would clarify when recertification is needed. Specifically, certain portable devices using ultraviolet light within a certain wavelength would no longer need to be certified for ozone. Additionally, the proposed amendments would expressly state CARB’s current practice of requiring manufacturers of devices that make medical claims to submit proof of application for FDA approval. The recertification requirements would also be updated to require recertification only when a device is altered or rebranded. 

Clarified Online Advisory Requirements

Online retailers and sellers of indoor air cleaning devices for non-industrial use that are not certified in California (for example, indoor devices not manufactured, sold or supplied in California but advertised online or in a catalog) are currently required to include an advisory on the product web or catalog page that warns potential California consumers that the device “Does not meet California requirements [and] cannot be shipped to California.” 

The proposed amendment would require online retailers and sellers to specifically display the advisory before consumers enter their purchase information. 

Shifted Reporting and Recordkeeping Responsibilities

CARB seeks to reduce reporting requirements by increasing recordkeeping requirements; manufacturers would need to maintain updated notice records currently required to be submitted to CARB for at least 5 years and to maintain additional device records for as long as the device is sold or in commerce under the proposed amendments. 

Additional Updates

CARB proposes updates to the legal references, test standards, qualified testing labs, and required labeling language on both medical and non-medical devices to bring the regulation current. 

Next Steps

Manufacturers, retailers, and sellers of air cleaners, and especially manufacturers of in-duct air cleaners or air cleaners that may require re-certification, as well as online retailers of these devices, should make note of the proposed amendments. CARB is accepting questions and comments on the draft proposed amendments now. The official public comment period on proposed amendments is expected to begin in October and the next CARB hearing on the amendments is scheduled for December 12-13, 2019. For more information from CARB, click here.

© 2020 Beveridge & Diamond PC National Law Review, Volume IX, Number 183

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About this Author

Lauren A. Hopkins Consumer Products Attorney Beveridge & Diamond San Francisco, CA
Office Managing Principal

Lauren’s practice focuses primarily on global product stewardship, responsible sourcing, and corporate sustainability.

She advises clients across a range of industry sectors on environmental, social and governance (ESG) disclosures, responsible sourcing of raw materials including “conflict minerals” and forest products, as well as human rights and labor issues in corporate operations and supply chains. She advises on issues including interpretation and implementation of the U.S. Securities and Exchange Commission’s conflict minerals rule, supply chain due diligence, and the...

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Aminah Famili Environmental Enforcement Defense Attorney Beveridge & Diamond San Francisco, CA
Associate

Aminah Famili always puts her clients’ needs and objectives at the forefront, providing them with consistently on-point analyses and novel legal arguments.

Aminah focuses her practice on regulatory compliance counseling and environmental enforcement defense matters. She helps clients in a wide range of industries, including consumer product, retail, technology, and power generation, navigate through environmental regulatory schemes at the federal, state and local level. She has a sharp legal mind and is able to synthesize and translate complex regulations and legal analyses into easy-to-understand language.

Aminah has experience with matters arising under a variety of federal environmental laws including the CAA, CERCLA, CWA, EPCRA, FIFRA, and RCRA. She also has significant experience with California-specific regulatory schemes, including California’s hazardous waste and materials management requirements, Extended Producer Responsibility legislation, and Proposition 65.

In addition to her regulatory practice, Aminah has successfully represented clients in civil and administrative enforcement proceedings, contaminated property litigation, citizen suits and administrative permitting challenges.

    Aminah enjoys the ever-changing and thought-provoking nature of practicing law.

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    Kate A. Tipple Environmental Litigation Attorney Beveridge & Diamond San Francisco, CA
    Associate

    Kate Tipple combines legal experience with a science and environmental management background to creatively tailor effective litigation and compliance strategies.

    While Kate’s experience with environmental law is broad, she has a strong background in water resources and environmental litigation. Her successful litigation experience involves civil and administrative enforcement proceedings, contaminated property matters, and appellate work.

    In addition, Kate advises clients on a variety of regulatory compliance issues, including federal and state consumer product and chemical...

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