Guest post by Whitney Passmore and Michael Sullivan
On Wednesday, July 27, 2016, the Environmental Protection Agency (“EPA”)
released a prepublication version of its final rule on Formaldehyde Emission
Standards for Composite Wood Products. The authority for the rule comes from
the Toxic Substance Control Act (“TSCA”). The EPA’s rule relies heavily on the
formaldehyde emissions rules set by the California Air Resources Board (“CARB”)
as part of California’s Phase 2 formaldehyde emissions standards, and the EPA’s
emissions standards are identical to those set by CARB.
Who will be affected by the new rule?
This rule will affect manufacturers, importers, distributors, and retailers
of products containing composite wood, which is defined as hardwood plywood,
medium-density fiberboard, and particleboard.
What is required under the new rule?
The EPA’s final rule sets out detailed record-keeping, labeling, and testing
requirements for composite wood and products containing composite wood. Below
are three major areas of concern that manufacturers, importers, distributors,
and retailers of finished goods containing composite wood should be aware of as
they prepare to comply with the national formaldehyde emissions standards.
Record-keeping and labeling
: One year after
publication of the final rule in the Federal Register, manufacturers of
finished goods containing composite wood (called “fabricators” under the CARB
and EPA rules), importers, distributors, and retailers will have to comply with
new record keeping and labeling requirements.
With regard to record keeping, manufacturers, importers, distributors, and
retailers will be required to “take reasonable precautions” to ensure the
products they sell comply with the emissions standards. As part of taking
“reasonable precautions,” a company must obtain documentation, such as bills of
lading or invoices, from suppliers of composite wood products that includes a
written statement that the products are either compliant with formaldehyde
emissions standards or were produced prior to the rule taking effect. Companies
must keep this documentation for three years – a year longer than required by
Importers face an additional record keeping requirement. If requested to do so
by the EPA, importers must provide records identifying either (1) the composite
wood panel producer and the date the composite wood products were produced or
(2) the supplier of the composite wood products (if different than the
producer), component parts, or finished goods and the date of purchase.
Importers will have to provide this information to the EPA within 30 days of a
request, and documentation must be kept for three years.
Finally, manufacturers of finished goods containing composite wood products
must label each finished good or box or bundle containing finished goods with
the manufacturer’s name, the date the good was produced, and a statement that
the finished goods are compliant with the TSCA. If a manufacturer chooses to
label the box or bundle of goods, importers, distributors, and retailers of
those goods must keep the label from the box or bundle and keep track of which
products are identified with the label. Importers, distributors, and retailers
must make the label information available to potential customers if requested.
: Two years after the
final rule is published in the Federal Register, importers will be required to
certify that imported composite wood or products containing composite wood
comply with the TSCA.
: Beginning seven years
after the publication of the final rule in the Federal Register, manufacturers
of laminated products will have to comply with third-party testing and
certification requirements that apply to manufacturers of hardwood plywood
panels. The EPA defines “laminated product” to include only those products with
a wood or woody grass veneer, so the testing requirements will not apply to
synthetic laminates such as plastic or vinyl. The EPA’s decision to require
third party testing and certification by manufacturers of laminated products is
a significant departure from the CARB rules.
Fortunately, there are a number of ways companies can lessen or avoid the
burdens of a costly testing program. First, the EPA exempts two types of
laminated products from the definition of “hardwood plywood”: (1) Laminated
products made by attaching a wood or woody grass veneer with a
phenol-formaldehyde resin to a compliant platform; and (2) laminated products
made by attaching a wood or woody grass veneer with a resin formulated with
no-added formaldehyde (“NAF”) as part of the resin cross-linking structure to a
compliant platform. Accordingly, a manufacturer using NAF or
phenol-formaldehyde resins will not be subject to the testing and certification
requirements. Instead, these manufacturers must keep records showing their
products are made with the appropriate resins and a compliant platform.
Notably, the EPA has left the door open for interested parties to petition for
Second, manufacturers of laminated products can apply for an exemption from the
testing and certification requirements based on use of ultra low-emitting
formaldehyde (“ULEF”) resins. To qualify for a ULEF exemption from the testing
and certification requirements, a company must undergo a limited (6 months)
testing program to show its product complies with emissions limits. Additional
limited testing is required to renew the exemption every two years.
Womble Carlyle's Furniture
Industry Team and Environmental,
Energy & Toxic Tort Litigation Team counsels clients on regulatory
matters including compliance and supply chain management. If you have any
questions about the EPA's rule on Formaldehyde Emission Standards for Composite
Wood Products, please contact Whitney
Passmore at 336.721.3532 or WPassmore@wcsr.com,
Sullivan at 404.879.2438 or MSullivan@wcsr.com,
or any member of the aforementioned teams.