EPA Issues Final Rule on Formaldehyde Emission Standards for Composite Wood Products

Jacob s. Wharton | Womble Carlyle Sandridge & Rice LLP | August 4, 2016

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 CARB.

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.

Importer Certification: 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.

Testing requirements: 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 additional exemptions.

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.

Continued Uncertainty in Federal Regulation of Storm Water from Construction Sites

Wendy Manley – September 5, 2012

In the latest turn of the ongoing saga of storm water regulation, the U.S. EPA has withdrawn its proposed rule that would have revised the enforceable numeric effluent limits for runoff from construction sites.  The numeric limits were established for turbidity in effluent limitation guidelines (“ELG”) adopted by EPA in December, 2009.  Once established for specific industrial sectors, ELGs must be incorporated in NPDES permits issued to point-source dischargers.

This regulatory matter has been an arduous journey for EPA, one that may not reach a conclusion any time soon.  Following a lawsuit filed in 1989 by the Natural Resources Defense Counsel alleging that EPA had failed to meet its statutory obligation relative to discharges from construction and development, EPA identified that sector as an industrial point source category for further rulemaking under Clean Water Act section 304(m).  EPA then solicited comments in 2002 on a range of options to address construction storm runoff.  In 2004, EPA decided not to promulgate ELGs, drawing further litigation from NRDC, which did not end favorably for EPA.  A California District Court held in 2006 that once EPA lists an industrial point source category under section 304(m), it has a mandatory duty to promulgate ELGs and New Source Performance Standards (NSPS).  Meeting the court’s deadlines, EPA proposed ELGs and NSPS in November, 2008, and adopted them in December, 2009.  Construction storm water permits adopted after February 1, 2009 were required to incorporate the numeric effluent limits contained in the ELG.

In November, 2010, EPA stayed the numeric turbidity limit in order to review its calculations used to set the limit. As a result, it had to extend the expiration date of the 2008 permit from June 20, 2011 to February 15, 2012 in order to allow time to incorporate the new numeric limitations in the new construction permit.  Most recently, on August 12, 2011, EPA withdrew its proposal in order to gather more data, a move that will extend the period of uncertainty for those subject to the federal construction storm water permit.

EPA’s 2009 ELG set a turbidity limit of 280 nephelometric turbidity units (NTU) for construction runoff.  As it turns out, California’s new Construction General Permit (“CGP”), adopted shortly before EPA adopted its ELG, set a numeric turbidity limit of 250 NTU.  The CGP timing conveniently relieved the State Water Resources Control Board of using EPA’s numeric limit until the following permit cycle.  While it may have been EPA’s proposed 13 NTU limit that propelled the state to adopt the CGP before EPA adopted the ELG, the good news is that California’s CGP is not subject to EPA’s continually shifting rulemaking.

via Continued uncertainty in federal regulation of storm water from construction sites – Lexology.

EPA’s Lead: Renovation, Repair and Painting Rule Pushed to 2015

Advise & Consult, Inc. – October 2, 2012

Commercial buildings now have until 2015 to comply with the Environmental Protection Agency’s Lead: Renovation, Repair and Painting Rule.

This rule has been surrounded by controversy, basically since its inception. Originally, it was to include all contractors doing any renovation on pre-1978 residential and commercial buildings with the hopes of cleaning up lead based paint, dust and exposure during that renovation process. While the intentions were to keep people safe as the increasing knowledge of damage caused by lead paint dust – especially to children.

The controversy started when it created a competitive dis-advantage for those trying to comply with the new regulations and the added cost of the expensive procedures when compared to those contractors that couldn’t, wouldn’t or for some other reason didn’t comply with the new regulations.

The controversy continues with a voluntary legal settlement with environmental groups including the Sierra Club. In this settlement the EPA agrees to propose a significant and costly expansion of the existing residential lead paint rule. It also agrees to eliminate the “opt-out provision” allowing homeowners without children who live in homes built prior to 1978 to choose exempt remodelers from following these specific practices and the required recordkeeping.

The agreement also would require all remodelers of pre-1978 housing projects to perform expensive third-party lead dust clearance testing before completing the renovation. The National Association of Home Builders has successfully convinced the EPA to withdraw this after petitioning the White House.

The final aspect of the agreement is to accelerate the development of the commercial buildings rule and to have that completed by September of 2012. The NAHB also had a say on this as they charged that the agency has failed to perform the prerequisite studies on the potential of harming adults with the dust during the renovation process. Under federal law, the EPA is required to perform these studies and has yet to complete this study.

Surely this is not the end of the story and the controversy and enforcement of this will continue to kick up the dust – pun intended.

No More Opting Out of Rule for Renovation of Buildings Containing Lead Paint

Jennifer Sulla – July 17, 2012

On June 22, 2012, the US Court of Appeals for the DC Circuit upheld the US Environmental Protection Agency’s (EPA) removal of the opt-out provision for work that disturbs lead-based paint in pre-1978 housing.

The opt-out provision would have allowed those homeowners who certified that there were no children younger than six or pregnant women residing in the home to “opt out” of the EPA’s Renovation, Repair and Painting Rule (RRP Rule). The opt-out provision was in the original RRP Rule promulgated by EPA in 2008, but was removed in 2010 as part of a settlement between EPA and several environmental and health advocacy groups.

The National Association of Home Builders and other trade associations petitioned the US Court of Appeals for the DC Circuit for review of EPA’s change of heart. The court ruled against petitioners, holding that it was not arbitrary and capricious for EPA to change its mind and that the court had no jurisdiction to review EPA’s failure to convene a small business advocacy review.

The court noted that two events, in addition to settling with environmental and other groups, explained the EPA’s decision: the inauguration of a new President and the appointment of a new EPA administrator. According to the court, and quoting then-Justice Rehnquist, “[a] change in administration … is a perfectly reasonable basis for an executive agency’s reappraisal of the costs and benefits of its programs and regulations.”

So the story is not over. Not only is there an upcoming Presidential election, but legislation introduced in the US House and Senate earlier this year would, among other things, reinstate the opt-out provision. But in the meantime, EPA is enforcing the RRP Rule and announced earlier this year its first known enforcement actions against three violators.

via No more opting out of rule for renovation of buildings containing lead paint – Lexology.