Beveridge & Diamond
 

Congress Enacts “Formaldehyde Standards for Composite Wood Products Act” Amending the Toxic Substances Control Act

Beveridge & Diamond, P.C., June 24, 2010

On June 14, the Senate passed by unanimous consent S. 1660, the Formaldehyde Standards for Composite Wood Products Act (“Formaldehyde Standards Act” or “FSA”).1  The House passed identical legislation on June 23, 2010.2  The Formaldehyde Standards Act amends the Toxic Substances Control Act (“TSCA”) through the addition of Title VI to TSCA. It regulates formaldehyde emissions from (1) hardwood plywood, medium-density fiberboard, and particle board that is sold, supplied, offered for sale or manufactured in the United States, and (2) finished goods produced from these composite wood products.

The Formaldehyde Standards Act is noteworthy in several respects because it:  (1) adopts standards established by the California Air Resources Board (“CARB”)3 as national standards, advancing trends in state action leading the way in chemical product regulation; (2) addresses chemical concerns previously raised in petitions to EPA but not yet addressed by the Agency (reported in a prior B&D alert on April 28, 2009);4 (3) singles out a specific chemical, formaldehyde, for TSCA regulation (joining PCBs, asbestos, radon, lead and elemental mercury); and (4) regulates under TSCA manufacturers and sellers of composite wood products and finished goods incorporating these products not previously regulated by TSCA.5

Background

Since the 1990’s, the safety of formaldehyde emissions has been evaluated pursuant to the Clean Air Act Amendments of 1990 in which formaldehyde was identified as a hazardous air pollutant for which emissions standards were required.6  More recently, CARB evaluated formaldehyde emissions from composite wood products.7  Formaldehyde emissions gained greater notoriety due to concerns regarding formaldehyde exposure by persons living in temporary trailers used in Hurricane Katrina recovery efforts.  These concerns arose from potential for exposure to “off-gassing” formaldehyde from trailer construction materials.  Reflecting this concern, FSA defines manufactured and modular homes and thereby indicates that EPA will address these exposure settings through future rulemaking.8

While CARB was adopting composite wood formaldehyde emissions standards, EPA received petitions from several non-profit organizations asking the Agency to use its TSCA section 6(a) authority to adopt the anticipated CARB standards.9  EPA declined this specific relief sought by the petitions.10  At that time, EPA indicated that it would undertake a rulemaking to determine the steps necessary to protect against formaldehyde emissions from composite wood products.  In addition, on June 2, 2010, EPA announced a 90-day public comment period on a draft human health assessment:  “Toxicological Review of Formaldehyde Inhalation Assessment:  In Support of Summary Information on the Integrated Risk Information System.”11  With Congressional action taken on formaldehyde emissions standards, now EPA’s risk assessment, and the comments that EPA receives on its draft, will influence implemention of the Formaldehyde Standards Act.

On January 1, 2009, CARB regulations became effective in California for controlling formaldehyde emissions from composite wood products, including those products incorporated into finished goods.12  The Formaldehyde Standards Act will lead to adoption on a nationwide basis of key aspects of the CARB standards, while subjecting to TSCA jurisdiction and enforcement the producers of composite wood products and of finished products containing them.13

Formaldehyde Standard Act Requirements

Under the FSA, EPA must establish new regulations, by January 1, 2013, under which CARB standards for formaldehyde emissions will apply to hardwood plywood, medium-density fiberboard, and particle board sold, supplied, offered for sale or manufactured in the U.S.14  The standards apply to these composite wood products in both unfinished panels and when incorporated in finished products.15  (Finished products exclude a component part of a finished good standing alone and previously sold “finished” goods such as antiques or secondhand furniture.)16  The FSA also requires that EPA, in coordination with the Department of Homeland Security, revise TSCA Section 13 regulations to apply FSA requirements to imported products.17

FSA adopts testing standards for determining whether products (1) meet emissions standards, or (2) fall within defined product classes.18  FSA also grants EPA some authority to modify testing standards and regulated product definitions in the context of Agency rulemaking.19

FSA adopts technology-based emissions standards for hardwood plywood, particleboard, or medium-density fiberboard in reference to technical standards defining each material.20  FSA exempts from emissions standards a number of lumber types and products, as well as composite wood products used in new vehicles (other than recreational vehicles), railcars, boats, aerospace and aircraft, and certain windows and garage or exterior doors. 21 

EPA Rulemaking to Implement Formaldehyde Standards Act

By January 1, 2013, EPA must promulgate regulations implementing FSA emissions standards. 22  EPA regulations much address, among other things, product labeling, chain of custody requirements for products, “sell through” provisions enabling the sale of previously manufactured products not subject to emission standards, third-party testing and certification, recordkeeping, preferred resin products which may exempt a product from third-party certification, and exempt products containing composite wood products in de minimis amounts.23  Notably, EPA must adopt through rulemaking the number and frequency of tests required to demonstrate compliance with admissions standards.24  With respect to “sell through” provisions for existing composite wood products, FSA prohibits “stockpiling” these products in amounts greater than the rate of manufacture or purchasing prior to FSA enactment, which may restrict manufacturers given economic conditions before FSA enactment. 25

Conclusion

The Formaldehyde Standards Act imposes on a nation-wide basis recently adopted CARB formaldehyde emissions standards for composite wood products and many products containing them.  Many producers and sellers of affected products already may be moving to comply with CARB standards for all products.  FSA extends, however, TSCA regulatory jurisdiction and enforcement to classes of manufacturers and importers who may not be aware of CARB developments.  Further, these parties may be unlikely to consider their potential regulation under TSCA, need to participate in the FSA rulemaking, or exposure to TSCA enforcement and liability.

For more information, please contact Michael Neilson at mneilson@bdlaw.com or Mark Duvall at mduvall@bdlaw.com.

For a printable PDF of this article, please click here.


1 111 Cong. Rec. S4891-92 (daily ed. Jun. 14, 2010), available at http://www.gpoaccess.gov/crecord/digest2010/d14JN101.html.
2 111 Cong. Rec. H4701-05 (daily ed. Jun. 23, 2010).
3 Notice of California Air Resources Board adopting “Airborne Toxic Control Measure to Reduce Formaldehyde Emissions from Composite Wood Products” (to be codified at 17 California Code of Regulations, sections 93120-93120.12), No. 18-Z Cal. Regulatory Notice Reg. 677 (May 2, 2008).
4 http://www.bdlaw.com/news-557.html.
5 S. 1660 111th Cong. § 2 (as passed by Senate, June 14, 2010, and House, June 23, 2010), adding TSCA § 601(b)(1)(4). 
6 S. Rep. No. 111-169, at 2 (2010).
7 Id. at 3. 
8 S. 1660 111th Cong. § 2 (as passed by Senate, June 14, 2010, and House, June 23, 2010), adding TSCA §§ 601(a)(4), (6). 
9 Formaldehyde Emissions form Composite Wood Products; TSCA Section 21 Petition; Notice of Receipt, 73 Fed. Reg. 22,369 (Apr. 25, 2008).
10 Formaldehyde Emissions from Composite Wood Products; Disposition of TSCA Section 21 Petition, 73 Fed. Reg. 36,504 (June 27, 2008). 
11 Draft Toxicological Review of Formaldehyde in Support of Summary Information on the Integrated Risk Information System, 75 Fed. Reg. 30,825 (June, 2, 2010). 
12 No. 18-Z Cal. Regulatory Notice Reg. 677 (May 2, 2008).
13 S. 1660 111th Cong. § 2 (as passed by Senate, June 14, 2010, and House, June 23, 2010), adding TSCA §§ 601(b), (e).
14 Id., adding TSCA § 601(d).
15 Id., adding TSCA § 601(b)(4).
16 Id., adding TSCA § 601(a)(1)(B)(ii).
17 Id., adding TSCA § 601(d)(4). 
18 Id., adding TSCA §§ 601(a)(7), (10), 601(b)(3).
19 Id., adding TSCA §§ 601(a)(3)(C)(ii), 601(a)(10), 601(b)(3).
20 Id., adding TSCA § 601(b).
21 Id., adding TSCA § 601(c).
22 Id., adding TSCA § 601(d)(1).
23 Id., adding TSCA § 601(d)(2).
24 Id., adding TSCA § 601(b)(3)(C).
25 Id., adding TSCA § 601(d)(3).

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