Final rule seeks to reduce exposure to formaldehyde vapors by establishing emission standards and labeling requirements for certain wood products.
Six years after the passage of the Formaldehyde Emission Standards for Composite Wood Products Act of 2010 (42 U.S.C. 2697), the US Environmental Protection Agency (EPA) has finally issued its final rule implementing the act (Final Rule). The Final Rule—based off the formaldehyde regulation issued by the California Air Resources Board (with which EPA collaborated in formulating the Final Rule)—seeks to reduce exposure to formaldehyde vapors by establishing emission standards and labeling requirements for certain wood products.
Formaldehyde is a chemical that is commonly used in wood glue for furniture and flooring. The potential health risks associated with this chemical were highlighted in the 2005 aftermath of Hurricane Katrina. After Katrina destroyed thousands of Gulf Coast residents’ homes, families were forced to live in temporary trailers provided by the Federal Emergency Management Agency (FEMA). After these displaced residents began reporting respiratory problems and eye irritation, air tests were conducted inside the trailers. These tests revealed high levels of formaldehyde fumes that had been leaking from wood used in the hastily constructed trailers.
Since this incident, some studies have linked formaldehyde to nasopharyngeal cancer, eye irritation, and respiratory problems, while other studies have raised questions about the chemical’s potential role in causing asthma and allergic conditions, particularly among children. In 2008, in response to these health concerns, California became the first US jurisdiction to issue emission limits on formaldehyde in building materials and furniture used in homes. Two years later, the US Congress enacted the Formaldehyde Emission Standards for Composite Wood Products Act, which added Title VI to the Toxic Substances Control Act (TSCA). This act directed EPA to issue regulations implementing the act.
The Final Rule sets formaldehyde emission standards applicable to hardwood plywood, medium-density fiberboard and particleboard, and finished goods containing these products that are sold, supplied, offered for sale, imported into, or manufactured in the United States. To show that they are in compliance with the emission standards, within one year, these products will need to be labeled as TSCA Title VI compliant. Furthermore, the Final Rule establishes an EPA TSCA Title VI Third-Party Certification Program to ensure that composite wood panel producers comply with the emission limits. Under this program, Third-Party Certifiers (TPCs) will regularly inspect composite wood panel producers and conduct emissions tests. TPCs who wish to participate in the program must apply to EPA for approval and receive program recognition before certifying products.
The Final Rule also includes exemptions for de minimis products and certain laminated products:
Many manufacturers and industry groups have raised concerns about the costs associated with the Final Rule. Specifically, small businesses have argued that the rule’s testing, labeling, and recordkeeping requirements will disproportionally impact smaller firms that aren’t equipped to handle additional costs. Since EPA’s initial version of the rule was first released for public comments in June 2013, the rule has undergone revisions in an attempt to address these concerns. Although EPA has attempted to minimize the Final Rule’s costs, it still estimates the new requirements will cost firms anywhere from $38 to $83 million per year. Furthermore, critics contend that even the Final Rule’s exemptions contain hidden costs because the application process for those exemptions still contains its own burdensome requirements.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Duke K. McCall, III