EPA recently published its final rule restricting formaldehyde emissions from composite wood. The publication now triggers the rule’s effective date (Feb. 10, 2017) and the first compliance dates (December 12, 2017). The rule implements the formaldehyde standards found in Title VI of TSCA. EPA has expressly stated that the rule is “consistent, to the extent EPA deemed appropriate and practical considering TSCA Title VI, with the requirements currently in effect in California” under CARB’s ATCM Phase 2, but there are some differences that are bound to cause compliance headaches.
Emission Standards
EPA’s final rule contains the same emissions limits as CARB Phase 2:
- 0.05 ppm – hardwood plywood (veneer and composite cores)
- 0.09 ppm – particleboard
- 0.11 ppm – medium density fiberboard
- 0.13 ppm – thin medium density fiberboard.
Unlike CARB, the rule does not provide a blanket exemption for laminated products with a compliant core (although CARB is apparently reconsidering this). The rule exempts from testing and certification any laminated products made by attaching a wood/woody grass veneer with 1) a phenol-formaldehyde resin or 2) a resin formulated with no added formaldehyde as part of the resin cross-linking structure to a compliant core or platform. But it only delays the compliance date for other laminated products to Dec. 12, 2023, on the theory that the type of resin used to attach the veneers could increase formaldehyde emissions.
Third party certification and testing
The rule mirrors CARB compliance testing. Manufacturers must certify compliance through an EPA-approved third party testing lab. After certification, the third party certifier must test the products quarterly. Existing CARB-approved third party certifiers may certify to TSCA Title VI for up to two years. After that, EPA-approved certifiers must perform the certification.
Manufacturers must implement a quality control testing system for each product line with frequencies dependent upon the type of product and the production schedule (e.g., once-per-shift for MDF and particleboard to weekly for hardwood plywood depending upon the quantity produced). Like CARB, the rule adopts compliance test methods ASTM E1333-10 or ASTM D6007-02 for certification testing, and these same methods or their equivalents for quality control testing. The rule also requires testing of panels in unfinished condition, prior to application of a finishing or topcoat, no later than 30 calendar days after production.
Labeling
The new rule requires that panels or bundles of panels sold or offered for sale in the United States be labeled with the following information, which is largely equivalent to CARB labeling except for the certification statement:
- Panel producer’s name
- Lot number
- Third-party certifier number
- A statement that the products are TSCA Title VI certified.
EPA has stated that “entities are free to combine the TSCA Title VI labels with CARB labels so long as all the required information is present, legible, in English and accurate.” This unfortunately means new labels need to comply with both rules.
Fabricators must label finished goods made with composite wood, or the boxes in which they are sold, with the following:
- Fabricator’s name (or downstream entity)
- Date of fabrication (in month/year format)
- Statement that the finished goods are TSCA Title VI compliant.
Fabricator labels can identify the name of a responsible downstream entity if they obtain and maintain written consent. There is a de minimis exemption for finished goods – composite wood must not exceed 144 square inches based on the surface area of the largest face.
Like CARB, a manufacturer, distributor or importer must also include compliance information on the bill of lading or invoice.
Recordkeeping – manufacturers
Recordkeeping requirements are comparable to CARB, although records must be kept for three years instead of two.
Manufacturers must keep records of:
- All quarterly emissions testing
- All quality control testing
- Production records, including product identification, manufacture dates, and tracking information
- Records of changes to production methods that could impact compliance (e.g., resin use, composition, changes in press time)
- Purchaser and transporter contact information
- Corrective action/disposition of non-complying lots
- Representative copies of labels.
Manufacturers must also provide their third party certifiers with monthly production data and maintain copies of these production reports for three years.
Recordkeeping – importers, fabricators, distributors, and retailers
Importers, fabricators, distributors and retailers must take “reasonable precautions” to ensure compliance, much like CARB. This means that each member of the supply chain must obtain bills of lading, invoices, or comparable documents that include written certification from the supplier that either the panels/products comply or were manufactured prior to the compliance deadline.
In addition, importers must be able to provide EPA with records showing the following within 30 days of a request:
- The panel producer and date of production
- The supplier (if different) and the date of purchase.
Importers must also maintain an import certification under TSCA section 13 for imports after Dec. 12, 2018.
Enforcement Mechanism
Failure to comply is a prohibited act under TSCA section 15, subject to civil penalties of up to $37,500 per day and criminal penalties of up to $50,000 per day. It is unclear how EPA will enforce the limits, as it has not released an enforcement document like CARB did with its “Standard Operating Procedure” that emphasizes sample deconstructive testing to determine compliance.
Compliance Dates
The rule establishes “manufactured by” dates for implementation that apply to both composite wood products and finished goods. The EPA rule does not contain the elaborate system of sell-through dates like the CARB rule. But it does prohibit stockpiling.
Because the definition of manufacture includes import, this is effectively an “imported-by” date for imported composite wood products. The dates for compliance are:
- Composite wood products manufactured/imported before Dec. 12, 2017 are outside the rule.
- These products can be incorporated into finished goods indefinitely, as long as they are not stockpiled.
- Retailers, fabricators, and distributors can continue to buy and sell these products, as long as they are not stockpiled.
- Laminated products manufactured/imported before Dec. 12, 2023 are not subject to the emissions standards.
- But, laminated products manufactured/imported after Dec. 12, 2017 must be made from compliant composite wood cores.
Entities must maintain records to demonstrate manufactured-by dates. EPA’s rule document contains a complete list of compliance date, but it is not particularly user-friendly:
