Tom Neltner, J.D., is Chemicals Policy Director
On July 27, the Environmental Protection Agency (EPA) signed a long-overdue final rule to protect people from formaldehyde off-gassing from composite wood products such as hardwood plywood, medium-density fiberboard, and particleboard. UPDATE: EPA published the final rule on December 12, 2016.
These products are commonly used to make furniture, cabinets, and flooring. Title VI of the Toxic Substances Control Act (TSCA) directed EPA to issue the rule and base it on the 2007 standards set by the California Air Resources Board (CARB) with a significant exception; EPA closed a loophole in CARB’s standards by extending them to cover laminated hardwood products. Such laminated products were the focus of the Lumber Liquidators controversy in 2014.
EPA effectively threaded a needle between the legitimate interests of small furniture and cabinet manufacturers and the need to protect people from the risks posed by formaldehyde. The final rule includes changes from the proposed rule to address concerns that compliance would have been difficult for small businesses that glue a thin layer of wood veneer (a process called lamination) to composite boards that themselves comply with the rule.
EPA concluded it needed to close CARB’s loophole when studies showed that laminating operations (which CARB had exempted) release formaldehyde in excess of the CARB emission standards. EPA’s rule gives laminators using most formaldehyde adhesives seven years to get into compliance.
Laminators can choose to use a glue demonstrated to meet the standards or conduct site-specific, third-party testing and certification to demonstrate that their products meets the standards. The rule exempts two types of glues, ones with no-added formaldehyde and ones made of phenol-formaldehyde. EPA provided a petition process for makers of other glues to secure an exemption and have the agency update the rule.
Hopefully, the resin/glue makers will rise to the challenge and provide additional options for laminators. Given the hazards posed by formaldehyde (it has been linked quantitatively to health concerns such as cancer and eye irritation and qualitatively to asthma and reduced fertility), getting this rule in place was essential to public health protection.
The final rule also has two provisions that set helpful precedents for other chemical safety regulation.
1. Transparency and Confidential Business Information (CBI). Consistent with long-standing practice, EPA determined that information about the compliance status of a particular lot, batch or shipment of wood products meets the statutory definition of a health and safety study and, therefore, is not eligible for CBI protection under exemption in TSCA. As a result, upon request, EPA must disclose compliance test results, the panel producer or product tested, and the test method used that are submitted to the agency. The agency also mandated disclosure of test results to companies that purchase directly from a certified manufacturer.
In addition, CBI claims for other types of information must be substantiated pursuant to new provisions in the TSCA reform law enacted in June 2016. The person claiming CBI must generally provide substantiation and certification of confidentiality claims. This claim expires after ten years unless renewed.
These provisions are critical since accreditation bodies and third party certifiers (TPC) must submit annual reports to EPA that provide this testing information. In addition, TPCs must notify EPA when they identify compliance failures based on required quarterly testing. EDF urges EPA to proactively make these annual reports publicly available on its website.
2. Impartiality of Third-Party Certifiers (TPCs). From children’s products to food to energy efficiency, there is a trend for regulatory agencies to rely on third parties to certify compliance with standards, especially where the activities occur in other countries. The problem is that the manufacturer being certified often gets to pick the firm to do the certifying, and it pays for the service. This situation presents a conflict of interest.
Under the final rule, EPA took steps to minimize the conflict by setting standards for “impartiality” that go beyond the narrow focus of financial transactions used by other agencies. The TPC must ensure that its personnel that are involved in certification decisions are not also engaged in any advocacy or consulting activities that may compromise the impartiality of the decision-making process. This prohibition extends to activities undertaken for other organizations that are legally separate from the TPC.
Organizations that accredit TPCs, known as accreditation bodies, must also ensure that persons making decisions are not also assessing the TPC. And people conducting the assessment must receive no financial benefit from the outcome.
When Congress enacted Formaldehyde Standards for Composite Wood Products Act in 2010, it added a new Title VI to the Toxic Substances Control Act (TSCA) and directed EPA to issue the final rules by January 1, 2013 – a deadline EPA obviously missed. Congress acted in response to an agreement reached between industry led by the Composite Panel Association and environmental groups represented by the Sierra Club. EPA missed the deadline by 3.5 years for four reasons:
- The Agency was given no additional resources to develop the resource-intensive rule.
- The Agency needed to wait to obtain results from a study of the formaldehyde emissions from laminated products that CARB requested.
- The Office of Management and Budget took a full year to review the proposed rule, instead of the 90 days allowed.
- EPA needed to provide for a second round of public comments, to seek additional information on approaches to ensure laminated hardwood products met the CARB emission standards.
What is next? The Department of Housing and Urban Development (HUD) now has 180 days to update it regulations for manufactured housing.
Though it took much longer than we would have preferred, EDF congratulates EPA on a job well done!