United States: The Update To The Formaldehyde Emission Standards For Composite Wood Products: Adopting And Adapting From The COVID 19 Experience

On February 21, the Environmental Protection Agency (EPA) published a final rule to update the Formaldehyde Emission Standards for Composite Wood Products (the Amendments). What is notable about this rule is the adoption of compliance flexibilities that were initially allowed due to COVID-19. This rulemaking demonstrates EPA's acknowledgement that certain COVID-related flexibilities were needed, and therefore a rule should explicitly provide for reliance on those flexibilities in other situations.

Background

The Formaldehyde Standards for Composite Wood Products Act of 2010 established emission standards for formaldehyde from composite wood products. EPA published its initial rule implementing the standards (the Rule) at the end of 2016. EPA worked with the California Air Resources Board (CARB) to help ensure the final national rule was consistent with California's requirements for similar composite wood products.

Aside from the emission standards themselves, the Rule requires that hardwood plywood, medium-density fiberboard, and particleboard, as well as household and other finished goods containing these products be labeled as TSCA Title VI compliant. The Rule contains product-testing, recordkeeping, and import certification requirements. The Rule also established a third-party certification program for laboratory testing and oversight of formaldehyde emissions from manufactured and/or imported composite wood products.

Since then, EPA has amended the Rule on a number of occasions, to address issues such as compliance dates, technical changes to better align the EPA rule with CARB's, and to update voluntary consensus standards referenced in the rule.

The February 2023 Amendments — Added Flexibilities

On February 21, 2023, EPA finalized its most recent set of amendments to the Rule (the Amendments). As was the case with other amendments, this action updated ten voluntary consensus standards to reflect the current editions that are in use by regulated entities and industry stakeholders. The Amendments also clarified requirements and made technical corrections so that the EPA rules align with the CARB rules.

The Amendments also provided new flexibilities. The Rules established a process whereby third-party certifiers conduct inspections of wood composite products to certify compliance of such products with the emission standards. The Amendments give these certifiers the option to contract out inspections to a third party, instead of the certifier needing to perform the inspections themselves.

The final area addressed in the Amendments was the ability of third-party certifiers to conduct remote inspections. During the COVID-19 emergency, EPA provided temporary flexibility to allow the certifiers to conduct remote inspections instead of the routine in-person inspections. The Amendments make this flexibility permanent and will allow the certifiers to conduct the required initial on-site inspection or quarterly inspections and sample collections remotely when in person, on-site inspections are temporarily infeasible because of unsafe conditions.

A Sign of What Is To Come?

Foresight is good, and EPA's adoption of compliance flexibilities to address situations such as natural disasters and health crises demonstrates the incorporation of lessons learned from COVID 19 into the regulatory framework. During the COVID 19 emergency, EPA allowed for compliance flexibilities in other programs as well. It remains to be seen if EPA will continue to incorporate such flexibilities in other rules and for other programs in the future.

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