By: William F. Bresee, Esq.
Manufacturers and other employers, including construction contractors, are obligated to advise consumers and employees of risks related to exposure to hazardous products or areas with high concentrations of toxic substances. Many states, including California, have adopted programs and regulations requiring warnings related to chemicals in products. One such product, used in the manufacturing of composite wood products such as particle board, manufactured flooring, paneling, and even furniture, is formaldehyde, a product identified by California and the Environmental Protection Agency (EPA) as potentially causing cancer, birth defects and other effects. Formaldehyde is on California’s Proposition 65 list of hazardous products, and California’s Air Resources Board (CARB) requires warning labels regarding its presence in products and facilities. The EPA has, effective March 22, 2019, implemented regulations related to labeling requirements under Section VI of the Toxic Substances Control Act (TSCA) – the Formaldehyde Standards for Composite Wood Products Act.
The California Air Resources Board (CARB) approved an Airborne Toxic Control Measure (ATCM) in April 2007 to reduce formaldehyde emissions from composite wood products including hardwood plywood, particleboard, and medium density fiberboard (Title 17, California Code of Regulations, §93120-93120.12). The ATCM applies to panel manufacturers of finished goods (e.g., furniture, flooring, cabinets, etc.) that contain composite wood products which are destined for the California market. Fabricators of finished goods; distributors, importers, and retailers of panels and finished goods have, since 2009, been required to label such products as ATCM compliant; Phase II of the CARB standards went into effect in 2016 and such labeling has since been modified to provide that products are compliant with CARB ATCM Phase II. CARB has approved over 40 third party certifiers (TPCs) which verify that manufacturers’ products have formaldehyde emissions at or below the levels specified in the ATCM.
The EPA has, over the years, collaborated with CARB with respect to labeling requirements for products containing formaldehyde. On December 12, 2016, the EPA published a final rule to implement the Formaldehyde Standards for Composite Wood Products Act, which added Title VI to the Toxic Substances Control Act (“TSCA”), and to reduce formaldehyde emissions from composite wood products; the new regulations dovetailed with the existing CARB ATCM Phase II requirements, including its labeling requirements, and products labeled as CARB ATCM Phase II compliant were, by that very nature, EPA TSCA Title VI compliant.
Effective March 22, 2019, however, labeling products as complaint with CARB ATCM Phase II does not meet the labeling standards of EPA TSCA Title VI. As such, manufacturers, distributors and retailers of composite wood products must ensure that the products they provide to consumers are labelled as EPA TSCA Title VI compliant. We recommend that, for products delivered through California distribution channels, they also be labelled as CARB ATCM Phase II compliant. As the label notices differ, this would require packaging to contain both labels.
For any further analysis of how various contract provisions may work with your construction transactions and affect your interests, or for further analysis or if you have any questions on this article, please feel free to contact William F. Bresee of Leech Tishman Fuscaldo & Lampl at 626.796.4000.
For further analysis of the proper handling and labeling of EPA TSCA Title VI and CARB ASTM Phase II products, please feel free to contact Steven M. Taber at 626.796.4000.
William F. Bresee is a partner in Leech Tishman Fuscaldo & Lampl, LLC, and chairs its Construction and Energy Practice Groups. Bill can be reached at 626.796.4000 x 325 or 412.261.1600 or firstname.lastname@example.org. Please feel free to contact Bill with any questions you may have on this and other design and construction matters.
Steven M. Taber is a partner in Leech Tishman Fuscaldo & Lampl, LLC, and a member of its Environmental, Aviation & Aerospace, and Litigation Practice Groups. Steve can be reached at 626.796.4000 x 349 or email@example.com. Please feel free to contact Steve with any questions you may have on this and other environmental compliance matters.
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